Can a county-court prosecuting attorney also defend criminal cases, whether in the same county's circuit court, in other counties, or in federal court?

Plain-English summary

A member asked three questions about a prosecuting attorney for a county judge's court: (1) whether he may act as defense counsel in criminal cases in the same county's circuit court; (2) whether he may continue defending a criminal case begun before his election as county prosecutor; and (3) whether he may accept employment to defend criminal cases in other counties' circuit courts or in the United States District Court.

Three members of the committee answered all three questions in the negative, relying on a line of ABA Professional Ethics Committee opinions (Nos. 16, 30, 55, 118, 186, 242, 261, and 262). The committee treated ABA Opinions 30 and 118 as controlling. Opinion 118 says a county attorney is the attorney for the state in the general enforcement of the criminal law, even though his activity is limited to a particular county. Opinion 30 reasons that allowing a public prosecutor to defend accused persons in other jurisdictions would tend to jeopardize cooperation among law enforcement officers, invite public misunderstanding and distrust, undermine public confidence and subject the prosecutor to suspicion, and lower the dignity and honor of the profession.

The committee was not unanimous. One member answered the first question negatively but the others affirmatively, and another member answered all questions affirmatively, reasoning primarily from the practical difficulties that might arise in large, sparsely populated judicial circuits. All members recognized that the answer to Question 2 would depend to some extent on timing: a newly elected prosecutor could have a duty to provide a defense if there was insufficient time to withdraw and no continuance could be obtained.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; conflicts of interest are now governed by Rule 4-1.7, and the conduct of current and former government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 county prosecutor defend criminal cases in the same county's circuit court?

A: A majority of the committee said no, treating the prosecutor as attorney for the state in the general enforcement of the criminal law within the county.

Q: Can he keep defending a case he started before taking office?

A: The majority said no, but all members recognized timing matters: a newly elected prosecutor could have a duty to provide the defense if there was no time to withdraw and no continuance could be obtained.

Q: Can he take criminal defense work in other counties or in federal court?

A: The majority said no, relying on ABA Opinion 30's concerns about cooperation among law enforcement officers, public confidence, and the dignity of the profession.

Q: Was the committee unanimous?

A: No. Three members answered all questions negatively; one answered only the first negatively; and one answered all questions affirmatively, citing practical difficulties in large, sparsely populated circuits.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics, concerning conflicting interests, as developed by a line of ABA opinions on prosecutors who also defend. Conflicts of interest are now governed by Rule 4-1.7, and the special rules for current and former government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11).

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rules 4-1.7, 4-1.11]

Other opinions cited:

• ABA Opinions 16, 30, 55, 118, 186, 242, 261, 262: prosecutors defending criminal cases; Opinions 30 and 118 treated as controlling

See also

• FL Bar Ethics Op. 65-17: A County Prosecutor in Civil Suits Against the County
• FL Bar Ethics Op. 66-62: A Prosecutor Later Representing a Wrongful-Death Claimant

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-72/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-72.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-72
December 15, 1964
Advisory ethics opinions are not binding.
(1) A prosecuting attorney before a county judge's court may not act as defense counsel in criminal cases in the circuit court of the same county. (2) An attorney who is employed to defend a criminal case in circuit court before his election as prosecutor, may not continue such employment after taking office. (3) Such a prosecuting attorney may not accept employment to defend criminal cases in the courts of other counties or in federal court.
Canon: 6
Opinions: ABA 16, 30, 55, 118, 186, 242, 261, 262
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses for our response the following questions:

1. May the Prosecuting Attorney for a county judge's court act as defense counsel in criminal cases in the circuit court of the same county?
2. May an attorney who was employed to defend a criminal case in the circuit court of a county before his election as county prosecutor for the county judge's court of the same county continue the employment after taking office?
3. May the prosecuting attorney for a county judge's court accept employment to defend criminal cases in the circuit courts of other counties or in the United States District Court?
   Three members of the Committee have answered each of the questions posed in the negative. These members rely upon a sizeable number of opinions rendered by the Professional Ethics Committee of the American Bar Association. ABA Opinions numbered 16, 30, 55, 118, 186, 242, 261, and 262 are pertinent to one or more aspects of the problems presented. Opinions 30 and 118 contain language which is deemed controlling. It is stated in Opinion 118 that "[a] county attorney is attorney for the state in the general matter of the enforcement of the criminal law, although the sphere of his activity is limited to a particular county." In Opinion 30, it is said that if a public prosecutor is allowed to defend persons accused of crime in other jurisdictions, such action (1) would tend to jeopardize cooperation between law enforcement officers of different jurisdictions, (2) would invite public misunderstanding and distrust, (3) would undermine public confidence and tend to subject the prosecutor to suspicion, and (4) would tend to lower the dignity and honor of the profession.
   One member of the Committee who responded answers the first question negatively, but answers all others in the affirmative. Another member answers all questions in the affirmative. These members based their reasoning primarily upon the possible impracticalities which might arise in large, sparsely populated judicial circuits.
   All Committee members would recognize that the response to Question 2 would depend to some extent upon the time element. The newly elected prosecutor could well have a duty to afford a defense if there was insufficient time to withdraw and a continuance could not be obtained.