Can a lawyer who is also a city councilman represent a client in a civil case investigated by that city's police officer?

Plain-English summary

An attorney who was also a city councilman asked whether he could represent an injured party in a civil matter where the police officer who investigated the accident was an officer of the same municipality. The committee said that, as a normal rule, there was nothing improper in the representation despite the policeman being from the same city. Impropriety could arise in some instances, such as if the lawyer were required to impeach the officer's testimony, or where peculiar circumstances might make the officer feel pressured to color his testimony in the lawyer's favor. Ordinarily, though, a policeman is called to establish measurements, vehicle occupancy, and other scene facts that cannot be in serious dispute, so no impropriety exists. The committee said the inquirer had to evaluate whether he would assault the officer's testimony or place him in an embarrassing position because of the lawyer's position with the city, citing EC 5-21 and Florida Opinion 71-12.

The lawyer also asked whether he could represent a prosecuting witness or a defendant in a traffic matter in a municipality other than the one where he was a councilman. The committee said that if the investigating officer from the lawyer's own city was to testify, he should avoid the representation even though the proceeding was in a different city, but otherwise there was no ethical reason he could not represent a defendant or witnesses in such proceedings.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 5-21), the subject matter of which is now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.7 before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer-councilman take the civil case despite the officer being from his city?

A: Under this opinion, yes, ordinarily. The committee found no impropriety where the officer was called only to establish undisputed scene facts, with the caveat that the lawyer should evaluate whether he would have to impeach or embarrass the officer.

Q: When should he decline the representation?

A: The opinion identified the situations where the lawyer would be required to attack the officer's testimony, or where peculiar circumstances might pressure the officer to color his testimony in the lawyer's favor.

Q: What about a traffic matter in a different city?

A: The committee said that if the investigating officer from the lawyer's own city was to testify, he should avoid the representation even in another city's court, but otherwise he could represent defendants or witnesses in such proceedings.

Background and rules framework

The opinion applied EC 5-21 of the former Code, which addressed a lawyer's exercise of professional judgment free from compromising interests, in the context of a lawyer holding municipal office. That subject is now in Rule 4-1.7, governing conflicts of interest among current clients and the lawyer's own interests. The Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• EC 5-21 [Code of Professional Responsibility; subject matter now in Rule 4-1.7]

Other opinions cited:

• Florida Opinion 71-12

See also

• FL Bar Ethics Op. 72-9: Municipal Prosecutor's Firm
• FL Bar Ethics Op. 72-38: Public Defender's Firm Conflict
• FL Bar Ethics Op. 71-59: Sharing an Office Suite With a Lobbyist

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-25/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-25-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-25
September 13, 1971
Advisory ethics opinions are not binding.
A lawyer who is also a city councilman may represent a client in a civil matter related to an accident investigated by one of the city's police officers as the lawyer will not need to challenge or impeach the testimony of the officer.
CPR: EC 5-21
Opinion: 71-12
Chairman Massey stated the opinion of the committee:
An inquiring member of The Florida Bar seeks advice on whether he, as an attorney and also a city councilman, may represent an injured party in a civil matter wherein the police officer investigating the accident involved is an officer of the same municipality as the attorney-councilman.
As a normal rule, there is nothing improper in the representation, notwithstanding the fact that the policeman is from the same city. There may be some instances wherein the representation could become improper. These could occur should the attorney-councilman be required to attempt to impeach the policeman's testimony or were there circumstances of a peculiar nature wherein the policeman might feel he was under pressure to color his testimony in behalf of the attorney-councilman. Ordinarily, however, a policeman is called to establish measurements, occupancy of vehicles and other scene-of-accident facts which cannot be in serious dispute, and from this general viewpoint of testimony, no impropriety exists. The Committee suggests the inquirer must evaluate whether he would assault the policeman's testimony or place the policeman in an embarrassing position because of the attorney's position with the same city. For general controlling principles, see EC 5-21 and Florida Opinion 71-12.
The attorney further asks if he may ethically represent a prosecuting witness as to a traffic accident or the defendant charged in a traffic accident in a municipality other than that wherein he is a city councilman. In the event the investigating police officer from the attorney-councilman's city is to testify, he should avoid the representation even though the municipal court proceeding is in a different city. However, other than this restriction, there is no ethical reason why the attorney-councilman cannot represent a defendant or witnesses in such court proceedings.