FLORIDA BAR ETHICS OPINION
December 15, 1964
Advisory ethics opinions are not binding.
(1) A prosecuting attorney before a county judge’s court may not act as defense counsel in
criminal cases in the circuit court of the same county. (2) An attorney who is employed to
defend a criminal case in circuit court before his election as prosecutor, may not continue such
employment after taking office. (3) Such a prosecuting attorney may not accept employment to
defend criminal cases in the courts of other counties or in federal court.
ABA 16, 30, 55, 118, 186, 242, 261, 262
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses for our response the following questions:
1. May the Prosecuting Attorney for a county judge’s court act as defense
counsel in criminal cases in the circuit court of the same county?
2. May an attorney who was employed to defend a criminal case in the circuit
court of a county before his election as county prosecutor for the county judge’s
court of the same county continue the employment after taking office?
3. May the prosecuting attorney for a county judge’s court accept
employment to defend criminal cases in the circuit courts of other counties or in
the United States District Court?
Three members of the Committee have answered each of the questions posed in the
negative. These members rely upon a sizeable number of opinions rendered by the Professional
Ethics Committee of the American Bar Association. ABA Opinions numbered 16, 30, 55, 118,
186, 242, 261, and 262 are pertinent to one or more aspects of the problems presented. Opinions
30 and 118 contain language which is deemed controlling. It is stated in Opinion 118 that “[a]
county attorney is attorney for the state in the general matter of the enforcement of the criminal
law, although the sphere of his activity is limited to a particular county.” In Opinion 30, it is said
that if a public prosecutor is allowed to defend persons accused of crime in other jurisdictions,
such action (1) would tend to jeopardize cooperation between law enforcement officers of
different jurisdictions, (2) would invite public misunderstanding and distrust, (3) would
undermine public confidence and tend to subject the prosecutor to suspicion, and (4) would tend
to lower the dignity and honor of the profession.
One member of the Committee who responded answers the first question negatively, but
answers all others in the affirmative. Another member answers all questions in the affirmative.
These members based their reasoning primarily upon the possible impracticalities which might
arise in large, sparsely populated judicial circuits.
All Committee members would recognize that the response to Question 2 would depend
to some extent upon the time element. The newly elected prosecutor could well have a duty to
afford a defense if there was insufficient time to withdraw and a continuance could not be