Can a lawyer who is a reserve police officer and legal officer for the reserve police do criminal defense work in the same area?

Plain-English summary

The committee considered an attorney who is a reserve police officer and functions as "legal officer" for a community's reserve police, rendering legal opinions for them, where reserve officers perform all law enforcement functions of full-time officers, including court appearances. He asked whether he may do criminal defense work (a) in the court to which those officers make arrest citations returnable and (b) in other courts in the same area. The committee answered both questions in the negative.

Drawing on Opinion 74-37, which held a law firm may not represent the local sheriff in civil matters while doing criminal defense work because of conflict of interest and appearance of impropriety, the committee found both a potential conflict and an appearance of impropriety here. As to question (a), the potential conflict is that the defense attorney could be called upon to attack the credibility of the very officers he represents and is officially associated with, and the appearance of impropriety arises from the possibility that he could gain access to information through his police role. As to question (b), even where those officers do not appear as witnesses, the appearance of impropriety would seem to exist because of the cooperation and exchange of information commonly thought to exist among law enforcement agencies.

The committee cited Opinion 74-37 again for the point that even where an attorney representing the sheriff in civil matters does not in fact have access to criminal-side information, the appearance of impropriety bars him from criminal defense work. One member would have found the attorney not disqualified, in cases other than those where the municipality he serves is the prosecuting entity, if he is on call but in fact rarely called as a reserve officer.

Currency note

This opinion has been partially overruled by Opinion 78-7. It was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules and the later opinion before relying on any specific rule mentioned here.

Common questions

Q: Can a reserve police officer who is also a lawyer take criminal defense cases locally?

A: The opinion concluded he may not, in the court where those officers make arrests returnable or in other courts in the same area, though it has been partially overruled by Opinion 78-7.

Q: Why is criminal defense barred even in courts where the officers do not testify?

A: The opinion concluded the appearance of impropriety would still exist because of the cooperation and exchange of information commonly thought to exist among law enforcement agencies.

Q: Did any member disagree?

A: Yes. One member would not disqualify the attorney, except in cases where the municipality he serves prosecutes, if he is on call but rarely called as a reserve officer.

Background and rules framework

The opinion applies the Code's conflict-of-interest and appearance-of-impropriety principles drawn from prior Opinion 74-37, rather than a single cited Disciplinary Rule. The conflict analysis corresponds to Model Rule 1.7 (Florida Rule 4-1.7).

Citations and references

Other opinions cited:

• Florida Ethics Opinions 74-37, 74-37 (Reconsideration)

See also

• FL Bar Ethics Op. 78-7: Police Legal Advisor and Criminal Defense
• FL Bar Ethics Op. 78-8: Representing a Sheriff While a Partner Does Criminal Defense
• FL Bar Ethics Op. 96-2: Law Firm Sheriff and Criminal Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-43/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-43-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-43
May 25, 1977
Advisory ethics opinions are not binding.
An attorney who is a reserve police officer and also functions as "legal officer" for the reserve policemen of a community may not engage in criminal defense work in the court to which reserve police officers make arrest citations returnable nor in other courts in the same geographical area.
Note: This opinion is partially overruled by opinion 78-7.
Opinions: 74-37, 74-37 (Reconsideration)
Vice Chairman Lehan stated the opinion of the committee:
An attorney is a reserve police officer and also functions as "legal officer" for the reserve police in a community, rendering legal opinions for the reserve police. Reserve police officers, while performing their official duties, perform all law enforcement functions of full-time police officers, including the making of court appearances.
The attorney asks whether he may engage in criminal defense work (a) in the court to which police officers, including reserve police officers, make arrest citations returnable, and (b) in other courts in the same geographical area.
The Committee answers both questions in the negative.
In Opinion 74-37 this Committee felt that a law firm may not represent the local sheriff in civil matters and at the same time engage in criminal defense work due to conflict of interest and appearance of impropriety.
Likewise, under the circumstances of the present inquiry both the appearance of impropriety and conflict of interest could exist. More specifically, as to question (a), the potential conflict exists in that, as criminal defense attorney, the attorney could be called upon to attack the credibility of the police officers whom he not only represents but with whom he is officially associated. Also, the appearance of impropriety may result from the possibility that the attorney could, through his representation of the reserve police, and in his capacity as a police officer, gain information or access to information which would not otherwise be available to him.
As to (b), even though the attorney, while acting as a criminal defense attorney in courts in which such police officers apparently do not appear as witnesses, apparently would not be called upon to attack the credibility of those officers, the appearance of impropriety would seem to exist due to cooperation and exchange of information between various law enforcement agencies, commonly known, or thought, to exist to varying degrees.
See also our Opinion 74-37 where the Committee felt that even when an attorney who represents the sheriff in civil matters does not, in fact, have access to information in the sheriff's office which might be used in criminal cases (the sheriff's office being divided into separate departments, civil and criminal), the attorney may not also engage in criminal defense work due to the appearance of impropriety.
One member of the Committee is of the opinion that if the inquirer is on call but in fact rarely called as a reserve officer, he is not disqualified in cases other than those in which the municipality he serves is the prosecuting entity.