Can a new county attorney prosecute a condemnation suit for the county when he earlier represented some of the landowners, if their parcels are severed and tried by other counsel?

Plain-English summary

A lawyer recently appointed attorney for his county's Board of County Commissioners had, about two years earlier, been part of a firm retained to represent owners of four parcels in a county condemnation suit; in a later reinstated suit he represented owners of two parcels while his former firm continued to represent the four. His new duties required prosecuting condemnation suits, and this large suit (54 parcels then scheduled for early trial) posed a problem because the county would have difficulty finding other local counsel proficient in the work. He arranged, with the consent of the landowners and his former partner and after conferring with the presiding judge, for the six parcels he had represented to be severed and tried separately by a State Road Department attorney, with himself not involved in their trial. He stated he had no special knowledge from the prior representation that would benefit the county or damage the landowners.

The committee saw no conflict of interest under Canon 6 in the attorney representing the county in the portion of the suit relating to the other parcels. He was not representing his former clients against the county or the county against them, and nothing from his former representation was helpful or harmful to any party in the portion he would try. The committee said the matter involved no more than a question of geographic proximity, found nothing detracting from public confidence in the Bar, and commended the solution, apparently sanctioned by the court, as meeting both the practical realities and the letter and spirit of the canon.

Currency note

This opinion was issued in September 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on conflicting interests. Duties to former clients are now governed by Rule 4-1.9 of the Rules Regulating The Florida Bar, concurrent conflicts by Rule 4-1.7, and conflicts arising from government service by Rule 4-1.11 (Model Rules 1.9, 1.7, and 1.11). 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 Treat this page as historical context, not current guidance.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: Could the county attorney prosecute the condemnation suit despite having represented some of the landowners?

A: Yes, for the portion covering parcels other than the six he had represented. The committee found no Canon 6 conflict because his former clients' parcels were severed and tried by other counsel.

Q: What conditions made the arrangement acceptable?

A: The landowners, his former partner, and the county commission consented; the presiding judge was consulted and apparently sanctioned the severance; and he had no special knowledge from the prior representation that would benefit the county or harm the landowners.

Q: Was he representing former clients against the county?

A: No. The committee stressed he was neither representing his former clients against the county nor the county against them, and described the issue as no more than geographic proximity.

Background and rules framework

The opinion applied the former Canon 6, which addressed representing conflicting interests. Today the questions divide among Rule 4-1.9 of the Rules Regulating The Florida Bar (former clients), Rule 4-1.7 (concurrent conflicts), and Rule 4-1.11 (former and current government officers and employees); the Model Rule analogues are Rules 1.9, 1.7, and 1.11. The committee's analysis turned on the severance of the former clients' parcels and the absence of any confidential advantage.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.9, 4-1.7, and 4-1.11]

See also

• FL Bar Ethics Op. 66-62: Prosecutor in Later Civil Suit
• FL Bar Ethics Op. 67-21: Former Prosecutor Conflict
• FL Bar Ethics Op. 66-77: Conflict in a Multi-Car Crash

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-53/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-53.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-53
September 1, 1966
Advisory ethics opinions are not binding.
A newly appointed county attorney may represent the county in trial proceedings in a condemnation suit in which he earlier represented owners of some of the parcels when: the owners of such parcels have procured other counsel, the parcels owned by them have been severed from the portion of the suit to be handled by the county attorney, other counsel would represent the county in the severed portion, the presiding judge has consented to the arrangement, the county attorney in his earlier representation acquired no special knowledge that would benefit the county or damage the land owners, and the clients and the board of county commissioners consent.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises that he has recently been appointed attorney for the Board of County Commissioners of his county. Approximately two years ago a law firm of which he was then a partner was retained to represent owners of four parcels of land in a condemnation suit brought by the county. The suit was dismissed and later reinstated against the same parcels. In the second suit the attorney was retained to represent owners of two parcels, and his former firm continued to represent the owners of the four parcels previously mentioned.
His duties as county attorney require prosecution of condemnation suits. This suit in question is large (54 parcels being presently scheduled for early trial). The size of the county is such that the county would encounter difficulty in retaining other local counsel proficient in this type litigation. There is available, as hereafter mentioned, occasional and limited assistance from the State Road Department.
In this context this attorney states:
I have obtained other representation for the landowners of the parcels which I have represented in the current suit and with their consent, the consent of my former partner and after conferring with the presiding judge, have arranged for these six parcels to be tried separately by an attorney for the State Road Department. I will not be involved in the trial of these parcels in any way.
I do not have any special knowledge as a result of representing landowners in this suit which would benefit the county or damage the landowners of other parcels.
In these circumstances we see no conflict of interests as defined in Canon 6 involved in the attorney representing the county in the trial of the portion of the suit relating to parcels other than six which are the subject of the severance. He is not engaged in representing his former clients against the county, nor in representing the county against them. There is nothing stemming from his former representation helpful or harmful to any party in the portion of the suit to be tried by him. There is nothing more than a question of geographic proximity involved. Ethical proscriptions must, of course, be grounded in the necessity for the maintenance of public confidence in the affairs of the Bar and its members, particularly those charged with representing an inarticulate public. We find nothing here which in any way detracts from such confidence. Indeed the solution, apparently sanctioned by the Court, is to be commended as one meeting not only the pragmatic realities but also the letter and spirit of the Canon.