Can the law partner of an assistant state attorney take criminal defense cases?

Plain-English summary

A local grievance committee, through its chairman, asked whether the law partner of an assistant state attorney could engage in criminal defense practice, and if so in what courts. The committee first noted that under Board of Governors policy it could opine only for members of the Bar about their own present or proposed conduct, not for local grievance committees, but it addressed the question because the chairman's own proposed conduct was of the same nature.

The committee concluded that the partner of a public prosecutor may not represent defendants in criminal cases within the jurisdiction of the prosecutor, because it is unethical for one member of a firm to oppose the interests of the state while another member represents those interests. Drawing on a line of ABA opinions, it explained that an assistant prosecutor may not defend a criminal case and neither may his partner; that a public prosecutor should not represent criminal defendants even in another state; and that even a county attorney handling only civil matters should not defend criminal cases in that county. Because the relations of partners are so close, the firm and all its members are barred from accepting any employment any one member is prohibited from taking.

Currency note

This opinion was issued in 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on adverse and conflicting interests. Conflicts of this kind are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (concurrent conflicts), Rule 4-1.10 (imputation within a firm), and Rule 4-1.11 (former and current government officers); the Model Rule analogues are Rules 1.7, 1.10, 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 Treat this page as historical context, not current guidance.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 prosecutor's law partner defend criminal cases?

A: No. The committee concluded that the law partner of an assistant state attorney may not engage in criminal defense practice, because it is unethical for one member of a firm to oppose the state's interests while another represents them.

Q: Why does the bar on the prosecutor extend to the whole firm?

A: The committee said the relations of partners are so close that the firm and all its members are barred from accepting any employment that any one member is prohibited from taking.

Q: Does it matter which court the defense work is in?

A: The opinion barred representing defendants in criminal cases within the jurisdiction of the prosecutor, citing ABA authority that even a prosecutor should not defend criminal cases in another state and that a civil-only county attorney should not defend criminal cases in that county.

Background and rules framework

The opinion applied the former Canon 6 on conflicting interests, together with the principle that one partner's disqualification is imputed to the firm. Those subjects are now covered by Rule 4-1.7 of the Rules Regulating The Florida Bar (concurrent conflicts), Rule 4-1.10 (imputation of conflicts within a firm), and Rule 4-1.11 (special conflict rules for government lawyers); the Model Rule analogues are Rules 1.7, 1.10, and 1.11. The committee rested its conclusion entirely on a series of ABA ethics opinions.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.10, and 4-1.11]

Other opinions cited:

• ABA Opinion 16 (1929): a prosecutor's partner may not represent defendants in the prosecutor's jurisdiction
• ABA Opinion 142 (1935): improper for an assistant prosecutor or his partner to defend a criminal case
• ABA Opinion 30 (1931): a public prosecutor should not represent criminal defendants even in another state
• ABA Opinion 186 (1938): a civil-only county attorney should not defend criminal cases in that county
• ABA Opinions 33, 49, 50, 72 (1931-1932): a firm is barred from employment any one member could not take

See also

• FL Bar Ethics Op. 66-62: Prosecutor Later Representing a Wrongful-Death Claimant
• FL Bar Ethics Op. 67-21: Former Assistant State Attorney and a Fee Split
• FL Bar Ethics Op. 67-12: City Attorney Advising on Legislation

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-1
January 5, 1966
Advisory ethics opinions are not binding.
The law partner of an assistant state attorney may not engage in criminal defense practice.
Canon: 6
Opinions: ABA 16, 30, 33, 49, 50, 72, 142, 186
Chairman Kittleson stated the opinion of the committee:
Under prevailing policies established by The Florida Bar Board of Governors, the Committee on Professional Ethics is not allowed to give opinions to local bar associations or local grievance committees. In fact, the Ethics Committee is authorized only to give opinions to members of The Florida Bar in good standing, concerning their own present or proposed conduct. If local grievance committees desire advice on questions of professional ethics, they may direct the request to the Board of Governors, who will assign the request, or otherwise take action upon it, as the Board sees fit.
The inquiring attorney indicated that the local grievance committee, of which he is chairman, is faced with the question: may a law partner of an assistant state attorney engage in criminal defense practice, and, if so, in what courts?
The partner of a public prosecutor may not represent defendants in criminal cases within the jurisdiction of the prosecutor; it is clearly unethical for one member of the firm to oppose the interests of the state while the other member represents those interests. ABA Opinion 16 (1929). It is improper for an assistant prosecutor to defend a client in a criminal case, and also improper for his law partner to do so. ABA Opinion 142 (1935). A public prosecutor should not represent criminal defendants even in another state. ABA Opinion 30 (1931). Even a county attorney, who represents the county government in civil matters only, should not represent criminal defendants in that county. ABA Opinion 186 (1938). The relations of partners in a law firm are so close that the firm and all the members thereof are barred from accepting any employment that any one member of the firm is prohibited from taking. ABA Opinion 72 (1932); ABA Opinion 50 (1931); ABA Opinion 49 (1931); ABA Opinion 33 (1931).