STATE OF FLORIDA, PLAINTIFF,
v.
RICHARD HENRY BRYAN, DEFENDANT
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The Florida Court of Appeals addresses whether a state attorney who formerly served as a public defender can prosecute a defendant he previously represented on an unrelated charge years earlier. The court holds that prior representation alone does not disqualify the prosecutor unless confidential information from the prior attorney-client relationship would be useable against the defendant in the new matter.
The court answers the certified question in the negative. Mere prior representation on an unrelated charge does not disqualify a state attorney from prosecution. However, a state attorney would be disqualified if he had acquired confidential information from the prior attorney-client relationship that would be useable against the defendant in the new matter. General knowledge of the defendant's traits, characteristics, and personal information is insufficient to disqualify the prosecutor.
“The mere fact that the State Attorney was formerly the Public Defender when defendant was tried for a prior crime and represented by the Public Defender's office does not, without more, disqualify him from prosecuting defendant for a different, subsequent crime.”
Establishes the holding that prior representation alone is insufficient for disqualification.
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Join FLexlaw to unlock all legal intelligenceThe defendant was previously represented by the Public Defender's office on an unrelated charge approximately four years before the crime currently at…
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The following certified question comes to us from the Thirteenth Judicial Circuit, Judge James A. Lenfestey:
“Should a state attorney be disqualified by the trial court on motion of defendant from prosecuting said defendant for the reason that the state attorney was previously the public defender and his office represented the defendant on an unrelated charge approximately four years prior to the occurrence of the crime for which the defendant is presently charged ?”
We are obliged to answer the question as abstractly phrased in the negative. The mere fact that the State Attorney was formerly the Public Defender when defendant was tried for a prior crime and represented by the Public Defender’s office does not, without more, disqualify him from prosecuting defendant for a different, subsequent crime.
We hasten to add, however, that a public defender owes his clients the same high standard of fidelity imposed by the Canons of Ethics on other members of the Bar. His duties in this respect are twofold.1 First, he may not act against his client in any case or matter in which he formerly represented him.2 Second, he may at no time use against a former client any *223confidential information acquired by virtue of the previous attorney-client relationship.3
Applying these principles here, the State Attorney can only be disqualified 4 if it were shown that as Public Defender he had actually gained confidential information from a prior attorney-client relationship with the defendant, which information would be useable in the new matter to defendant’s prejudice. Such confidential information, however, must go beyond general information about defendant’s personal characteristics tactically useable in any subsequent trial against him. Thus, contrary to defendant’s assertions, general knowledge of defendant’s “traits, foibles, and the area of his strength, friendships and the like” will not disqualify the prosecutor.5
LILES, A. C. J., and PIERCE and Mc-NULTY, JJ„ concur.
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Citator
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State v. Fitzpatrick, 464 So. 2d 1185 (Fla. 1985)…that as Public Defender he had actually gained confidential information from a prior attorney-client relationship with the defendant, which information would be usable in the new matter to defendant’s prejudice. Id. at 763 (quoting State v. Bryan, 227 So. 2d 221, 223 (Fla. 2d DCA 1969)). The Court continued: The twofold prohibition enunciated in Bryan — that a former defender turned prosecutor can neither act directly against his former client in a related matter, nor provide information or assistance for…
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Thompson v. State, 246 So. 2d 760 (Fla. 1971)…tual wrongdoing within the State Attorney’s office, but rather, he was concerned that the situation was per se violative of due process. As precedent, reliance was placed upon Young v. State, 177 So. 2d 345 (2nd D.C.A. Fla.1965), and State v. Bryan, 227 So. 2d 221 (Fla.App.1969). The State Attorney stated at the hearing that there had been no communication between Mr. Storey and the State Attorney or his Assistant regarding the prosecutions of appellant and Charles Larry. To this, Mr. Storey added the followi…
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Alfred v. Kohler, 248 So. 2d 491 (Fla. 2d DCA 1971)…PER CURIAM. Affirmed. See State v. Bryan (Fla.App.1969), 227 So. 2d 221. LILES, A. C. J., and MANN and McNULTY, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State, 177 So. 2d 345 (Fla. 2d DCA 1965)
- Prichec v. Tecon Corp., 139 So. 2d 712 (Fla. 3d DCA 1962)