Can a town attorney and prosecutor temporarily sit as judge of the same municipal court?

Plain-English summary

The inquirer served as town attorney and prosecutor in the local municipal court and had been asked to serve as judge of that court when the municipal judge was absent. The arrangement contemplated that he would not sit judicially in any case in which he had taken part as town attorney or prosecutor.

The committee found it improper for an attorney to sit even temporarily as judge of a court in which he is normally the prosecuting officer. It reasoned that his natural relationship as the regular legal advisor of the arresting officers would render his positions hopelessly in conflict. The committee compared its earlier Opinion 60-22, which it noted has since been withdrawn.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on conflicting interests. Concurrent conflicts of interest are now addressed by Rule 4-1.7, and the conduct of judges is governed by the separate Code of Judicial Conduct. Treat this page as historical context, not current guidance.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 municipal prosecutor fill in as judge of the same court?

A: Under this opinion, no, not even temporarily. The committee held that the prosecutor's regular role as legal advisor to the arresting officers placed the two positions hopelessly in conflict.

Q: Did limiting the judge role to unrelated cases cure the problem?

A: No. Even with an understanding that the inquirer would not judge cases he had handled as prosecutor, the committee still found it improper for him to sit as judge of the court in which he normally prosecutes.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests. 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. The separate question of who may serve as a judge is now governed by the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Florida Opinion 60-22 [since withdrawn]

See also

• FL Bar Ethics Op. 69-25: Title Agent Disclosure Duties
• FL Bar Ethics Op. 69-32: Suing a Former Corporate Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-26/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-26-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 69-26
July 23, 1969
Advisory ethics opinions are not binding.
An attorney should not sit even temporarily as a judge of a court in which he is normally a prosecuting officer.
Canon: 6
Opinion: 60-22
Chairman MacDonald stated the opinion of the committee:
An inquirer who serves as town attorney and prosecutor in the local municipal court has been asked to serve as judge of the municipal court in the absence of a municipal judge. It would be understood that he would not serve in a judicial capacity in any case in which he has participated in any way in connection with his duties as town attorney or prosecutor. We think it improper in this instance for an attorney to sit temporarily as a judge of a court in which he is normally a prosecuting officer, in view of his natural relationship as the normal legal advisor of the arresting officers which would render his positions hopelessly in conflict. Compare our Opinion 60-22 [since withdrawn].