The Florida Bar

(February 1, 1995)

An assistant state attorney may advise crime victims of the existence of the civil restitution lien remedy provided by the 1994 Act. The attorney, however, must inform victims that the attorney represents only the state and should advise victims to seek independent counsel regarding their rights under the law.

Statutes: Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994 [F.S. Ch. 960]

An Assistant State Attorney requests an opinion concerning the "Florida Civil Restitution Lien and Crime Victims' Remedy Act of 1994." The attorney states that:

[T]he Act mandates that when a defendant is convicted of a crime, the Court, upon motion of the State or the victim(s), must enter a civil restitution lien order in favor of the victim(s). ..We anticipate that there will be cases in which a defendant will be willing to plead guilty or nolo contendere only if the State and the victim(s) waive their right to seek a civil restitution lien under the Act. We normally fully inform all victim(s) about defense plea offers and the consequences of the plea, and are often asked by the victim(s) for our opinion as to the merits of the plea offer. However, we believe that a full discussion with the victim(s) about the consequences of a waiver of his/her rights under the Act raises ethical concerns, which are threefold:

(1) We would be advising the victim(s) on a civil matter, (i.e., the recording and executing of a civil lien), which we as prosecutors, with no training or experience in civil law, are not qualified to do.

(2) Our interest in many cases will be adverse to the victim(s), since a plea, even with a waiver of a civil restitution lien order, will in many cases be in the interest of all the people of the State of Florida, who we represent, but not in the interest of the actual victim(s).

(3) We may be subjecting ourselves to a lawsuit, since we would be giving advice on a civil matter, which is not within the scope of our prosecutorial function, and thus arguably not protected by prosecutorial immunity.

The inquirer asks if it is unethical for an Assistant State Attorney to advise victim(s) whether or not to move for a civil restitution lien order under the Act. The Committee is of the opinion that an Assistant State Attorney may properly advise a victim of the existence of the remedy provided by the Act. Nevertheless, the attorney must be careful to advise the victim that the attorney represents the state only and that the victim is not the attorney's client. Otherwise, the attorney may inadvertently create an attorney-client relationship with the victim and trigger all of the attendant duties, such as competence and loyalty, along with it. In order to inform the victims concerning their rights, while avoiding the problems of initiating an attorney-client relationship, the Committee recommends that the attorney's office prepare a pamphlet such as the brochure used in Dade County and advise the victim to seek independent counsel concerning the matter.

[Revised: 08-24-2011]