Can a law firm that represents local law enforcement agencies on civil matters also do criminal defense work in the same county?

Plain-English summary

A firm had one attorney serving as general counsel to a county sheriff on civil matters (including civil forfeiture) and administrative matters, while another attorney wished to pursue a criminal defense practice in the same county. The firm asked, through five hypotheticals, whether a conflict would arise in various criminal cases involving the Florida Highway Patrol, a city police department, or the State Attorney's office, and whether the answers changed if the same attorney also occasionally represented the city police on civil forfeiture matters.

The committee had previously (Opinions 74-37, 74-37 (Reconsideration), and 78-8) per se prohibited a firm from simultaneously representing a local law enforcement agency and engaging in criminal defense work. On reconsideration here, it found those opinions overly broad and overruled them to the extent they conflicted with this narrower opinion. Applying Rule 4-1.7(b), the committee held that the firm could undertake the dual representations if the matters were unrelated, the firm reasonably believed its independent professional judgment on behalf of each set of clients would not be affected, and all affected clients consented after full disclosure (consistent with Opinion 75-33, which had receded from the earlier view that government entities could not consent).

Applying these principles, the committee reached three results. Where the firm's law enforcement clients are not involved in any way in a criminal matter, Rule 4-1.7(b) ordinarily is not triggered. Where agency personnel are involved in some way (for example, a minor part in an investigation), the firm may represent the defendant if it reasonably believes its judgment will not be affected and the clients consent. But where a law enforcement client is involved in a direct and material way (for example, the firm would have to cross-examine sheriff's department personnel), the firm may not undertake the criminal representation even with consent, because a disinterested lawyer would conclude the client should not agree. The committee declined to render a global opinion, holding that each situation must be resolved individually.

Currency note

This opinion was issued in 1996, 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: Is a firm that represents a sheriff automatically barred from all criminal defense in that county?

A: No. The committee overruled its earlier per se prohibition and concluded that dual representation could be permissible depending on the facts, analyzed under Rule 4-1.7(b).

Q: When can the firm take a criminal case despite representing law enforcement?

A: Per the opinion, where the matters are unrelated, the firm reasonably believes its independent professional judgment will not be affected, and all affected clients consent after full disclosure; if the law enforcement client is uninvolved, Rule 4-1.7(b) ordinarily is not even triggered.

Q: When is the conflict nonwaivable?

A: The committee concluded that where a law enforcement client is involved in the criminal case in a direct and material way, such as having to cross-examine that agency's personnel, the firm may not undertake the representation even with client consent.

Background and rules framework

The opinion interpreted Rule 4-1.7(b) (material-limitation conflicts, Model Rule 1.7) and its Comment, which states that a lawyer cannot ask for consent where a disinterested lawyer would conclude the client should not agree. It traced the committee's earlier opinions on simultaneous government and private employment (60-12, 74-37, 75-33, 78-8).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Fla. Rule 4-1.7(b) and Comment (material-limitation conflicts; consentability)

Other opinions cited:

• Fla. Ethics Ops. 60-12, 74-37, 74-37 (Reconsideration), 75-33, 78-8

See also

• FL Bar Ethics Op. 97-2: Attorney as Closing Agent
• FL Bar Ethics Op. 02-3: Representing Driver and Passenger

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-96-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-96-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 96-2
October 15, 1996
Advisory ethics opinions are not binding.
A law firm that represents local law enforcement agencies on civil and administrative
matters is not per se precluded from engaging in criminal defense work in the same county.
Whether such dual representation is ethically permissible depends on the application of the
conflict rules to the facts and circumstances of the particular case.
Note: This opinion was approved by the Board of Governors of the Florida Bar on
September 20, 1996.
RPC: 4-1.7(b); Comment, 4-1.7
Opinions: 60-12, 74-37, 74-37 (Reconsideration), 75-33, 78-8
A member of The Florida Bar has requested an advisory ethics opinion based the
following facts:
For your consideration, an attorney within the firm is general counsel to the
Sheriff of [name omitted] County. As part of this representation, the attorney
advises the Sheriff on civil matters, including, but not limited to civil forfeiture
work under the Florida Contraband Forfeiture Act, and administrative matters.
Another attorney within the firm wishes to pursue a criminal defense practice
within [the same] County. With these facts in mind, please respond to the
following hypothetical situations as to whether or not a conflict of interest would
arise if the firm were to undertake the representation of the individual within [the]
County:
1) “A person is arrested and charged with a DUI or a criminal traffic
infraction by a member of the Florida Highway Patrol?”
2) “A person is charged with committing a criminal offense within [the]
County by the State Attorney’s office and an officer with the [city’s name
omitted] Police Department or Florida Highway Patrol may be called by the State
of Florida as a witness?”
3) “A person has been issued a civil traffic infraction by the [city] Police
Department or by the Florida Highway Patrol?”
4) “A person is arrested and charged with committing a criminal offense
within the city limits of [city’s name omitted] by the [city] Police Department?”
5) “A special investigation is initiated and conducted by the State
Attorney’s office, but members of the [city] Police Department or Florida
Highway Patrol may assist in gathering facts for the investigation?”
Additionally, I would request that once you have responded to the hypotheticals
above, you reconsider the hypotheticals assuming that the attorney who represents
the Sheriff, also on a limited and infrequent basis, represents the [city] Police
Department in only civil forfeiture matters involving the Florida Contraband
Forfeiture Act. Would this additional fact change your original answers to the
hypotheticals above?
In Opinions 74-37, 74-37 (Reconsideration), and 78-8, the Professional Ethics Committee
addressed the propriety of a law firm representing a county sheriff in civil and administrative
matters while engaging in criminal defense work in the same county. Finding that such an
arrangement involved the appearance of impropriety and unwaivable conflicts of interest, the
Committee, in each instance, declined to approve the dual representation. In effect, these
opinions per se prohibit a law firm from ever simultaneously representing a local law
enforcement agency and engaging in criminal defense work.
The inquiring firm here essentially asks us to review the prior opinions in light of the
Committee’s recent action reaffirming the opinions in response to the firm’s inquiry. In so
doing, we find that Opinions 74-37, 74-37 (Reconsideration), and 78-8 are overly broad and,
therefore, we overrule those opinions to the extent that they conflict with the following opinion
of more narrowed scope.
When a law firm’s independent professional judgment on behalf of one client may be
affected by the firm’s relationship to another client, a potential conflict of interest exists and Rule
4-1.7(b) of the Rules of Professional Conduct is relevant. That rule provides:
(b) A lawyer shall not represent a client if the lawyer’s exercise of independent
professional judgment in the representation of that client may be materially
limited by the lawyer’s responsibilities to another client or to a third person or by
the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not adversely
affect the lawyer’s responsibilities to and relationship with the other client; and
(2) Each client consents after consultation.
As indicated above, over the years the Professional Ethics Committee has issued opinions
dealing with simultaneous government and private employment. Early Committee opinions held
that government entities could not properly consent to conflicts of interest arising from such
employment. See Opinion 60-12. In Opinion 75-33, however, the Committee receded from this
position with regard to dual representations involving unrelated matters.
In accordance with Rule 4-1.7(b) and the reasoning of Opinion 75-33, we determine that
the inquiring firm may undertake the dual representations if: the matters in which the firm
intends to represent the law enforcement authorities and private clients are unrelated; the firm
reasonably believes that its independent professional judgment on behalf of the sheriff and police
will not be affected by its responsibility to or relationship with its individual defense clients, and
reasonably believes that its independent professional judgment on behalf of the defense clientele
will not be affected by its responsibility to or relationship with the law enforcement clients; and
all affected clients consent after full disclosure. Applying these general principles to the
scenarios presented by the inquiring law firm, we reach the conclusions discussed below.
First, where the firm’s law enforcement clients are not involved in any way in a matter in
which the firm represents an individual accused of a crime, Rule 4-1.7(b) ordinarily will not be
implicated. No potential conflict would exist and, thus Rule 4-1.7(b) would not be triggered.
Second, where personnel of the client law enforcement agency are in some way involved
in a criminal defense case, the firm may represent a defendant in that case if, in accordance with
Rule 4-1.7(b), the firm reasonably believes its independent professional judgment will not be
affected and the clients (i.e., the law enforcement agency and the criminal defense client) consent
after consultation regarding the implications of the representations. By way of example, perhaps
a sheriff’s department employee participated in an investigation that resulted in an arrest, but
played a relatively minor part in the matter. In such a situation, it would be ethically permissible
for the firm to represent the criminal defendant if the firm satisfies the requirements of Rule 4-
1.7(b).
Finally, where a law enforcement client is involved in the firm’s criminal defense case in
a direct and material way, the firm may not, even with client consent, undertake the criminal
representation. In this regard, the Comment to Rule 4-1.7 is instructive. It states, in relevant
part:
A client may consent to representation notwithstanding a conflict. However, as
indicated . . . in subdivision (b)(1) with respect to material limitations on
representation of a client, when a disinterested lawyer would conclude that the
client should not agree to the representation under the circumstances, the lawyer
involved cannot properly ask for such agreement or provide representation on the
basis of the client’s consent.
For example, an unwaivable conflict of interest could exist if the firm would be put in the
position of attacking sheriff’s department personnel on cross-examination during the trial of a
criminal defense client.
We conclude by noting that the wide variety of factual circumstances that can occur in
this area precludes us from rendering a global opinion. Rather, we strongly believe that each
particular situation, including those presented by the inquiring law firm, must be resolved
individually by applying the principles discussed in this opinion.