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The Florida Bar
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OPINION 76-43
(May 25, 1977)

An attorney who is a reserve police officer and also functions as "legal officer" for the reserve policemen of a community may not engage in criminal defense work in the court to which reserve police officers make arrest citations returnable nor in other courts in the same geographical area.

Note: This opinion is partially overruled by opinion 78-7.

Opinions: 74­37, 74­37 (Reconsideration)

Vice Chairman Lehan stated the opinion of the committee:

An attorney is a reserve police officer and also functions as "legal officer" for the reserve police in a community, rendering legal opinions for the reserve police. Reserve police officers, while performing their official duties, perform all law enforcement functions of full­time police officers, including the making of court appearances.

The attorney asks whether he may engage in criminal defense work (a) in the court to which police officers, including reserve police officers, make arrest citations returnable, and (b) in other courts in the same geographical area.

The Committee answers both questions in the negative.

In Opinion 74­37 this Committee felt that a law firm may not represent the local sheriff in civil matters and at the same time engage in criminal defense work due to conflict of interest and appearance of impropriety.

Likewise, under the circumstances of the present inquiry both the appearance of impropriety and conflict of interest could exist. More specifically, as to question (a), the potential conflict exists in that, as criminal defense attorney, the attorney could be called upon to attack the credibility of the police officers whom he not only represents but with whom he is officially associated. Also, the appearance of impropriety may result from the possibility that the attorney could, through his representation of the reserve police, and in his capacity as a police officer, gain information or access to information which would not otherwise be available to him.

As to (b), even though the attorney, while acting as a criminal defense attorney in courts in which such police officers apparently do not appear as witnesses, apparently would not be called upon to attack the credibility of those officers, the appearance of impropriety would seem to exist due to cooperation and exchange of information between various law enforcement agencies, commonly known, or thought, to exist to varying degrees.

See also our Opinion 74­37 where the Committee felt that even when an attorney who represents the sheriff in civil matters does not, in fact, have access to information in the sheriff's office which might be used in criminal cases (the sheriff's office being divided into separate departments, civil and criminal), the attorney may not also engage in criminal defense work due to the appearance of impropriety.

One member of the Committee is of the opinion that if the inquirer is on call but in fact rarely called as a reserve officer, he is not disqualified in cases other than those in which the municipality he serves is the prosecuting entity.



[Revised: 08-24-2011]