AGO 97-07

Attorney General of Florida — Opinion
January 24, 1997

RE: PUBLIC DEFENDER — ATTORNEYS — part-time public defender may not engaged in practice of criminal appellate law in private practice. s. 27.51(3), Fla. Stat.

Part-time public defender, private practice

Robert A. Butterworth Attorney General

The Honorable Robert H. Dillenger Public Defender-Elect Sixth Judicial Circuit 6450 First Avenue North St. Petersburg, Florida 33710

Dear Mr. Dillenger:

You ask substantially the following question:

May a part-time assistant public defender who also has a private practice handle criminal appellate cases in his private practice?

In sum:

A part-time assistant public defender who also has a private practice may not engage in the practice of criminal law, including criminal appellate law, in his private practice.

As the newly elected Public Defender for the Sixth Judicial Circuit, you state that you are interested in utilizing part-time assistant public defenders who also have private practices. Since the Florida Bar now offers certification in criminal trial practice and in criminal appellate practice, you ask whether the prohibition contained in section 27.51(3), Florida Statutes, applies only to assistant public defenders who in their private practice may be involved in criminal trial practice or whether it also applies to those handling criminal appeals in state and federal court.

Section 27.51(3), Florida Statutes, provides:

“Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office. Assistant public defenders shall give priority and preference to their duties as assistant public defenders and shall not otherwise engage in the practice of criminal law.” (e.s.)

Based on the all-encompassing nature of the prohibition, this office has determined that section 27.51(3), Florida Statutes, applies to part-time as well as full-time assistant public defenders[1] and that the limitation includes both federal and state practice.[2] The terms of the statute are not limited to the practice of criminal law in certain courts or jurisdictions but rather the statute provides a complete prohibition against such private practice by assistant public defenders.[3]

In addition, the statute makes no distinction between trial practice and appellate practice. Section 27.51(3), Florida Statutes, clearly prohibits an assistance public defender from engaging in the practice of criminal law; such language would appear to be broad enough to encompass both criminal trial practice and criminal appellate practice.

In light of the breadth of the language contained in section 27.51(3), Florida Statutes, prohibiting assistant public defenders from engaging in the practice of criminal law, this office cannot distinguish between criminal trial practice or criminal appellate practice nor add words of limitation to the statute.[4]

Accordingly, I am of the opinion that a part-time assistant public defender who also has a private practice may not engage in the practice of criminal law, including criminal appellate law, in his private practice.

Sincerely,

Robert A. Butterworth Attorney General

RAB/tjw