Can a lawyer appointed a special assistant state attorney for a limited matter still defend criminal cases in other courts?

Plain-English summary

A lawyer was chosen by a county grand jury to serve as special counsel and, in that limited capacity for specific charges, was appointed an assistant state attorney. He normally handled criminal defense work, was accepting no defense cases in the court where he was prosecuting, and asked whether Opinion 70-11 (since withdrawn) precluded him from all criminal defense work, especially in federal court.

A majority of five found that the lawyer could defend criminal cases not only in federal courts but in state, county, and local courts other than the one where he was serving as assistant state attorney, reasoning that the rationale of 70-11 (since withdrawn) applies to prosecuting attorneys who regularly occupy that position, even part-time. One member of the majority would have limited the lawyer only as to persons indicted by the grand jury that employed him, or cases related to the subject matter of his employment. A dissenting minority could find no clear distinction between a regular part-time assistant state attorney and a special one retained for a specific matter, and believed 70-11 precluded the majority's result. The committee closed by noting that the subject of "working both sides of the street" transcends the categories of the Code and should be revisited from time to time.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and it turned on a prior opinion (70-11) that has since been withdrawn. The conflict-of-interest principles it applied are now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance.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 special assistant state attorney still take criminal defense cases?

A: Under this opinion, yes, in courts other than the one where he is prosecuting, including federal courts. The majority limited the prohibition to those who regularly hold the prosecutor's office.

Q: Were there narrower views on the committee?

A: Yes. One member of the majority would have limited the lawyer as to persons indicted by the grand jury that employed him or matters related to his employment, and a minority would have applied Opinion 70-11 (since withdrawn) to bar the defense work entirely.

Q: Did the committee treat this as a settled question?

A: No. The opinion observes that the issue of "working both sides of the street" cuts across criminal, civil, and administrative practice and should be revisited from time to time.

Background and rules framework

The opinion did not cite a Code provision; it reasoned from the committee's prior opinion 70-11 (since withdrawn) on prosecutors taking defense work. The conflict-of-interest principles are now addressed by Rule 4-1.7. The Model Rule analogue is Rule 1.7.

Citations and references

Other opinions cited:

• Florida Opinion 70-11 (since withdrawn): prosecutors acting as defense counsel.

See also

• FL Bar Ethics Op. 71-16: Defense Lawyer as a Special Prosecutor
• FL Bar Ethics Op. 72-48: Assistant State Attorney Whose Partner Is Appointed to Defend
• FL Bar Ethics Op. 75-43: Regular Defense Lawyer Cannot Also Prosecute

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-9-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-9
May 5, 1971
Advisory ethics opinions are not binding.
An assistant state attorney who serves in a limited capacity on special appointment may defend criminal cases in all courts of the state other than the one he is serving as prosecutor.
Opinion: 70-11
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar was chosen by a county grand jury to serve as special counsel and in such limited capacity involving specific charges is appointed an assistant state attorney. The attorney normally handles criminal defense work and although he is accepting no cases to defend in the court in which he is prosecuting charges as a result of the special appointment, he inquires whether Florida Opinion 70-11 [since withdrawn] precludes him from all criminal defense work and most particularly in federal courts.
A majority of five of the Committee finds that the inquirer may defend criminal cases, not only in federal courts, but also in courts, state, county and local, other than the court in which he is serving as assistant state attorney under the circumstances described. Essentially, the majority is of the opinion the rationale of 70-11 [since withdrawn] applies to prosecuting attorneys who regularly occupy such position even though on a part-time basis.
One member of the majority feels the inquirer should not be limited in the particular court in which he is serving except as to any person indicted by the grand jury which employed him in his special capacity or as to a case prosecuted which was in any way related to the subject matter of his employment. The tenor of this position is that if it is unethical to do at least that which is proposed by the inquirer, it is equally arguable it is unethical for the general counsel of one bank to bring suit against another bank, or for an attorney representing a liability insurance carrier to represent an injured person suing another when the latter has liability insurance, or other similar civil litigation situations ad infinitum.
A dissenting minority cannot find any clear or logical distinction between a regular, but part-time, assistant state attorney and a special assistant state attorney used or retained for a specific matter. The minority therefore believes 70-11 [since withdrawn] precludes the result announced by the majority.
The Professional Ethics Committee spent many man hours in developing 70-11 [since withdrawn]. It believes 70-11 [since withdrawn] to be a better work product and statement of the ethical considerations than previous opinions on the subject. There are those on the Committee who conclude 70-11 [since withdrawn] is liberal and goes too far, while others find it conservative and needing substantial relaxation. This subject may well be broader than that which is contained in the canons, ethical considerations and disciplinary rules of the CPR and, thus, it should be revisited from time to time since the issue of "working both sides of the street" transcends the criminal, civil, administrative, and other facets of our profession.