The Florida Bar

June 25, 1959

Neither a county prosecutor whose duties by law include giving legal advice to the county commission in addition to prosecuting criminals nor a county attorney may represent a property owner in condemnation proceedings in which the county has a financial interest. It is improper for a county prosecutor to accept private employment in a civil action arising out of an automobile accident if the private employment might influence his judgment in any phase of the criminal matter or cause the opposing litigant reasonably to believe that a public office is being used to promote the interests of a private litigant.

Caveat: The second portion of this opinion may be further limited by Opinion 59-25.

Canons: 6, 29
Opinion: ABA 34

Chairman Holcomb stated the opinion of the committee:

The Committee on Ethics has received a request for opinions on the following:

(a) Whether it would be proper for a County Attorney of a relatively small Florida County to represent owners in condemnation suits, it appearing that County funds would be used in payment for the property condemned. It also appears that by Special Act of the Florida Legislature, it is the duty of the County Attorney to advise the Board of County Commissioners upon all legal matters and generally to attend to all legal matters coming under its jurisdiction. It also appears that partial payment for the condemned property would be made from the County's portion of the gasoline tax upon authorization by resolution of the Board of County Commissioners.

(b) Whether in automobile accident cases the County Prosecutor would be disqualified from representing a plaintiff where the defendant was charged with a criminal violation in connection with the operation of his automobile and when no criminal charge was made against the plaintiff
by the investigating officer.

Canon 6 of the Canons of Professional Ethics provides that it is unprofessional to represent conflicting interests except by express consent of all concerned after a full disclosure of the facts. Opinion 34 of the American Bar Committee on Professional Ethics, rendered March 3, 1931, holds that the consent clause in the canon could not operate in the case of a public officer. Canon 29, relating to upholding the honor of the profession, holds that the lawyers should at all times strive to uphold the honor and maintain the dignity of the profession and to improve not only the law but the administration of justice. It is the opinion of the Committee that a County Prosecutor who is called upon to handle only criminal matters could be permitted to appear and represent private property owners in condemnation suits, but that an attorney occupying the position of a legal advisor to the Board of County Commissioners should not accept employment by a landowner whose land is being or might be acquired by the county for a road right-of-way. If a prosecuting officer is employed by the Board of County Commissioners who may summarily or at the end of an existing term terminate the employment, this would place the attorney in a position in which he might be subjected to pressure that would cause him to advise a defendant in a condemnation suit to accept a settlement in the hope that this action would assure his continued employment as prosecuting officer. The existence of this possibility, remote as it may be, should disqualify the prosecuting officer employed by the Board of County Commissioners from accepting such private employment.

On the question of the propriety of a prosecuting officer representing parties to a damage suit arising out of an accident which might result in a prosecution in which he would represent the state, the prosecuting officer should not accept employment: (a) while he is investigating the accident to determine whether a criminal charge should be filed; (b) while a criminal case is pending; (c) before investigation by other officers which might result in a prosecution is concluded; (d) where the circumstances are such that a person against whom a claim represented by the prosecutor a prosecution might result; and (e) when the only contact with the client arose out of the investigation of the accident. And conversely, there would appear to be no reason by a prosecuting officer would be disqualified when: (a) an investigation has been completed and it has been determined that no prosecution will be instituted; (b) only simple negligence is involved and prosecution has been undertaken in another court having concurrent jurisdiction; (c) the prosecution has been finally terminated.

It is not in and of itself improper for a prosecuting officer to accept private employment in a civil action arising out of an act of negligence in the operation of a motor vehicle even if he is charged with the duty of prosecuting cases of reckless driving. It is improper for a prosecutor to accept such employment if under the circumstances of the particular case the private employment might reasonably be calculated to influence his judgment in any phase of the criminal prosecution, or cause the opposing litigant reasonable grounds to believe the powers of the prosecutor would be used to promote the interests of the private client of the prosecuting officer.

[Revised: 08-24-2011]