Can a prosecutor advise crime victims about a civil restitution lien remedy without creating an attorney-client relationship?

Plain-English summary

An assistant state attorney asked about the Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994. Under the Act, when a defendant is convicted, the court must, on motion of the state or a victim, enter a civil restitution lien order in favor of the victim. The inquirer anticipated plea negotiations in which a defendant would plead only if the state and victims waived their right to seek the lien, and the office normally informs victims about plea offers and their consequences. The inquirer raised three concerns: advising victims on a civil matter the prosecutors were not trained in; the state's interest potentially being adverse to a victim's (a plea with a lien waiver might serve the public but not the individual victim); and possible exposure to suit for giving civil advice outside the prosecutorial function.

The committee concluded that an assistant state attorney may properly advise a victim that the remedy provided by the Act exists. The committee cautioned, however, that the attorney must be careful to advise the victim that the attorney represents the state only and that the victim is not the attorney's client; otherwise the attorney might inadvertently create an attorney-client relationship and trigger the attendant duties, such as competence and loyalty. To inform victims of their rights while avoiding the creation of an attorney-client relationship, the committee said the attorney's office should prepare a pamphlet (such as the brochure used in Dade County) and advise the victim to seek independent counsel about the matter.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 opinion analyzes the Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994 as it stood when the opinion issued; verify the current statute before relying on its terms.

Common questions

Q: Can a prosecutor tell crime victims about the civil restitution lien remedy?

A: Under this opinion, yes; an assistant state attorney may advise victims that the remedy provided by the Act exists.

Q: What must the prosecutor make clear when doing so?

A: Per the opinion, that the attorney represents the state only and the victim is not the attorney's client, to avoid inadvertently creating an attorney-client relationship and its duties of competence and loyalty.

Q: How did the committee suggest informing victims of their rights?

A: The committee said the office should prepare a pamphlet (like the one used in Dade County) and advise the victim to seek independent counsel about the matter.

Background and rules framework

The opinion addressed a prosecutor's communications with crime victims, who are unrepresented third persons whose interests may diverge from the state's. The committee's reasoning centers on avoiding the inadvertent formation of an attorney-client relationship and the duties that would follow, in the context of the Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994.

Citations and references

Statutes:

• Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994 (Fla. Stat. ch. 960)

See also

• FL Bar Ethics Op. 12-1: Plea Waivers of Ineffective Assistance and Prosecutorial Misconduct
• FL Bar Ethics Op. 11-1: IV-D Child Support Lawyers Represent the Department
• FL Bar Ethics Op. 94-4: Communicating With a Party Represented Only in a Related Matter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-94-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-94-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 94-2
February 1, 1995
Advisory ethics opinions are not binding.
An assistant state attorney may advise crime victims of the existence of the civil restitution lien remedy provided by the 1994 Act. The attorney, however, must inform victims that the attorney represents only the state and should advise victims to seek independent counsel regarding their rights under the law.
Statutes: Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994 [F.S. Ch. 960]

An Assistant State Attorney requests an opinion concerning the "Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994." The attorney states that:

[T]he Act mandates that when a defendant is convicted of a crime, the Court, upon motion of the State or the victim(s), must enter a civil restitution lien order in favor of the victim(s). ..We anticipate that there will be cases in which a defendant will be willing to plead guilty or nolo contendere only if the State and the victim(s) waive their right to seek a civil restitution lien under the Act. We normally fully inform all victim(s) about defense plea offers and the consequences of the plea, and are often asked by the victim(s) for our opinion as to the merits of the plea offer. However, we believe that a full discussion with the victim(s) about the consequences of a waiver of his/her rights under the Act raises ethical concerns, which are threefold:

(1) We would be advising the victim(s) on a civil matter, (i.e., the recording and executing of a civil lien), which we as prosecutors, with no training or experience in civil law, are not qualified to do.

(2) Our interest in many cases will be adverse to the victim(s), since a plea, even with a waiver of a civil restitution lien order, will in many cases be in the interest of all the people of the State of Florida, who we represent, but not in the interest of the actual victim(s).

(3) We may be subjecting ourselves to a lawsuit, since we would be giving advice on a civil matter, which is not within the scope of our prosecutorial function, and thus arguably not protected by prosecutorial immunity.

The inquirer asks if it is unethical for an Assistant State Attorney to advise victim(s) whether or not to move for a civil restitution lien order under the Act. The Committee is of the opinion that an Assistant State Attorney may properly advise a victim of the existence of the remedy provided by the Act. Nevertheless, the attorney must be careful to advise the victim that the attorney represents the state only and that the victim is not the attorney's client. Otherwise, the attorney may inadvertently create an attorney-client relationship with the victim and trigger all of the attendant duties, such as competence and loyalty, along with it. In order to inform the victims concerning their rights, while avoiding the problems of initiating an attorney-client relationship, the Committee recommends that the attorney's office prepare a pamphlet such as the brochure used in Dade County and advise the victim to seek independent counsel concerning the matter.