Can a lawyer who is a municipality's retained police legal advisor also defend criminal cases in the county that do not involve that municipality's officers?

Plain-English summary

The committee was asked whether an attorney who serves as police legal advisor on retainer for a municipality may represent criminal defendants in the county's courts in cases that do not involve police officers or other municipal personnel. The committee reviewed Opinion 74-37, which held a firm could not represent the local sheriff in civil matters while doing criminal defense arising out of that department's arrests, and Opinion 76-43, which barred a reserve police officer functioning as a legal advisor from criminal defense in the relevant courts.

Applying DR 5-105 and Canon 9, the committee reasoned that as long as the lawyer does not appear in the municipal court or handle cases where municipal officers or employees are involved in any way, there is no reason to believe his independent professional judgment will be adversely affected. On Canon 9, the committee cautioned the attorney to avoid the appearance of impropriety but found that possibility must be real and not remote, and concluded the facts did not warrant a finding that an actual appearance of impropriety existed.

The committee overruled Opinion 76-43 to the extent it would prevent a municipal police legal advisor from representing criminal defendants throughout the entire county, and a majority concluded the attorney may engage in the proposed conduct. One member dissented, viewing the appearance of impropriety as substantial enough, in the public's eyes, to require that the conduct be proscribed.

Currency note

This opinion was issued in the late 1970s, 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 Treat this page as historical context, not current guidance.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.

The official PDF of this opinion does not carry a printed issuance date; the opinion number places it in the late 1970s.

Common questions

Q: Can a municipal police legal advisor also do criminal defense work?

A: The opinion concluded the lawyer may defend criminal cases in the county that do not involve the municipality's officers or personnel, and does not appear in the municipal court.

Q: What limits did the opinion set?

A: The opinion limited the conduct to cases not involving municipal officers or employees in any way, and to courts other than the municipal court.

Q: Did this change an earlier opinion?

A: Yes. The opinion overruled Opinion 76-43 to the extent it barred such a lawyer from representing criminal defendants throughout the entire county.

Background and rules framework

The opinion interprets CPR DR 5-105 and Canon 9. The conflict analysis corresponds to Model Rule 1.7 (Florida Rule 4-1.7) on concurrent conflicts of interest.

Citations and references

Rules of Professional Conduct:

• CPR DR 5-105; Canon 9 (Model Rule 1.7)

Other opinions cited:

• Florida Ethics Opinions 74-37, 76-43 (overruled in part by this opinion)

See also

• 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
• FL Bar Ethics Op. 81-7: County Government Firm Defending Traffic Clients

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-78-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-78-7-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 78-7
Advisory ethics opinions are not binding.
An attorney who serves as police legal advisor on retainer for a municipality may represent persons charged with criminal offenses in the courts of the county in cases which do not involve police officers or other personnel of the municipality.
CPR: DR 5-105; Canon 9
Opinions: 74-37, 76-43
Mr. Mead stated the opinion of the committee:
The Committee has been asked whether an attorney who serves as police legal advisor on retainer for a municipality may represent persons charged with criminal offenses in the courts of the county in cases which do not involve police officers or other personnel of the municipality.
In Opinion 74-37 this Committee stated that a law firm could not represent the local sheriff in civil matters while at the same time engaging in criminal defense work arising out of arrests made by the Sheriff's Department. The conflict of interest and appearance of impropriety in this situation is obvious. In Opinion 76-43 this Committee found that an attorney who was a reserve police officer and functioned as a legal advisor for the reserve policemen of a community could not engage in criminal defense work in the court where the police officers appeared nor in other courts in the same geographical area.
DR 5-105 prohibits a lawyer from accepting representation if the exercise of his independent professional judgment on behalf of a client would be likely to be adversely affected thereby. Canon 9 requires that a lawyer avoid even the appearance of professional impropriety. As to DR 5-105, under the circumstances of this inquiry the Committee feels that as long as the lawyer does not appear in the municipal court, or handle cases where police officers or other employees of the municipality are involved in any way, there is no reason to believe that his independent professional judgment will be adversely affected. With regard to Canon 9, although we caution the attorney to avoid the appearance of impropriety, we think this possibility must be real and not remote. It is the present Committee's belief that the facts presented do not warrant a finding that an actual appearance of impropriety exists and, to the extent that 76-43 would prevent a lawyer who serves as police legal advisor for a municipality from representing criminal defendants through the entire county, we overrule that opinion. Accordingly, it is the opinion of the majority of the Committee that the attorney may engage in the proposed conduct.
One dissenting member of the Committee feels that the appearance of professional impropriety in this case, when viewed by the public, is substantial enough to require that the attorney's conduct be proscribed.