When one member of a law firm is a part-time municipal prosecutor, can the firm represent clients in personal injury cases arising from accidents the city's police investigated?

Plain-English summary

A municipality employed a lawyer part-time to prosecute violations of its ordinances in municipal court. That lawyer also practiced privately as a member of a law firm. The firm asked whether it, or any member, could represent litigants claiming or defending personal injury damages arising out of automobile accidents within the municipality when the municipal police had investigated the accidents and made charges.

The committee advised against such representation by the firm or any member, even though the police charges had been disposed of or transferred out of the municipal court to a criminal court of record or other non-municipal court. It noted that the effect of a lawyer's position as a part-time judge or prosecutor on his private practice had presented difficult questions of professional ethics with which the committee had previously dealt, citing Florida Opinion 70-11 (since withdrawn), and stated that the advice given was consistent with its prior expressions.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.7, 4-1.10, and 4-1.11 before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm take these accident cases if the member-prosecutor personally stayed out of them?

A: Under this opinion, no. The committee advised against the representation by the firm or any member of it, not just the lawyer who served as municipal prosecutor.

Q: Did it matter that the criminal charges had already been resolved or moved to another court?

A: No. The opinion advised against the representation even though the police charges had been disposed of or transferred out of the municipal court to a criminal court of record or other non-municipal court.

Background and rules framework

The opinion addressed the conflict between a part-time municipal prosecutor's public role and his firm's private personal injury work, and treated the disqualification as extending to the whole firm. In current Florida practice conflicts of interest are governed by Rule 4-1.7, imputation within a firm by Rule 4-1.10, and the special conflict rules for current and former government officers by Rule 4-1.11; the Model Rule analogues are Rules 1.7, 1.10, and 1.11.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; no specific disciplinary rule cited

Other opinions cited:

• Florida Opinion 70-11 (since withdrawn)

See also

• FL Bar Ethics Op. 72-48: A Prosecutor and His Partner as Appointed Defense Counsel
• FL Bar Ethics Op. 72-38: Assistant Public Defender and the Firm's Criminal Cases
• FL Bar Ethics Op. 72-41: "Of Counsel" and Imputed Conflicts

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-9-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-9
March 27, 1972
Advisory ethics opinions are not binding.
It is improper for members of a law firm to represent litigants in personal injury actions arising out of automobile accidents investigated and charged by municipal police when one member of the firm is employed by the municipality to prosecute violations of the municipality's ordinances.
Opinion: 70-11
Committeeman Kittleson stated the opinion of the committee:
A municipality employs a lawyer on a part-time basis to prosecute in municipal court violations of the municipality's ordinances. The lawyer also engages in private practice as a member of a law firm. The members of the law firm ask whether the firm, or any member of it, may represent litigants claiming or defending claims for personal injury damages arising out of automobile accidents within the municipality, when the municipal police have investigated the accidents and made charges.
The Committee advises against such representation by the firm or any member of it, even though the police charges have been disposed of or have been transferred out of the municipal court to a criminal court of record or other non-municipal court.
The effect of a lawyer's position as a part-time judge or prosecutor upon his private practice has presented difficult questions of professional ethics and responsibility, with which the committee has been previously concerned. See Florida Opinion 70-11 [since withdrawn]. We believe that the advice now given is consistent with our prior expressions.