The Florida Bar

Ethics Opinion

Opinion 59-2

June 25, 1959
Advisory ethics opinions are not binding.
Neither a county prosecutor whose duties by law include giving legal advice to the county
commission in addition to prosecuting criminals nor a county attorney may represent a property
owner in condemnation proceedings in which the county has a financial interest. It is improper
for a county prosecutor to accept private employment in a civil action arising out of an
automobile accident if the private employment might influence his judgment in any phase of the
criminal matter or cause the opposing litigant reasonably to believe that a public office is being
used to promote the interests of a private litigant.

The second portion of this opinion may be further limited by Opinion 59-25.


6, 29
ABA 34

Chairman Holcomb stated the opinion of the committee:
The Committee on Ethics has received a request for opinions on the following:
(a) Whether it would be proper for a County Attorney of a relatively small
Florida County to represent owners in condemnation suits, it appearing that
County funds would be used in payment for the property condemned. It also
appears that by Special Act of the Florida Legislature, it is the duty of the County
Attorney to advise the Board of County Commissioners upon all legal matters and
generally to attend to all legal matters coming under its jurisdiction. It also
appears that partial payment for the condemned property would be made from the
County’s portion of the gasoline tax upon authorization by resolution of the Board
of County Commissioners.
(b) Whether in automobile accident cases the County Prosecutor would be
disqualified from representing a plaintiff where the defendant was charged with a
criminal violation in connection with the operation of his automobile and when no
criminal charge was made against the plaintiff by the investigating officer.
Canon 6 of the Canons of Professional Ethics provides that it is unprofessional to
represent conflicting interests except by express consent of all concerned after a full disclosure of
the facts. Opinion 34 of the American Bar Committee on Professional Ethics, rendered March 3,
1931, holds that the consent clause in the canon could not operate in the case of a public officer.
Canon 29, relating to upholding the honor of the profession, holds that the lawyers should at all
times strive to uphold the honor and maintain the dignity of the profession and to improve not
only the law but the administration of justice. It is the opinion of the Committee that a County
Prosecutor who is called upon to handle only criminal matters could be permitted to appear and
represent private property owners in condemnation suits, but that an attorney occupying the

position of a legal advisor to the Board of County Commissioners should not accept employment
by a landowner whose land is being or might be acquired by the county for a road right-of-way.
If a prosecuting officer is employed by the Board of County Commissioners who may summarily
or at the end of an existing term terminate the employment, this would place the attorney in a
position in which he might be subjected to pressure that would cause him to advise a defendant
in a condemnation suit to accept a settlement in the hope that this action would assure his
continued employment as prosecuting officer. The existence of this possibility, remote as it may
be, should disqualify the prosecuting officer employed by the Board of County Commissioners
from accepting such private employment.
On the question of the propriety of a prosecuting officer representing parties to a damage
suit arising out of an accident which might result in a prosecution in which he would represent
the state, the prosecuting officer should not accept employment: (a) while he is investigating the
accident to determine whether a criminal charge should be filed; (b) while a criminal case is
pending; (c) before investigation by other officers which might result in a prosecution is
concluded; (d) where the circumstances are such that a person against whom a claim represented
by the prosecutor a prosecution might result; and (e) when the only contact with the client arose
out of the investigation of the accident. And conversely, there would appear to be no reason by a
prosecuting officer would be disqualified when: (a) an investigation has been completed and it
has been determined that no prosecution will be instituted; (b) only simple negligence is involved
and prosecution has been undertaken in another court having concurrent jurisdiction; (c) the
prosecution has been finally terminated.
It is not in and of itself improper for a prosecuting officer to accept private employment
in a civil action arising out of an act of negligence in the operation of a motor vehicle even if he
is charged with the duty of prosecuting cases of reckless driving. It is improper for a prosecutor
to accept such employment if under the circumstances of the particular case the private
employment might reasonably be calculated to influence his judgment in any phase of the
criminal prosecution, or cause the opposing litigant reasonable grounds to believe the powers of
the prosecutor would be used to promote the interests of the private client of the prosecuting