Can one lawyer serve at the same time as both public defender and county prosecutor?

Plain-English summary

A lawyer had been elected Public Defender for his judicial circuit in the November 1968 general election and expected to take that office in January 1969. He was already serving, by appointment of the Board of County Commissioners, as County Prosecuting Attorney for one of the counties in the circuit, and asked whether he could continue as Prosecuting Attorney after becoming Public Defender, noting that within his county there would be no one else available to take the prosecuting position.

The committee expressed sympathy but observed that the lawyer had voluntarily sought the Public Defender post and that the Public Defender role could be filled by an attorney from another county in the circuit. It expressed a strong view that there is such a fundamental conflict between the two positions that serving in both would clearly contravene Canon 6, and concluded that the inquirer should make whatever election he was advised to make but should not serve in both capacities.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. (The opinion carries a 68-series number under the bar's numbering, but its printed date is January 16, 1969.) It applied the former Canon 6 on conflicting interests. Concurrent conflicts of interest are now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer be both a public defender and a prosecutor at the same time?

A: Under this opinion, no. The committee found a fundamental conflict between the two roles such that serving in both would contravene Canon 6.

Q: Did the shortage of local lawyers change the answer?

A: No. The committee noted that the inquirer had voluntarily sought the Public Defender post and that the role could be filled by a lawyer from another county in the circuit, so the hardship did not justify holding both offices.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests, to the simultaneous holding of two opposing public roles in the criminal system. Concurrent conflicts of interest are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Code of Professional Responsibility; conflict duties now in Rule 4-1.7]

See also

• FL Bar Ethics Op. 69-26: Prosecutor Sitting as Judge
• FL Bar Ethics Op. 68-53: Suing and Defending Same Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-57/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-57-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 68-57
January 16, 1969
Advisory ethics opinions are not binding.
An attorney may not simultaneously serve as a Public Defender and County Prosecuting Attorney.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises that in the November 1968 general election he was elected Public Defender for his judicial circuit, and he expects to assume that office on the first Tuesday after the first Monday in January 1969. At present, he is serving, by appointment of the Board of County Commissioners of his own county (one of several counties within the circuit), as County Prosecuting Attorney. He inquires as to whether he may continue to serve in this capacity as Prosecuting Attorney subsequent to the assumption of his role as Public Defender. He points out that within the county of his residence, because of varying circumstances and the small number of resident lawyers, there would be no one else available to take this position.
We are sympathetic with the plight in which the inquirer finds himself, but note that he obviously voluntarily sought the post of Public Defender and that the position of Public Defender could definitely be filled by an attorney from some other county within the circuit. In any event, it is our strong feeling that there is such a fundamental conflict in these two positions that service in both would clearly contravene Canon 6. Accordingly, the inquirer should make such election as he may be advised, but should not serve in both capacities.