May a partner or associate of a public body's attorney appear before that public body for a private client?

Plain-English summary

The committee addressed four queries. On the basic question, whether an ethical violation occurs when a partner or associate of a public body's attorney appears before that body for a private client, it relied on ABA authority: a law firm cannot properly accept any employment which one of its partners cannot properly accept (ABA Opinion 72); a firm may not accept employment that previous relations prevent a partner from accepting (Opinion 33); and a firm should not represent interests adverse to those of the employer of any member of the firm (Opinion 192). Under Canon 6, it is unprofessional to represent conflicting interests except by express consent after full disclosure. The committee found it would be highly improper for one partner to be the legal adviser of a public body while another appears before that body to argue a question of law on which the public body would naturally consult his partner, and concluded such representation would be unethical.

On the second query, the committee held that the public agency having several attorneys, each with delineated responsibilities, would not alter its opinion. On the third, whether the answer changes where the relief sought is ministerial or uncontroverted, the committee acknowledged the question was more difficult and that there was some division of thought, but the majority concluded such representation would still be unethical. On the fourth, the committee said it did not believe it proper for a lawyer representing a public agency to ask consent to represent a private conflicting interest, and so considered such representation improper even with full disclosure and consent of both the public body and the private client.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canon 6 of the Canons of Professional Ethics; conflicts of interest, imputation to a lawyer's firm, and the duties of lawyers serving public bodies are now addressed by Rules 4-1.7, 4-1.10, and 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7, 1.10, and 1.11). The committee noted that the opinion should be read with Opinion 75-33. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does it matter that the public body has several attorneys with separate duties?

A: No. The committee held that the public agency having several attorneys, each with delineated responsibilities, would not alter its conclusion that the representation is unethical.

Q: Can disclosure and consent cure the problem?

A: No. The committee did not believe it proper for a lawyer representing a public agency to ask consent to represent a private conflicting interest, so disclosure and consent did not remove the impropriety.

Q: What if the matter is purely ministerial or uncontroverted?

A: The committee found that question more difficult and noted some division of thought, but the majority concluded such representation would still be unethical.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics. Conflicts of interest, imputation of a conflict to a lawyer's firm, and the duties of lawyers serving public bodies are now addressed by Rules 4-1.7, 4-1.10, and 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7, 1.10, and 1.11). The committee relied on ABA authority that a firm cannot accept employment one of its partners could not accept.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.10, 4-1.11]

Other opinions cited:

• ABA Opinions 33, 72, 118, 192
• Florida Opinion 75-33 (cross-reference)

See also

• FL Bar Ethics Op. 62-5: Partner Practicing Before an Appointed Municipal Judge
• FL Bar Ethics Op. 65-2: City Attorney With a Road Board Partner
• FL Bar Ethics Op. 63-24: Part-Time City Attorney's Outside Practice

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-12-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 60-12
October 14, 1960
Advisory ethics opinions are not binding.
It is improper for a partner or associate of an attorney representing a public body to appear before such public body in representation of a private client even though the matter is not the subject of controversy and is outside the scope of the public attorney's responsibilities. Disclosure of facts and consent of the parties involved is insufficient to remove the impropriety when a public body is involved.
Note: See Opinion 75-33
Canon: 6
Opinions: ABA 33, 72, 118, 192
Chairman Holcomb stated the opinion of the committee:
As to Query 1—Does an ethical violation occur when a partner or associate of an attorney representing a public body appears before such public body in representation of a private client?—American Bar Committee Opinion 72 holds that a law firm cannot properly accept any employment which one of its partners cannot properly accept, and an attorney for a drainage district may properly accept employment to attack the validity of state and county assessments only when it will not affect the district adversely and is not inconsistent with his previous activities in its behalf. Canon 6 provides that it is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. A firm may not accept employment which previous relations prevent a partner from accepting (Opinion 33). The prosecuting attorney of one county may not undertake to obtain a pardon or parole for a convict in another county (Opinion 118). A law firm should not represent interests adverse to those of the employer of any member of the firm (Opinion 192). It would be highly improper for one member of a partnership to be the legal adviser of a public body and another member of the partnership to appear before that body to argue a question of law with respect to which it would be only natural that his partner would be consulted by the public body. We therefore believe that the answer to this question would be that such representation would be unethical.
Query 2—Would the answer to the basic question be altered if it were assumed that the attorney for the public body is only one of several attorneys representing this body, each with delineated responsibilities, and his responsibilities do not fall in the area in which his partner or associate is requesting action on behalf of a private client? In answer to this question, we do not feel that the fact that the public agency has several attorneys would alter our opinion in this connection, and we therefore consider that such representation would still be unethical.
Query 3—Would the answer be altered where it is assumed that the action or relief sought from the public body is of a ministerial nature, or is not the subject of any controversy or does not involve opposition or competition from other private citizens? The refinement of this question makes it much more difficult to pass upon whether there is any question of ethics involved at all, and there is some division of thought as to whether or not presentation of routine administrative matters would raise any question of ethics. The majority opinion is that such representation would still be unethical.
Query 4—Would the answer be altered where it is assumed that complete disclosure of dual representation is made to the governing board of the public body and to the private client and full consent is obtained from each? In this connection, we do not believe it proper for a lawyer representing a public agency to ask consent to represent a private conflicting interest, and therefore would consider such representation improper and unethical.