Can a lawyer who sued for a tax assessor to settle ownership then represent one of the rival claimants in that suit?

Plain-English summary

A municipality and a large landowning corporation each claimed title to about a mile and a half of public beach. The tax assessor, asked by each side to list the property in its name, instead listed it in both names and filed a declaratory decree action seeking a circuit court ruling on ownership so the tax rolls could be corrected. The inquiring lawyer had represented the tax assessor, advised him to list both claimants and to file the action, and had examined the documentary title proof submitted by both claimants without being able to reach a conclusive determination of ownership. He asked whether he could now represent the municipality in the declaratory suit.

The committee concluded that Canon 6 and Canon 36 precluded his representing the municipality in the declaratory decree suit, given that he had previously represented the tax assessor in that matter and had reviewed the relevant title information while serving as counsel for the assessor.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. (The opinion carries a 69-series number under the bar's numbering, but its printed date is March 28, 1970.) It applied the former Canon 6 on conflicting interests and Canon 36 on lawyers who had acted in a public or quasi-public capacity. Duties to former clients are now addressed by Rule 4-1.9, and the special restrictions on former government lawyers by Rule 4-1.11. Treat this page as historical context, not current guidance.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: Can a lawyer who acted for a neutral public officer later represent one side of the dispute?

A: Under this opinion, no, on these facts. Having represented the tax assessor in filing the declaratory action and reviewed both claimants' title proof, the lawyer could not then represent one of the claimants in the same suit under Canons 6 and 36.

Q: Why did reviewing the title information matter?

A: The committee tied its conclusion to the lawyer's prior role as counsel for the assessor and his examination of the title information relevant to the disputed land during that employment.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests and Canon 36, which addressed lawyers who had served in a public or quasi-public role. A lawyer's duties to a former client are now addressed by Rule 4-1.9 of the Rules Regulating The Florida Bar, and the special conflict rules for former and current government lawyers by Rule 4-1.11. The Model Rule analogues are Rules 1.9 and 1.11.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Code of Professional Responsibility; former-client duties now in Rule 4-1.9]
• Canon 36 [former public/quasi-public service; now reflected in Rule 4-1.11]

See also

• FL Bar Ethics Op. 69-22: County Attorney Conflict
• FL Bar Ethics Op. 69-37: Claim Against a Former Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-7-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 69-7
March 28, 1970
Advisory ethics opinions are not binding.
A lawyer may not represent one of the defendants in a declaratory judgment proceeding instituted by him on behalf of a tax assessor to establish which defendant should be listed on the tax roll as owner of certain property.
Canons: 6 and 36
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises as follows:
A municipality and a large landowning corporation both claim title to one and one-half miles of public beach in the south part of this county. The ownership of the property was, and still is, disputed. The Tax Assessor was asked by each claimant to list the property in its name and did neither, but listed it in the names of both owners and filed a declaratory decree action seeking a ruling from the Circuit Court as to which party owned the land so that it might be correctly listed on county tax rolls.
I was the attorney for the Tax Assessor who advised him to list the property in the name of both claimants and to file a declaratory decree action seeking judicial determination of ownership. At the time the claims of ownership were presented, both the municipality and the land developer corporation submitted documentary proof of their claims of title, which were examined by me and upon which I could make no conclusive determination of land ownership.
I have been asked again whether I could represent the municipality in the declaratory decree suit to establish its claim for ownership of the land involved.
It is the opinion of the Committee that the provisions of Canon 6 and Canon 36 preclude his representation of a municipality in a declaratory decree suit wherein he had previously represented the tax assessor and had reviewed the title information relevant to the lands in question during the time of his employment as counsel for the tax assessor.