The Florida Bar

May 5, 1971

An assistant state attorney who serves in a limited capacity on special appointment may defend criminal cases in all courts of the state other than the one he is serving as prosecutor.

Opinion: 70-11

Chairman Massey stated the opinion of the committee:

A member of The Florida Bar was chosen by a county grand jury to serve as special counsel and in such limited capacity involving specific charges is appointed an assistant state attorney. The attorney normally handles criminal defense work and although he is accepting no cases to defend in the court in which he is prosecuting charges as a result of the special appointment, he inquires whether Florida Opinion 70-11 [since withdrawn] precludes him from all criminal defense work and most particularly in federal courts.

A majority of five of the Committee finds that the inquirer may defend criminal cases, not only in federal courts, but also in courts, state, county and local, other than the court in which he is serving as assistant state attorney under the circumstances described. Essentially, the majority is of the opinion the rationale of 70-11 [since withdrawn] applies to prosecuting attorneys who regularly occupy such position even though on a part-time basis.

One member of the majority feels the inquirer should not be limited in the particular court in which he is serving except as to any person indicted by the grand jury which employed him in his special capacity or as to a case prosecuted which was in any way related to the subject matter of his employment. The tenor of this position is that if it is unethical to do at least that which is proposed by the inquirer, it is equally arguable it is unethical for the general counsel of one bank to bring suit against another bank, or for an attorney representing a liability insurance carrier to represent an injured person suing another when the latter has liability insurance, or other similar civil litigation situations ad infinitum.

A dissenting minority cannot find any clear or logical distinction between a regular, but part-time, assistant state attorney and a special assistant state attorney used or retained for a specific matter. The minority therefore believes 70-11 [since withdrawn] precludes the result announced by the majority.

The Professional Ethics Committee spent many man hours in developing 70-11 [since withdrawn]. It believes 70-11 [since withdrawn] to be a better work product and statement of the ethical considerations than previous opinions on the subject. There are those on the Committee who conclude 70-11 [since withdrawn] is liberal and goes too far, while others find it conservative and needing substantial relaxation. This subject may well be broader than that which is contained in the canons, ethical considerations and disciplinary rules of the CPR and, thus, it should be revisited from time to time since the issue of “working both sides of the street” transcends the criminal, civil, administrative, and other facets of our profession.

[Revised: 08-24-2011]