Can a part-time city prosecutor or the prosecutor's firm take criminal defense work in other courts?

Plain-English summary

A Florida lawyer whose associate served part-time as a city prosecutor asked whether he or other members of the firm could ethically handle criminal defense work in courts other than the municipal court. The committee answered in the negative.

The committee noted the geographical area and attorney population the inquiry came from, and concluded that no hardship or scarcity of available attorneys existed there. It rested the result on Florida Opinion 70-11 (released October 19, 1970), which prohibited a municipal prosecutor from serving in different capacities in jurisdictions other than the municipal court he prosecutes for, except in limited hardship areas, and held that the prohibition applied to associates and partners within the same firm.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It rested on Florida Opinion 70-11, which has since been withdrawn, and applied the former Code of Professional Responsibility. Conflicts for current and former government lawyers and the imputation of those conflicts within a firm are now addressed by Rules 4-1.11 and 4-1.10. Treat this page as historical context, not current guidance.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 part-time municipal prosecutor's law partners defend criminal cases elsewhere?

A: Under this opinion, no, absent the unavailability of other counsel. The committee held the prohibition reached associates and partners within the prosecutor's firm.

Q: Was there any exception?

A: The opinion recognized a limited hardship exception from Opinion 70-11 for areas with a scarcity of available attorneys, but found no such hardship in the inquiring lawyer's area.

Background and rules framework

The opinion applied the conflict principles of the former Code of Professional Responsibility through Florida Opinion 70-11. The conduct it addressed (a part-time government prosecutor's private criminal practice and its imputation to firm members) is now governed by Rule 4-1.11 on government lawyers and Rule 4-1.10 on imputed disqualification. The Model Rule analogues are Rule 1.11 and Rule 1.10.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility conflict provisions, applied via Florida Opinion 70-11 [now addressed by Rules 4-1.11 and 4-1.10]

Other opinions cited:

• Florida Opinion 70-11 [since withdrawn]: municipal prosecutor serving in other capacities

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-38/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-38-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-38
December 3, 1970
Advisory ethics opinions are not binding.
Absent the unavailability of other counsel, neither part-time city prosecutor nor members of his firm may handle criminal defense work in any court.
Opinion: 70-11
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar inquires, when having an associate as a city prosecutor, part-time, whether he or other members of the firm may ethically handle criminal defense work in courts other than the municipal court. This inquiry must be answered in the negative.
The Committee takes note of the geographical area and attorney population from which the inquiry originated. It is the consensus of the Committee that doubt exists as to any hardship situations or scarcity of available attorneys therein.
In final analysis, the matter is determined by Florida Opinion 70-11 (released October 19, 1970) [since withdrawn] which prohibits a municipal prosecutor from serving in different capacities in jurisdictions other than the municipal court for which he prosecutes, except in limited hardship areas. This injunction applies to associates and partners within the same firm.