Can a lawyer with a regular criminal defense practice also accept appointments to prosecute unrelated cases?

Plain-English summary

A former assistant state attorney, now in private practice and regularly representing criminal defendants in his judicial circuit, was asked by the state attorney whether he would accept appointment to prosecute criminal cases in that circuit on a case-by-case, apparently infrequent basis. He asked whether he could accept such appointments while continuing his defense practice. A majority of the committee concluded he could not.

The committee reviewed prior opinions on simultaneously prosecuting and defending: Opinion 70-11 (since withdrawn) set guidelines and stated state attorneys or assistants should not serve as criminal defense counsel in any county, with limited hardship exceptions (addressed in 71-16 and 72-48); Opinion 71-9 had limited 70-11's rationale to lawyers occupying a prosecuting position regularly. Citing Opinions 74-37 and 76-3, the committee restated its concern about the appearance of impropriety where a lawyer with a criminal defense practice has a continuing professional relationship with law enforcement, which could mean attacking the credibility of witnesses he vouches for elsewhere, appearing to have access to information usable in defense, or arguing statutory interpretations he would attack in other cases. Those concerns led the majority to find the dual representation improper and to adhere to Opinion 70-11. A minority would allow such assignments if on a sporadic or isolated basis, not part of a continuing relationship in time or subject with the defense cases.

Currency note

This opinion was issued in 1977, 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 Treat this page as historical context, not current guidance.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 regular criminal defense lawyer take part-time prosecution appointments?

A: The opinion concluded a majority view was that he may not, even on an infrequent, case-by-case basis.

Q: Why did the committee find a problem?

A: Per the opinion, the concern was the appearance of impropriety from a defense lawyer's continuing relationship with law enforcement, such as attacking witnesses he vouches for elsewhere or appearing to have access to prosecution information.

Q: Did anyone disagree?

A: Yes. A minority would allow such assignments if sporadic or isolated and not part of a continuing relationship in time or subject with the lawyer's defense cases.

Background and rules framework

The opinion applied the conflict-of-interest and appearance-of-impropriety principles developed in its prior opinions (notably 70-11, 74-37, and 76-3) under the former Code of Professional Responsibility. That conflict analysis corresponds to Model Rule 1.7 (conflicts of interest); the current Florida counterpart is Rule 4-1.7.

Citations and references

Other opinions cited:

• Florida Ethics Opinions 70-11 (since withdrawn), 71-9, 71-16, 72-48, 74-37, 76-3

See also

• FL Bar Ethics Op. 76-3: Sheriff's Counsel and Defense
• FL Bar Ethics Op. 76-43: Reserve Police Officer and Criminal Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-43/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-43-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-43
April 27, 1977
Advisory ethics opinions are not binding.
A former Assistant State Attorney who regularly represents criminal defendants in his private practice may not serve as prosecutor in criminal cases unrelated to his private practice.
Opinions: 70-11, 71-9, 71-16, 72-48, 74-37, 76-3
Chairman Sullivan stated the opinion of the committee:
A former assistant state attorney is now in private practice and regularly represents defendants in criminal cases in the courts in the judicial circuit in which his office is located. The state attorney in that judicial circuit has asked him whether he would agree to accept appointment to prosecute criminal cases in that circuit on a case-by-case and what appears to be an infrequent basis. He asks if he may properly accept such appointments and at the same time continue with his criminal defense practice. A majority of the Committee is of the opinion that he may not.
In prior opinions, the Committee has dealt with a number of inquiries about prosecuting and defending criminal cases at the same time. Opinion 70-11 [since withdrawn] set out guidelines for prosecutors and municipal judges serving in different capacities in jurisdictions other than the ones in which they served as prosecutor or judge. Subsection (f) of that opinion stated that state attorneys or assistants should not serve as criminal defense counsel in any county. Subsections (b) and (d) made provision for certain hardship exceptions.
Opinions 71-16 and 72-48, dealing with hardship exceptions not present here, allowed limited dual representation.
In Opinion 71-9, the Committee majority approved a criminal defense lawyer's accepting appointment as special counsel to a county grand jury as an assistant state attorney to handle specific matters and, at the same time, continuing with a criminal practice in all courts other than the court in which he was serving as special counsel. In that opinion, a majority of the Committee limited the rationale of Opinion 70-11 [since withdrawn] to prosecuting attorneys who occupied that position regularly, whether full-time or part-time.
In Opinions 74-37 and 76-3 (published February 3, 1977), the Committee expressed concern about the appearance of impropriety that can result when a lawyer or law firm with a criminal defense practice has a continuing professional relationship with law enforcement authorities. It could take the form of the lawyer having to attack the credibility in a criminal defense of witnesses whose credibility the same lawyer is vouching for in other cases. It could take the form of having or appearing to have access to information as a special prosecutor he could use in criminal defense cases. It could take the form of arguing the validity of statutes or arguing interpretations of them that he would attack in defending other cases.
Those concerns continue. Because of them, a majority of the Committee is of the opinion that such dual representation is improper and would adhere to Opinion 70-11 [since withdrawn].
A minority of the Committee is of the opinion that the attorney may properly accept such assignments provided they are on a sporadic or isolated basis and not part of a continuing relationship in time or subject between those cases and the criminal cases in which he is defending.