The Florida Bar

April 1, 1965

A county prosecuting attorney should not represent private clients in civil suits against the county or any board or agency thereof, even though his official county duties relate only to criminal prosecutions.

Caveat: Compare Opinion 67-52.

Canons: 6, 37
Opinions: ABA 10, 16, 186, 262, 278

Chairman Smith stated the opinion of the committee:

In substance, a member of The Florida Bar inquires as to the ethical propriety of an elected county prosecuting attorney representing private clients (1) in condemnation proceedings in which the county and the state are parties-defendant and (2) in personal injury actions against agencies, boards or commissions of the county which are not represented by the prosecuting attorney.

It is the opinion of a majority of the Committee that an elected county prosecutor should not represent private clients in civil litigation against the county, or agencies, boards or commissions thereof even though the prosecutor is charged only with the duty of representing the county in criminal matters and even though the county, and subdivisions thereof, employ other attorneys for representation in civil matters. The majority also extends its view, as expressed, to cases in which the prosecutor seeks to obtain enactment of a special relief bill on behalf of a private client who seeks recovery from the county or a subdivision thereof. The majority bases its view upon the provisions of Canons 6 and 37 and upon certain opinions of the Professional Ethics Committee of the American Bar Association. Reference is made to Opinions 10, 16, 186, 262 and 278. In Opinion 186, the American Bar Association dealt with the “reverse side” of the problem now presented. The question there was whether a county attorney, who represented the county only in civil matters, could properly defend a person charged with crime in the county. The ABA Committee answered in the negative. In so doing, it noted the distinction between civil and criminal matters and indicated that, at first glance, there might be no conflict. The Committee concluded, however, that an attorney representing the public should not accept employment where his duties to a private client and his public duties might conflict either directly or indirectly. It was felt that such representation might tend to destroy public confidence in the lawyer as a public official and might bring reproach upon the profession.

Two members of this Committee believe there would be no impropriety in an elected county prosecutor handling civil matters for a private client in which the county, or a subdivision thereof, is the defendant. These members take special note of the fact that in small counties most attorneys hold some public position and that if these attorneys are disqualified from representing private clients in situations which are not in direct conflict with the public duties of the attorney, then the clients may be required to seek representation outside of the county. Stress is laid upon the practical considerations involved.

[Revised: 08-24-2011]