Can a lawyer serve as an assistant state attorney prosecuting misdemeanors while his law partner defends criminal cases in the same jurisdiction?

Plain-English summary

A lawyer asked whether he may serve as an assistant state attorney, prosecuting misdemeanors but not felonies, while his partner engages in criminal defense practice in the same jurisdiction, defending both felony and misdemeanor charges. The committee answered in the negative, relying on the reasoning of Opinions 75-43 and 75-14.

The committee grounded its conclusion in DR 5-105(D), which provides that no partner or associate of a lawyer or his firm may accept or continue employment if the lawyer is required to decline employment by reason of the conflicting interests referred to in DR 5-105.

Currency note

This opinion was issued in 1978, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a prosecutor's law partner do criminal defense in the same jurisdiction?

A: The opinion concluded the lawyer may not serve as an assistant state attorney while his partner defends criminal cases in the same jurisdiction.

Q: Does it matter that the prosecutor handles only misdemeanors?

A: No. The opinion reached its conclusion even though the lawyer would prosecute only misdemeanors while his partner defended both felony and misdemeanor charges.

Q: What rule produced this result?

A: The opinion relied on DR 5-105(D), under which a partner or associate may not take employment the conflicted lawyer himself would be required to decline.

Background and rules framework

The opinion interprets CPR DR 5-105(D), the imputation provision of the conflicts rule. This corresponds to Model Rules 1.7 and 1.10 (Florida Rules 4-1.7 and 4-1.10) on concurrent conflicts and their imputation within a firm.

Citations and references

Rules of Professional Conduct:

• CPR DR 5-105(D) (Model Rules 1.7, 1.10)

Other opinions cited:

• Florida Ethics Opinions 75-14, 75-43

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-78-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-78-5-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 78-5
April 5, 1978
Advisory ethics opinions are not binding.
An attorney may not serve as an assistant state attorney, even if only prosecuting misdemeanors, while his partner engages in criminal defense practice in the same jurisdiction, defending both felony and misdemeanor charges.
CPR: DR 5-105(D)
Opinions: 75-14, 75-43
Chairman Lehan stated the opinion of the committee:
A lawyer inquires as to whether he may serve as an Assistant State Attorney, prosecuting misdemeanors and not felonies, while his partner engages in criminal defense practice in the same jurisdiction, defending both felony and misdemeanor charges.
We answer in the negative for the reasons stated in Opinions 75-43 and 75-14. DR 5-105(D) provides that no partner or associate of a lawyer or his firm may accept or continue employment if the lawyer is required to decline employment by reason of the conflicting interests referred to in DR 5-105.