The Florida Bar
April 27, 1977
A former Assistant State Attorney who regularly represents criminal defendants in his private practice may not serve as prosecutor in criminal cases unrelated to his private practice.

Opinions: 70-11, 71-9, 71-16, 72-48, 74-37, 76-3

Chairman Sullivan stated the opinion of the committee:

A former assistant state attorney is now in private practice and regularly represents defendants in criminal cases in the courts in the judicial circuit in which his office is located. The state attorney in that judicial circuit has asked him whether he would agree to accept appointment to prosecute criminal cases in that circuit on a case-by-case and what appears to be an infrequent basis. He asks if he may properly accept such appointments and at the same time continue with his criminal defense practice. A majority of the Committee is of the opinion that he may not.

In prior opinions, the Committee has dealt with a number of inquiries about prosecuting and defending criminal cases at the same time. Opinion 70-11 [since withdrawn] set out guidelines for prosecutors and municipal judges serving in different capacities in jurisdictions other than the ones in which they served as prosecutor or judge. Subsection (f) of that opinion stated that state attorneys or assistants should not serve as criminal defense counsel in any county. Subsections (b) and (d) made provision for certain hardship exceptions.

Opinions 71-16 and 72-48, dealing with hardship exceptions not present here, allowed limited dual representation.

In Opinion 71-9, the Committee majority approved a criminal defense lawyer's accepting appointment as special counsel to a county grand jury as an assistant state attorney to handle specific matters and, at the same time, continuing with a criminal practice in all courts other than the court in which he was serving as special counsel. In that opinion, a majority of the Committee limited the rationale of Opinion 70-11 [since withdrawn] to prosecuting attorneys who occupied that position regularly, whether full-time or part-time.

In Opinions 74-37 and 76-3 (published February 3, 1977), the Committee expressed concern about the appearance of impropriety that can result when a lawyer or law firm with a criminal defense practice has a continuing professional relationship with law enforcement authorities. It could take the form of the lawyer having to attack the credibility in a criminal defense of witnesses whose credibility the same lawyer is vouching for in other cases. It could take the form of having or appearing to have access to information as a special prosecutor he could use in criminal defense cases. It could take the form of arguing the validity of statutes or arguing interpretations of them that he would attack in defending other

Those concerns continue. Because of them, a majority of the Committee is of the opinion that such dual representation is improper and would adhere to Opinion 70-11 [since withdrawn].

A minority of the Committee is of the opinion that the attorney may properly accept such assignments provided they are on a sporadic or isolated basis and not part of a continuing relationship in time or subject between those cases and the criminal cases in which he is defending.

[Revised: 08-24-2011]