Can a law firm that represents the sheriff in civil matters also handle criminal defense work?

Plain-English summary

A law firm represented the local sheriff in civil matters. One member of the firm had an active criminal defense practice and, before taking on any matter arising from an arrest or action by the sheriff's department, told each client that the firm represented the sheriff. The sheriff knew a member of the firm practiced criminal law, and the criminal lawyer sometimes substituted for the lawyer who handled the sheriff's civil work. The firm asked whether it could continue both the sheriff representation and the criminal defense practice.

A majority of the committee concluded this would be improper. It found an appearance of impropriety from the possibility that a firm member could, through the civil representation of the sheriff, gain access to information he could use in criminal defense matters that would otherwise be unavailable, even if he did not in fact obtain or use it. It also found a possible conflict of interest because defending a criminal matter could involve attacking the credibility of the sheriff or employees of his office. The committee cited prior analogous opinions, noting that two of them (70-11 and 71-7) had since been withdrawn.

Currency note

Note: The Florida Bar states that this opinion is partially overruled by Opinion 96-2. This opinion was issued in 1975, 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 Treat this page as historical context, not current guidance.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 Rule 4-1.7 and Opinion 96-2 before relying on any specific requirement mentioned here.

Common questions

Q: Can a firm represent the sheriff in civil matters and also defend criminal cases?

A: This opinion concluded it would be improper, citing an appearance of impropriety and a possible conflict of interest. The Florida Bar states the opinion is partially overruled by Opinion 96-2, so check that later opinion.

Q: What was the conflict the committee identified?

A: Per the opinion, criminal defense could require attacking the credibility of the sheriff or his employees, and the civil representation could give the firm access to information unavailable to other defense lawyers.

Background and rules framework

The opinion rested on the former Code of Professional Responsibility's concern with conflicts of interest and the appearance of impropriety. Those concerns correspond to Model Rule 1.7 (concurrent conflicts of interest) and current Florida Rule 4-1.7. The opinion's "appearance of impropriety" standard came from the former Code; the current Rules analyze the question through conflict-of-interest and confidentiality principles, and Opinion 96-2 revisits the sheriff/criminal-defense question.

Citations and references

Other opinions cited:

• Florida Opinions 68-35, 70-11 (since withdrawn), 70-38, 71-7 (since withdrawn), 71-9, 71-17: prior treatment of analogous conflict questions

See also

• FL Bar Ethics Op. 96-2: Law Enforcement and Criminal Defense
• FL Bar Ethics Op. 76-3: Sheriff's Counsel and Defense
• FL Bar Ethics Op. 74-45: Part-Time City Defender

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-37/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-37-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-37
February 18, 1975
Advisory ethics opinions are not binding.
Members of a law firm that represents the local sheriff in civil matters may not engage in criminal defense work because of the possibility of a conflict of interest.
Note: This opinion is partially overruled by Opinion 96-2.
Opinions: 68-35, 70-11, 70-38, 71-7, 71-9 and 71-17
Vice Chairman Sullivan stated the opinion of the committee:
A law firm represents the local Sheriff in civil matters. A member of the firm is active in criminal defense practice and, before accepting representation in any matter arising out of arrest or action by the Sheriff's Department, advises each client that the firm represents the Sheriff. The Sheriff is aware that a member of the firm practices criminal law. In fact, the attorney in the firm with the criminal law practice sometimes substitutes for the attorney who usually handles civil matters for the Sheriff.
A member of the firm asks whether the firm may properly continue both the representation of the Sheriff and the criminal defense practice.
A majority of the Committee believes that this would be improper because it would involve at least an appearance of impropriety and a possible conflict of interest. The appearance of impropriety results from the possibility that a member of the firm could through representation of the Sheriff in civil matters gain information or access to information he could use in criminal defense matters and which would otherwise not be available to him, even though he did not in fact obtain or use it. The possibility of a conflict of interest occurs from the fact that defense of a criminal matter could involve attacking the credibility of the Sheriff or employees in his office.
For prior Opinions dealing with analogous questions see: 68-35, 70-11 [since withdrawn], 70-38, 71-7 [since withdrawn], 71-9 and 71-17.