The Florida Bar

June 28, 1971

In the event of a bona fide emergency under the “speedy trial” rule, attorneys who occasionally defend criminal cases in the same court may be appointed special county prosecutors.

Opinions: 70-11, 70-38

Chairman Massey stated the opinion of the committee:

The inquiring attorney is a county solicitor whose county has followed a practice of appointing young attorneys as special assistant county solicitors for part-time duty without compensation in a court of record. These men do not normally have extensive criminal practice, although they and their partners and associates from time to time handle criminal defense matters in the same court of record. We are asked if such a special solicitor, if limited to handling arraignments, might also maintain a defense practice within the court and further if this individual might also handle misdemeanor trials as a special solicitor. The inquirer advises he is attempting to cope with the time requirements for speedy trials as required by the Florida Supreme Court's rules.

A majority of the Committee would approve ethically the use of these attorneys for short periods of time when by reason of bona fide emergencies under the “speedy trial” rule such service at arraignment or trial would be required by the prosecuting office involved, even though such attorneys or their partners or associates are performing defense work in the same court. The special solicitors should, however, scrupulously avoid conflicts between individual cases.

A minority find that to be consistent with Florida Opinions 70-11 [since withdrawn] and 70-38 and the prior position of the Committee, no determination should be made by this Committee as to the application or existence of a local hardship exception to the general rule as it would control the functions of county solicitors. The minority believe the inquirer should be referred to his local court judge.

Opinion 70-11 [since withdrawn] does not allow any exception for the person serving as “assistant” or “special” county solicitor and the majority opinion herein partially overrules 70-11 [since withdrawn] to the extent that where an emergency would exist, the prosecuting authorities and the courts may find it necessary and appropriate to waive the general rule without those special solicitors being in a position of ethically violating the CPR.

[Revised: 08-24-2011]