Can a lawyer represent a sheriff in civil matters when a partner in the same firm handles criminal defense in the same county?

Plain-English summary

The committee considered whether an attorney's contemplated representation of a sheriff in civil and administrative matters would be improper when his partner or associate engages in criminal defense practice in the same county. The inquiring lawyer described safeguards: the sheriff agreed no representation would be provided where an actual conflict existed, and the state attorney had informally perceived no conflict. The committee found, however, that the intended attorney-client relationship would be continuing or recurring rather than isolated.

The committee distinguished prior Opinion 76-3, which recognized that an isolated instance of representation (such as where the sheriff's regular attorney is unavailable) does not present the same likelihood of conflict, and found the recurring representation fell squarely within prior Opinions 74-37 and 76-3 holding such conduct improper. Applying DR 5-105 and DR 9-101, and treating the relationship under DR 5-105(D) as though the inquiring attorney himself both represented the sheriff and defended criminal matters, the committee concluded the representation would create recurring conflicts and an appearance of impropriety, with the lawyer identified publicly as "the sheriff's lawyer."

The committee recognized a narrow hardship exception from prior Opinions 70-11 and 72-48: upon a circuit judge's determination that a hardship situation effectively deprived the sheriff of counsel and that no DR 5-105 conflict was apparent in a particular matter, the attorney could undertake that representation. The committee stressed the exception should be invoked only in rare instances of real hardship, that the determination rests with the circuit court's fact-finding capability, and that a state attorney's approval cannot substitute for the requisite judicial determination.

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 Treat this page as historical context, not current guidance.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.

As the opinion's own note records, it is partially overruled by Opinion 96-2. The official PDF does not carry a printed issuance date; the opinion number places it in the late 1970s.

Common questions

Q: Can a firm represent a sheriff in civil matters while a partner defends criminal cases in the county?

A: The opinion concluded recurring representation of that kind is improper, absent emergency or hardship circumstances established by a court.

Q: Did the disclosed safeguards and state attorney's blessing cure the conflict?

A: No. The opinion concluded the state attorney's approval cannot take the place of the requisite judicial determination, and the recurring nature of the representation created the conflict.

Q: Is there any exception?

A: The opinion recognized a narrow hardship exception available only on a circuit judge's case-by-case finding that the sheriff would otherwise be deprived of counsel and no DR 5-105 conflict was apparent.

Background and rules framework

The opinion interprets CPR DR 5-105 and DR 9-101, including the imputation provision DR 5-105(D). These correspond 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; DR 5-105(D); DR 9-101 (Model Rules 1.7, 1.10)

Other opinions cited:

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

See also

• FL Bar Ethics Op. 96-2: Law Firm Sheriff and Criminal Defense
• FL Bar Ethics Op. 78-7: Police Legal Advisor and Criminal Defense
• FL Bar Ethics Op. 81-7: County Government Firm Defending Traffic Clients

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-78-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-78-8-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 78-8
Advisory ethics opinions are not binding.
An attorney's representation of a sheriff in civil and administrative matters would be improper, absent emergency or hardship circumstances, when his partner or associate attorney is engaged in criminal defense practice within the same county.
Note: This opinion is partially overruled by opinion 96-2.
CPR: DR 5-105, DR 9-101
Opinions: 70-11, 72-48, 74-37, 76-3
Mr. Ervin stated the opinion of the committee:
An attorney inquires whether his contemplated representation of a sheriff in civil and administrative matters would be improper when his partner or associate attorney is engaged in criminal defense practice within the same county.
The attorney recites that he is unaware of any other law firm in the area which would not be subject to the same problem; that the sheriff has agreed that no representation would be provided by the inquiring attorney in matters in which there would be an actual conflict of interest, such as where the conduct of the sheriff or employees of his office was in question in a case in which his associate lawyer was representing a defendant; and that because of the limited nature of the inquiring lawyer's intended representation, the state attorney for the circuit in which the county is located has informally indicated he perceived no conflict arising from the representation.
Nevertheless, the information provided by the inquiring attorney demonstrates that the intended attorney-client relationship will be a continuing or recurring one and that it is contemplated the inquiring attorney will be called upon to represent the sheriff in various future matters.
In prior Opinion 76-3 the Committee has recognized that an isolated or irregular instance of representation, such as where the sheriff's "regular" attorney is unavailable, does not present the same potential or likelihood of conflict of interest or appearance of impropriety. In the instant inquiry, however, the intended representation is recurring rather than isolated.
Thus the intended representation falls squarely within that considered and advised to be improper in prior Opinions 74-37, 74-37 (Rec.), and 76-3. The Committee has again considered this recurring problem in light of the commands of Disciplinary Rules 5-105 and 9-101 and related Ethical Considerations and adheres to its former opinions. The continuing or recurring intended representation of the sheriff in the instant inquiry would present equally recurring pitfalls of potential conflict, and would also unavoidably create the appearance of impropriety to the extent the inquiring attorney was identified in the mind of the public and others as "the sheriff's lawyer" while his associate was actively engaged in defense of criminal cases.
With respect to the foregoing it must also be considered that in light of the commands of Disciplinary Rule 5-105(D) the intended relationship must be judged as though the inquiring attorney was, himself, both representing the sheriff and engaging in representation of defendants in criminal matters.
Thus, the Committee concludes that the intended representation would not be proper, absent truly emergency or hardship circumstances. As to the aforementioned exception, the Committee is of the view that the "hardship" exception recognized by prior Opinions 70-11 [since withdrawn] and 72-48 would be equally pertinent to the present type of circumstance. Under such exception, upon a determination by a circuit judge that such a "hardship" situation existed as to effectively deprive the sheriff of assistance of counsel and that no conflict prohibited by DR 5-105 was apparent in a particular intended representation, then the attorney could undertake that particular representation.
With respect to the aforementioned hardship exception, the Committee is of the view that same should be invoked only in the rare instance of real hardship wherein it appears that, without intervention of the court, the sheriff will be prejudiced by the unavailability of counsel. The ultimate determination of whether such a hardship situation exists must be made on a case-by-case basis dependent upon facts as they exist within the county at the time. The circuit court possesses the fact-finding capability which this Committee lacks for such a factual determination.
Approval (formal or informal) of a state attorney cannot take the place of the requisite judicial determination.