The Florida Bar
October 15, 1996
October 15, 1996
A law firm that represents local law enforcement agencies on civil and administrative matters is not per se precluded from engaging in criminal defense work in the same county. Whether such dual representation is ethically permissible depends on the application of the conflict rules to the facts and circumstances of the particular case.
Note: This opinion was approved by the Board of Governors of the Florida Bar.
RPC: 4-1.7(b); Comment, 4-1.7
Opinions: 60-12, 74-37, 74-37 (Reconsideration), 75-33, 78-8
A member of The Florida Bar has requested an advisory ethics opinion based the following facts:
For your consideration, an attorney within the firm is general counsel to the Sheriff of [name omitted] County. As part of this representation, the attorney advises the Sheriff on civil matters, including, but not limited to civil forfeiture work under the Florida Contraband Forfeiture Act, and administrative matters. Another attorney within the firm wishes to pursue a criminal defense practice within [the same] County. With these facts in mind, please respond to the following hypothetical situations as to whether or not a conflict of interest would arise if the firm were to undertake the representation of the individual within [the] County:
1) "A person is arrested and charged with a DUI or a criminal traffic infraction by a member of the Florida Highway Patrol?"
2) "A person is charged with committing a criminal offense within [the] County by the State Attorney's office and an officer with the [city's name omitted] Police Department or Florida Highway Patrol may be called by the State of Florida as a witness?"
3) "A person has been issued a civil traffic infraction by the [city] Police Department or by the Florida Highway Patrol?"
4) "A person is arrested and charged with committing a criminal offense within the city limits of [city's name omitted] by the [city] Police Department?"
5) "A special investigation is initiated and conducted by the State Attorney's office, but members of the [city] Police Department or Florida Highway Patrol may assist in gathering facts for the investigation?"
Additionally, I would request that once you have responded to the hypotheticals above, you reconsider the hypotheticals assuming that the attorney who represents the Sheriff, also on a limited and infrequent basis, represents the [city] Police Department in only civil forfeiture matters involving the Florida Contraband Forfeiture Act. Would this additional fact change your original answers to the hypotheticals above?
In Opinions 74-37, 74-37 (Reconsideration), and 78-8, the Professional Ethics Committee addressed the propriety of a law firm representing a county sheriff in civil and administrative matters while engaging in criminal defense work in the same county. Finding that such an arrangement involved the appearance of impropriety and unwaivable conflicts of interest, the Committee, in each instance, declined to approve the dual representation. In effect, these opinions per se prohibit a law firm from ever simultaneously representing a local law enforcement agency and engaging in criminal defense work.
The inquiring firm here essentially asks us to review the prior opinions in light of the Committee's recent action reaffirming the opinions in response to the firm's inquiry. In so doing, we find that Opinions 74-37, 74-37 (Reconsideration), and 78-8 are overly broad and, therefore, we overrule those opinions to the extent that they conflict with the following opinion of more narrowed scope.
When a law firm's independent professional judgment on behalf of one client may be affected by the firm's relationship to another client, a potential conflict of interest exists and Rule 4-1.7(b) of the Rules of Professional Conduct is relevant. That rule provides:
(b) A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and
(2) Each client consents after consultation.
As indicated above, over the years the Professional Ethics Committee has issued opinions dealing with simultaneous government and private employment. Early Committee opinions held that government entities could not properly consent to conflicts of interest arising from such employment. See Opinion 60-12. In Opinion 75-33, however, the Committee receded from this position with regard to dual representations involving unrelated matters.
In accordance with Rule 4-1.7(b) and the reasoning of Opinion 75-33, we determine that the inquiring firm may undertake the dual representations if: the matters in which the firm intends to represent the law enforcement authorities and private clients are unrelated; the firm reasonably believes that its independent professional judgment on behalf of the sheriff and police will not be affected by its responsibility to or relationship with its individual defense clients, and reasonably believes that its independent professional judgment on behalf of the defense clientele will not be affected by its responsibility to or relationship with the law enforcement clients; and all affected clients consent after full disclosure. Applying these general principles to the scenarios presented by the inquiring law firm, we reach the conclusions discussed below.
First, where the firm's law enforcement clients are not involved in any way in a matter in which the firm represents an individual accused of a crime, Rule 4-1.7(b) ordinarily will not be implicated. No potential conflict would exist and, thus Rule 4-1.7(b) would not be triggered.
Second, where personnel of the client law enforcement agency are in some way involved in a criminal defense case, the firm may represent a defendant in that case if, in accordance with Rule 4-1.7(b), the firm reasonably believes its independent professional judgment will not be affected and the clients (i.e., the law enforcement agency and the criminal defense client) consent after consultation regarding the implications of the representations. By way of example, perhaps a sheriff's department employee participated in an investigation that resulted in an arrest, but played a relatively minor part in the matter. In such a situation, it would be ethically permissible for the firm to represent the criminal defendant if the firm satisfies the requirements of Rule 4-1.7(b).
Finally, where a law enforcement client is involved in the firm's criminal defense case in a direct and material way, the firm may not, even with client consent, undertake the criminal representation. In this regard, the Comment to Rule 4-1.7 is instructive. It states, in relevant part:
A client may consent to representation notwithstanding a conflict. However, as indicated . . . in subdivision (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.
For example, an unwaivable conflict of interest could exist if the firm would be put in the position of attacking sheriff's department personnel on cross-examination during the trial of a criminal defense client.
We conclude by noting that the wide variety of factual circumstances that can occur in this area precludes us from rendering a global opinion. Rather, we strongly believe that each particular situation, including those presented by the inquiring law firm, must be resolved individually by applying the principles discussed in this opinion.