The Florida Bar

Ethics Opinion

Opinion 71-9

May 5, 1971
Advisory ethics opinions are not binding.
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.


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70-11 [since withdrawn] precludes him from all criminal defense work and most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the opinion the rationale of 70-11 [since withdrawn] applies to prosecuting attorneys who regularly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 The minority therefore believes 70-11 [since withdrawn] precludes the result announced by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withdrawn]. It believes 70-11 [since withdrawn] to be a better work product and statement of the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.