Can a lawyer who opposed a rezoning for one group later seek a similar rezoning for an adjacent landowner over those former clients' objection?

Plain-English summary

Two years earlier, a lawyer represented twenty or thirty objectors who opposed rezoning a 7.5-acre tract from one-acre residential zoning to apartment use. The objection initially succeeded before the Zoning Appeals Board and the County Commissioners, but the District Court of Appeals reversed and directed the rezoning. The lawyer was later retained by the owner of an adjacent tract to apply for the same apartment-use rezoning, and some of his former objector clients argued that this was a conflict of interest under Canon 6.

The lawyer's own view was that he no longer represented the former objectors and that the new matter involved no confidential information from the first representation, so there was no conflict. The committee took a more detached view: the lawyer had first advocated against apartment-use rezoning of a tract near his clients' property and was now asked to seek precisely that same use for the immediately adjacent tract, with no distinction between the parcels except timing. The committee found it difficult to escape the impression that the lawyer would now be advocating one side of similar issues on which he had formerly advocated the opposite side.

The majority concluded this would offend the letter of Canon 6, and those not persuaded that a technical conflict existed joined in concluding that the proposed representation would be inconsistent with the spirit of Canon 6 and offensive to the best interests of the profession.

Currency note

This opinion was issued in 1968, 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 addressed by Rule 4-1.9. Treat this page as historical context, not current guidance.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 lawyer take a matter advocating the opposite position from one he took for former clients?

A: Under this opinion, not on these facts. The committee found that seeking the same apartment-use rezoning for an adjacent tract, after opposing it for former clients, offended Canon 6 even where the lawyer believed no confidences were involved.

Q: Did the absence of confidential information settle the question?

A: No. Even the committee members not persuaded that a technical conflict existed concluded the representation was inconsistent with the spirit of Canon 6 and offensive to the best interests of the profession.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests, focusing on a lawyer taking a position adverse to former clients on substantially the same issue. Duties to former clients are now addressed by Rule 4-1.9 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; former-client duties now in Rule 4-1.9]

See also

• FL Bar Ethics Op. 68-16: Suing a Former Client
• FL Bar Ethics Op. 72-17: Former Partner Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-12-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-12
May 7, 1968
Advisory ethics opinions are not binding.
An attorney who unsuccessfully represented clients opposing rezoning of a tract may not subsequently represent the owner of an adjacent tract who seeks similar rezoning, when that action is again opposed by some of the former clients of the attorney.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises as follows:
Two years ago, I represented a group of objectors in a very active area in ___, Florida, whereby we were opposing the proposed zoning of a 7½ acre tract from one-acre EU zoning to apartment house use. I represented some twenty or thirty people in the area, some close by, and some several hundred feet away. My representation on behalf of the objectors before the Zoning Appeals Board and before the County Commissioners was successful, and both these Boards denied the rezoning. The attorney for the applicant then went to court, the __ District Court of Appeals reversed the two lower Boards and directed that the property be rezoned for apartment house use. This property is across the street from extensive apartment houses and medical clinics and has now become a very hot area.
Now I have been retained by another property owner in the area who owns a tract of land right next to the original 7½ acre tract, and he has employed me to file application with the ______ County Zoning Appeals Board to have the property also zoned for apartment use. Now some of the individuals whom I represented as objectors in the other case two years ago are raising the point that my present attempt to have this other piece of property rezoned is a conflict of interest in violation of Canon No. 6.
We are told that the attorney no longer represents the individuals who objected to the first proposed zoning, and that in his opinion the present proposed representation does not involve any confidential information which might have been received in representing the objectors in the first matter. In sum, it is his opinion that there is no conflict between the present representation and the former representation.
However, a more detached view is that the inquirer initially represented a number of individuals opposing a proposed rezoning of a tract in proximity to their own property so that it might be utilized for apartment house construction. He is now asked by an owner of the property immediately adjacent to the tract which was first in controversy to likewise procure rezoning of this tract for precisely the same type of apartment house use. We are not told of any distinction between the two parcels other than the point in time at which their rezoning is sought. It is difficult to escape the impression that the attorney thus for all practical purposes, and certainly from the standpoint of ostensible appearance in the eyes of his former clients, would now be advocating one side of similar issues upon which he had formerly advocated the opposite side.
The majority of the Committee concludes that this would offend the letter of Canon 6, and those not persuaded that a conflict of interest is technically indicated join the majority in concluding that the proposed representation would be totally inconsistent with the spirit of Canon 6 and offensive to the best interests of the profession.