Can a law firm that regularly sues state agencies and officials accept a retainer to represent a state board made up of the Governor and Cabinet?

Plain-English summary

A Florida firm engaged in the general practice of law was approached to represent the State Board of Conservation, which was composed of the Governor and other members of the Cabinet, on a retainer basis. The firm already had litigation pending against Cabinet members in certain representative capacities and against other branches of state government, and it anticipated that it might need to sue state officials, agencies, or boards in the future. The inquiry was whether the firm could properly accept the retainer.

A majority of the committee concluded that the contemplated employment should not be accepted under those circumstances, as it had concluded in its earlier Opinions 60-12 and 65-13. It rested the conclusion in part on the general language of Canons 6, 11, 29, and 37 and on ABA Opinions 49, 50, 104, and 245. The committee acknowledged that no canon directly prohibited the arrangement, provided the full-disclosure requirement of Canon 6 was met, but a majority felt the action could easily be misunderstood by the public and would not be in the best interests of the legal profession. One member dissented, stating there would be no ethical objection if the firm made full disclosure of its position and intentions and reserved, at the time of employment, the right to proceed against state officials and agencies it did not represent.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied the former Canons of Professional Ethics; conflicting-interest representation is now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a firm that regularly sues the State accept a retainer to represent a state board?

A: A majority concluded the firm should not accept the retainer where it was regularly engaged in litigation against state agencies and officials and anticipated continuing to do so.

Q: Did any canon directly prohibit the arrangement?

A: No. The committee said no canon prohibited it directly if the full-disclosure requirement of Canon 6 was met, but a majority found the arrangement could easily be misunderstood by the public and would not be in the best interests of the profession.

Q: Was the committee unanimous?

A: No. One member dissented, finding no ethical objection if the firm fully disclosed its position and intentions and reserved the right to proceed against state officials and agencies it did not represent.

Background and rules framework

The opinion applied the former Canons of Professional Ethics, principally Canon 6 (conflicting interests, permitted only by consent after full disclosure), along with Canons 11, 29, and 37. Conflicting-interest representation is now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). The committee relied on its own Opinions 60-12 and 65-13 and on ABA Opinions 49, 50, 104, and 245.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests; see current Rule 4-1.7]
• Canon 11, Canon 29, Canon 37 [Canons of Professional Ethics]

Other opinions cited:

• FL Bar Op. 60-12; FL Bar Op. 65-13: prior committee opinions on analogous representation of state bodies
• ABA Op. 49, 50, 104, 245: ABA committee opinions on conflicting interests

See also

• FL Bar Ethics Op. 65-72: Dual Public Roles in a Bond Validation
• FL Bar Ethics Op. 65-57: Lawyer Serving a Board His Partner Chairs

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-42/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-42.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-42
June 14, 1965
Advisory ethics opinions are not binding.
A law firm regularly engaged in litigation against state agencies and officials should not accept a retainer to represent a state board composed of the governor and members of the cabinet.
Canons: 6, 11, 29, 37
Opinions: 60-12, 65-13; ABA 49, 50, 104, 245
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states, in substance, that his firm has been approached to represent the State Board of Conservation on a retainer basis. This Board is composed of the Governor and other members of the Cabinet of the State of Florida. His firm is engaged in the general practice of law and presently has litigation pending in the courts of this state against members of the Cabinet in certain representative capacities. He also has other litigation pending against branches of state government, and anticipates that in the future it might be necessary for the firm to bring suit against state officials or administrative agencies or boards. Our opinion is sought regarding the propriety of accepting the employment tendered under these circumstances.
This Committee has been called upon to consider analogous situations. We did so in our Opinions 60-12 and 65-13. It is the opinion of a majority of the Committee, as it was in the opinions mentioned, that the contemplated employment should not be accepted under the circumstances mentioned. This conclusion is reached, in part, pursuant to the general language of Canons 6, 11, 29 and 37 as well as language contained in Opinions 49, 50, 104, and 245 of the Professional Ethics Committee of the American Bar Association. There is no prohibition in the Canons which applies directly to the problem, provided that the full disclosure requirement of Canon 6 is met. A majority of the Committee feels, however, that the contemplated action could easily be misunderstood by the public and would not be in the best interests of the legal profession.
One of the most experienced and respected members of the Committee has responded and dissents from the view above expressed. That member believes there would be no ethical objection to accepting the employment provided a full disclosure of the position and intentions of the firm is made and the right is reserved at the time of employment to proceed against state officials and agencies not represented as such by the firm.