Can a lawyer who sometimes handles criminal defense be appointed a special prosecutor in the same court?

Plain-English summary

A county solicitor described a local practice of appointing young attorneys as unpaid special assistant county solicitors for part-time duty in a court of record. These attorneys did not have extensive criminal practices, but they and their partners sometimes handled criminal defense in the same court. The solicitor asked whether such a special solicitor, if limited to arraignments, could also keep a defense practice in that court, and whether he could handle misdemeanor trials as a special solicitor, the goal being to meet the Florida Supreme Court's speedy-trial deadlines.

A majority of the committee approved the use of these attorneys for short periods when a bona fide speedy-trial emergency required their service at arraignment or trial, even though the attorneys or their partners did defense work in the same court, cautioning that the special solicitors should scrupulously avoid conflicts between individual cases. A minority would have made no determination, viewing any local hardship exception as a matter for the local court and consistent treatment of Opinions 70-11 (since withdrawn) and 70-38, and would have referred the inquirer to his local judge. The committee noted that Opinion 70-11 allowed no exception for special or assistant solicitors, and that the majority opinion partially overruled 70-11 to the extent that, in an emergency, the prosecuting authorities and courts could waive the general rule without those special solicitors violating the Code.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and it turned on prior opinions (70-11, since withdrawn, and 70-38). The conflict-of-interest principles it applied 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 Treat this page as historical context, not current guidance.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 part-time criminal defense lawyer also be appointed a special prosecutor in the same court?

A: Under this opinion, a majority allowed it in a bona fide speedy-trial emergency, for short periods, provided the lawyer scrupulously avoids conflicts between individual cases.

Q: Did this change the committee's earlier position?

A: Yes in part. The opinion states that the majority partially overruled Opinion 70-11 (since withdrawn), which had allowed no exception for special or assistant solicitors, to permit a waiver of the general rule in an emergency.

Q: Was the committee unanimous?

A: No. A minority would have declined to decide, treating any local hardship exception as a matter for the local court and consistent with Opinions 70-11 and 70-38, and would have referred the inquirer to his local judge.

Background and rules framework

The opinion did not cite a specific Code provision; it reasoned from the committee's prior opinions on prosecutors and defense counsel (70-11, since withdrawn, and 70-38) and from the Florida Supreme Court's speedy-trial rule. The conflict-of-interest principles at issue are now addressed by Rule 4-1.7, governing concurrent conflicts. The Model Rule analogue is Rule 1.7.

Citations and references

Other opinions cited:

• Florida Opinion 70-11 (since withdrawn): prosecutors acting as defense counsel.
• Florida Opinion 70-38: prosecutor-defender conflicts.

See also

• FL Bar Ethics Op. 72-48: Assistant State Attorney Whose Partner Is Appointed to Defend
• FL Bar Ethics Op. 75-43: Regular Defense Lawyer Cannot Also Prosecute
• FL Bar Ethics Op. 72-9: Municipal Prosecutor's Firm Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-16/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-16-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-16
June 28, 1971
Advisory ethics opinions are not binding.
In the event of a bona fide emergency under the "speedy trial" rule, attorneys who occasionally defend criminal cases in the same court may be appointed special county prosecutors.
Opinions: 70-11, 70-38
Chairman Massey stated the opinion of the committee:
The inquiring attorney is a county solicitor whose county has followed a practice of appointing young attorneys as special assistant county solicitors for part-time duty without compensation in a court of record. These men do not normally have extensive criminal practice, although they and their partners and associates from time to time handle criminal defense matters in the same court of record. We are asked if such a special solicitor, if limited to handling arraignments, might also maintain a defense practice within the court and further if this individual might also handle misdemeanor trials as a special solicitor. The inquirer advises he is attempting to cope with the time requirements for speedy trials as required by the Florida Supreme Court's rules.
A majority of the Committee would approve ethically the use of these attorneys for short periods of time when by reason of bona fide emergencies under the "speedy trial" rule such service at arraignment or trial would be required by the prosecuting office involved, even though such attorneys or their partners or associates are performing defense work in the same court. The special solicitors should, however, scrupulously avoid conflicts between individual cases.
A minority find that to be consistent with Florida Opinions 70-11 [since withdrawn] and 70-38 and the prior position of the Committee, no determination should be made by this Committee as to the application or existence of a local hardship exception to the general rule as it would control the functions of county solicitors. The minority believe the inquirer should be referred to his local court judge.
Opinion 70-11 [since withdrawn] does not allow any exception for the person serving as "assistant" or "special" county solicitor and the majority opinion herein partially overrules 70-11 [since withdrawn] to the extent that where an emergency would exist, the prosecuting authorities and the courts may find it necessary and appropriate to waive the general rule without those special solicitors being in a position of ethically violating the CPR.