Can a part-time city defender also defend private criminal clients?

Plain-English summary

An attorney served as a part-time city defender for a municipality, defending indigent persons two or three times a week, and asked whether he could also defend private clients in criminal cases in state, county, and municipal courts.

A majority of the committee concluded that such representation is proper in the absence of a statute, a municipal ordinance, or a contract with the municipality barring it. One committeeman pointed to Attorney General Opinions 068-23 and 068-31 interpreting Section 27.51(3), Florida Statutes, questioning whether there is any valid distinction between a public defender paid from state or county funds and one paid from municipal funds, and was of the opinion that those interpretations of Section 27.51(3) might prohibit the inquiring attorney from engaging in a private criminal defense practice.

Currency note

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 Treat this page as historical context, not current guidance.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 before relying on any specific requirement mentioned here.

Common questions

Q: Can a part-time city defender keep a private criminal practice?

A: A majority of the committee concluded he may defend private criminal clients in state, county, and municipal courts in the absence of a statute, ordinance, or contract barring it.

Q: Was the committee unanimous?

A: No. One committeeman, citing Attorney General Opinions interpreting Section 27.51(3), questioned whether that statute might prohibit the inquiring attorney from a private criminal defense practice.

Background and rules framework

The opinion addressed whether a part-time government defender's outside private criminal practice creates a conflict, a subject that corresponds to Model Rule 1.7 (conflicts of interest, including those arising from a lawyer's other responsibilities); the current Florida counterpart is Rule 4-1.7. The committee framed the limit as turning on any statute, ordinance, or contract, noting Section 27.51(3), Florida Statutes.

Citations and references

Statutes:

• Section 27.51(3), Florida Statutes (public defenders)

Other authorities cited:

• Fla. Atty. Gen. Op. 068-23; 068-31

See also

• FL Bar Ethics Op. 75-23: Associate of Assistant PD
• FL Bar Ethics Op. 75-14: Firm With Part-Time State Attorney

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-45/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-45-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-45
March 6, 1975
Advisory ethics opinions are not binding.
An attorney serving as part-time city defender for the municipality may ethically defend private clients in criminal matters in state, county and municipal courts in the absence of a statute, ordinance or contract barring such activity.
Statute: F.S. §27.51(3)
Misc.: Fla. Atty. Gen. Op. 068-23, 068-31
Vice Chairman Sullivan stated the opinion of the committee.
An attorney serves as a part-time city defender for a municipality, defending indigent persons two or three times a week. He asks whether he may with propriety defend private clients in criminal cases in state, county and municipal courts.
A majority of the Committee is of the opinion that such representation is proper in the absence of a statute, a municipal ordinance or a contract with the municipality barring such activity.
One Committeeman refers to Attorney General's Opinion 068-23 interpreting Section 27.51(3), Florida Statutes (no distinction under Section 27.51(3) between assistant public defender paid from state funds and one paid from county funds; neither can have private criminal law practice) and Attorney General's Opinion 068-31 (public defender cannot serve as city prosecutor as "otherwise engaging" in the practice of criminal law) [sic]. He questions whether there is any valid distinction between a public defender paid from state or county funds and one paid from municipal funds and is of the opinion that those interpretations of Section 27.51(3) may prohibit the inquiring attorney from engaging in a private criminal defense practice.