Can a full-time assistant city attorney who also leads a city-employee association present the association's pension-plan changes to city officials?

Plain-English summary

A member was employed full-time as an assistant city attorney, in a civil-service position, and also served as president of an association of city employees formed under Florida Statute 839.221(2) (1963). The association wanted to amend a city pension plan, and as its president he was expected to present the amendment proposals to municipal officers. He asked whether he could ethically do so.

The committee concluded he could not ethically represent the association's interests before the municipal officials, because he owed a professional obligation to the city while also holding a leadership position in the association, making the possibility of conflicting interests imminent and obvious. The committee went further and said it was improper for him even to be a member of the association, which it viewed as a labor union or similar, citing Drinker's treatise and ABA authority for the proposition that a lawyer may not join a labor union (ABA Informal Opinion 267; ABA Opinion 275, which stressed both conflict and the duty to keep employment information confidential). That second holding (disapproval of union membership) was later overruled by the Board of Governors.

Currency note

The Board of Governors of The Florida Bar overruled this opinion's disapproval of union membership as such; the governing Board advisory ethics opinion follows Opinion 77-15 in The Florida Bar's manual. This opinion was also issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 27, 35, and 44 of the Canons of Professional Ethics; conflicts of interest are now governed by Rule 4-1.7 and the conduct of government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). Treat this page as historical context, not current guidance.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: Could the lawyer present the association's pension proposals to the city?

A: No. The committee found an imminent and obvious conflict between his duty to the city as assistant city attorney and his leadership role in the employee association.

Q: What about the opinion's statement that he could not even belong to the association?

A: That part, disapproving union membership as such, was later overruled by the Board of Governors. The committee's conflict holding on presenting the proposals is separate.

Q: What authorities did the committee rely on?

A: Drinker's treatise and ABA authority, including ABA Informal Opinion 267 and ABA Opinion 275, which addressed a company lawyer joining a union and stressed conflict of interest and the duty to keep employment information confidential.

Background and rules framework

The opinion applied former Canons 6, 27, 35, and 44 of the Canons of Professional Ethics, and referenced Florida Statute 839.221(2) (1963), under which the employee association was formed. Conflicts of interest are now governed by Rule 4-1.7, and the special rules for government lawyers by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.11). The committee's core conflict holding rested on the lawyer's dual obligations to the city and to the association.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rules 4-1.7, 4-1.11]
• Canons 27, 35, 44 [advertising; professional independence; withdrawal]

Statutes:

• F.S. 839.221(2) (1963): statute under which the city-employee association was formed

Other opinions cited:

• ABA Opinion 275; ABA Informal Opinion 267: a lawyer-employee joining a labor union

See also

• FL Bar Ethics Op. 65-17: A County Prosecutor in Civil Suits Against the County
• FL Bar Ethics Op. 64-72: A County Prosecutor as Criminal Defense Counsel

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-57/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-57.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-57
September 29, 1964
Advisory ethics opinions are not binding.
It is improper for a lawyer, employed full-time as an assistant city attorney and also serving as president of an association of city employees, to present the association's proposed amendment of the city's pension plan to municipal officials.
Caveat: This opinion's disapproval of union membership as such has been overruled by the Board of Governors. The BOG advisory ethics opinion follows Opinion 77-15 in this manual.
Canons: 6, 27, 35, 44
Opinions: ABA 275, ABA Informal 267
Statute: F.S. 839.221(2)
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states he is employed full-time as an assistant city attorney. His position is classified within the civil service system of the municipality. He also serves as president of an association of city employees formed pursuant to the provisions of Florida Statute 839.221(2) (1963). The association desires to effect amendment of a city pension plan for employees and, as its president, he is expected to present the proposals for amendment to the municipal officers. He inquires if he may ethically do so.
It is the opinion of this Committee that the lawyer cannot ethically represent the interests of the association before the municipal officials. His position is such that he owes a professional obligation to the city as well as occupying a position of leadership in the association. The possibility of conflicting interests is imminent and obvious.
It is further the Committee's opinion that it is improper for him to be a member of the association, which appears to be a labor union or quite similar to one. Legal ethics authorities are unanimous and unequivocal in holding that a lawyer may not join a labor union. Drinker, Legal Ethics, page 160, states:
A lawyer may not belong to a labor union which includes persons not lawyers. By so doing he surrenders his power of independent action.
In Informal Opinion 267, ABA Opinions of Committee on Professional Ethics and Grievances (1957), page 641, the American Bar Association holds: A lawyer may not join a union of the employer's employees.
ABA Opinion 275 deals with the propriety of a lawyer, employed full-time by an insurance company, joining a proposed labor union representing employees of the company. The opinion points especially to the possibility of a conflict of interests between the company and the union. It also stresses the lawyer's obligation to keep in confidence information gained from his employment. Canons 6, 27, 35 and 44 are treated as having possible pertinence.