The Florida Bar

April 4, 1968

A county attorney whose duties relate only to civil matters may defend a person charged with crime in his county when the county commissioners have no control or supervision over the court, the clerk, the bailiff or police officers.

Canons: 6, Additional Rule 25
Opinions: 59-10, 60-22

Chairman MacDonald stated the opinion of the committee:

We are asked by a member of The Florida Bar who has been concerned about an article entitled “Ethical Considerations for City Attorneys,” appearing in the November 1967 issue of The Florida Bar Journal, whether while serving as a county attorney he may defend a person charged with crime in that county. He advises that his duties relate only to civil matters. In our Opinion 60-22 [since withdrawn] it is stated that “if the Board of County Commissioners has control or supervision of the Court, the Clerk, Bailiff, or Police Officers who constitute the usual witnesses against the defendant, the County Attorney should not represent the defendant.”

We are satisfied that in this instance the County Commissioners have no such control of any effective sort over any of these type persons. Moreover, as we have pointed out in our Opinion 59-10, there is no impropriety in a member of the Bar who is a county commissioner trying a case before a circuit judge whose allotment of space, departmental budget, supplemental salary are controlled by the county commission. Thus, in our judgment the cited language from Opinion 60-22 was necessarily limited to such facts as might have been before the Committee at that time and cannot be construed to generally apply to all county attorneys and more particularly to the one propounding the inquiry in question. Accordingly we conclude that the inquirer may properly represent the clients in question.

The Committee takes note that it has also received general inquiries concerning other portions of the cited article in The Florida Bar Journal, including in particular portions of the article relating to various opinions of the Committee on Professional Ethics of the American Bar Association. We emphasize that despite our great respect for the Committee of the American Bar Association its opinions are in no way binding upon members of The Florida Bar and at most are persuasive. We also take this occasion to emphasize that such opinions of this Committee as may have been cited in the article were necessarily confined, just as was Opinion 60-22, to particular facts then before the Committee. Rather than undertake a general reassessment of various opinions rendered by past committees on particular situations then before the Committee, which reassessment would in all likelihood contravene the policy of the Board of Governors limiting this Committee to rendering advisory opinions to members of The Florida Bar concerning their own proposed conduct, we suggest that interested members of the Bar submit to us any specific questions which they might have in this area. The Committee would then be in position to render such opinion as might seem to be the appropriate one in the light of the circumstances then propounded.

We again emphasize that we are not aware that any opinion of this Committee cited in the subject article was intended by the Committee as then constituted to constitute a general dissertation applicable to all circumstances and events pertaining to the handling of civil and criminal cases for private clients by attorneys who on occasion might represent public bodies.

[Revised: 08-24-2011]