Can a firm that represents the local sheriff also take criminal defense work in the same jurisdiction?

Plain-English summary

A lawyer asked about the scope of the committee's Opinion 74-37, which held that members of a firm representing the local sheriff in civil matters may not engage in criminal defense work in the same jurisdiction because of possible conflict of interest and appearance of impropriety. The inquiry asked whether a firm representing the sheriff in criminal matters from time to time (for example, alleged police brutality cases) and not on a retainer fell within 74-37.

The committee concluded that Opinion 74-37 applies whether the firm represents the sheriff in civil or criminal matters, or both, and whether on a retainer or on some other fairly regular basis (not a totally irregular, sporadic, or isolated basis) that would or might establish the firm in the public's mind as having access to information useful in criminal defense. Asked whether 74-37 also reached a firm that represents the sheriff individually, or represents individual deputies in personal matters, rather than the sheriff's office in official duties, the committee found 74-37 applicable to those circumstances as well, unless the representation is so casual, sporadic, or unrelated in time to the firm's criminal defense work as not to create the appearance, however erroneous, of access to sheriff's-office information usable in criminal defense.

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 Treat this page as historical context, not current guidance.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 firm that represents the sheriff in occasional criminal matters still do criminal defense in that jurisdiction?

A: The opinion concluded Opinion 74-37 applies to civil and criminal representation alike, and to retainer or other fairly regular representation, so such a firm generally may not, unless the representation is casual or sporadic.

Q: Does it matter that the firm represents the sheriff individually rather than the sheriff's office?

A: Per the opinion, no; 74-37 applies to representing the sheriff individually or representing deputies in personal matters as well, unless the representation is so casual or sporadic as not to create an appearance of access to sheriff's-office information.

Background and rules framework

The opinion applied the conflict-of-interest and appearance-of-impropriety principles of its prior Opinion 74-37 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 Opinion 74-37 (sheriff's counsel and criminal defense)

See also

• FL Bar Ethics Op. 76-43: Reserve Police Officer and Criminal Defense
• FL Bar Ethics Op. 96-2: Law Firm Sheriff and Criminal Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-3
February 1, 1977
Advisory ethics opinions are not binding.
A law firm that represents the local sheriff either individually or in connection with official duties may not engage in criminal defense work in that same jurisdiction unless the representation of the sheriff is so casual or sporadic so as not to create the appearance of impropriety.
Opinion: 74-37
Vice Chairman Lehan stated the opinion of the committee:
A lawyer inquires as to the scope of this Committee's Opinion 74-37 saying that members of a law firm which represents the local sheriff in civil matters may not engage in criminal defense work in that same jurisdiction because of possible conflict of interest and appearance of impropriety.
This inquiry involves whether a firm which represents the local sheriff in criminal matters from time to time, e.g., alleged police brutality cases, and is not on a retainer is within the scope of Opinion 74-37.
The Committee believes that Opinion 74-37 applies whether the firm represents the sheriff in either civil or criminal matters, or both, and applies whether the firm represents the sheriff on a retainer basis or on some other fairly regular basis (and not a totally irregular, sporadic, or isolated basis) which would, or might, establish the firm in the public's mind as having access to information useful in criminal defense matters which would not otherwise be available to it.
The lawyer further asks whether Opinion 74-37 would preclude criminal defense work in that jurisdiction if the firm does not represent the sheriff's office in connection with official duties, either civilly or criminally, but represents the sheriff individually or represents individual deputies in personal matters. The Committee feels that Opinion 74-37 is applicable to these circumstances also unless the representation is so casual or sporadic or unrelated in time to the firm's criminal defense work as to not create the appearance, however erroneous, that it has access to information in the sheriff's office it could use in criminal defense matters and which would not otherwise be available to it.