Can the same county attorney serve as legal advisor to both the zoning commission and the board of zoning appeals that reviews the commission's decisions?

Plain-English summary

Volusia County's 1970 home-rule charter created a Department of Legal Services charged with advising county government, including advising county officials in zoning matters at two successive levels: the Zoning Commission and the Board of Zoning Appeals. Parties appearing before these boards objected to having the same assistant county attorney advise both, and the committee was asked whether that lawyer necessarily represented conflicting interests forbidden by the Code of Professional Responsibility. The inquiry was framed on the premise that the lawyer could restrict his participation to advising the lay board members on law and procedure, avoiding any advocate or adversary function.

A majority found no impropriety so long as the lawyer's role was limited to rendering legal advice for each zoning body without becoming an advocate for any particular position. The committee warned that the dual function could raise serious due-process questions if the lawyer departed the advisor role at the review level and became, in effect, an advocate for the result the Zoning Commission reached on the merits, while noting that whether the proceedings in fact afforded due process was ultimately a question of law, not ethics. A substantial minority believed the arrangement created an inevitable conflict of interest and that separate counsel should advise the two zoning bodies. The opinion referenced Chapter 63-2026, Laws of Florida, and Florida Attorney General Opinion 072-64.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance.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 one county lawyer advise both the zoning commission and the board that reviews its decisions?

A: Under this opinion, yes, with a limit. A majority found no impropriety as long as the lawyer's role stayed limited to giving legal advice to each body and he did not become an advocate for any particular position.

Q: What would cross the line?

A: The opinion warned that the lawyer would create a problem if, at the review level, he departed the advisor role and became in effect an advocate for the result the Zoning Commission reached on the merits below.

Q: Did the committee agree unanimously?

A: No. A substantial minority believed the arrangement created an inevitable conflict of interest and that separate counsel should advise the two zoning bodies.

Background and rules framework

The opinion analyzed whether advising two successive decision-making bodies in the same matter created a forbidden conflict of interest under the former Code of Professional Responsibility. In current Florida practice conflicts of interest are governed by Rule 4-1.7; the Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; no specific disciplinary rule cited

Statutes:

• Chapter 63-2026, Laws of Florida, Acts of 1963

Other opinions cited:

• Florida Attorney General Opinion 072-64

See also

• FL Bar Ethics Op. 74-27: Lawyer on a Municipal Advisory Board Representing Private Clients
• FL Bar Ethics Op. 72-48: A Prosecutor and His Partner as Appointed Defense Counsel
• FL Bar Ethics Op. 72-14: Public Office Space and Private Practice

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-12-1-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-12
May 9, 1972
Advisory ethics opinions are not binding.
A lawyer may act as legal advisor to both the Zoning Commission and the Board of Zoning Appeals, provided that, at the higher level of authority, he never steps outside the role of advisor to become an advocate for the result reached at the lower level.
Statute: Ch. 63-2026, Laws of Florida
Misc.: Atty. Gen. Op. 072-64
Chairman Clarkson stated the opinion of the committee:
In 1970 Volusia County adopted a "home rule" charter as authorized by Article VIII, Constitution of Florida, 1968. One section of the charter provided for a Department of Legal Services charged with advising the other departments and divisions of county government in legal matters. Included among the department's duties are the responsibility of advising county officials in zoning matters at two successive levels, the Zoning Commission and the Board of Zoning Appeals.
We are advised by the county attorney's office that parties appearing before these boards have objected to assignment of the same attorney as advisor to both boards. Our opinion is sought whether an attorney placed in this position necessarily represents conflicting interests in a manner forbidden by the CPR. As predicate for our views we are further told that the zoning proceedings are so conducted that the county's lawyer, designated an assistant county attorney, may restrict his participation to the role of advisor, avoiding any function of advocate or adversary. Presumably, his purpose is to advise the lay members of the zoning body at each level on matters of law and procedure.1
So long as the role of the lawyer is limited to rendering legal advice for each zoning body without involvement as an advocate for any particular position, a majority of the committee finds no impropriety. We reach this conclusion with the warning that it would be possible for the lawyer's dual function to raise serious questions of due process should he depart the role of adviser at the review level and become, in effect, an advocate for the result reached on the merits by the Zoning Commission in the first instance.2 Of course, the question whether the proceedings do in fact accord the parties due process is ultimately one of law and not of ethics.
1 The procedure followed is that set forth in a special act of the legislature which pre-dated Volusia's government. See Chapter 63-2026, Laws of Florida, Acts of 1963. The second hearing before the Board of Zoning Appeals is a form of administrative review and appears to contemplate an adversary proceeding between those seeking and those opposing zoning.
2 For a thorough discussion of due process pitfalls in somewhat similar circumstances, see Florida Attorney General's Opinion 072-64 and cases therein cited.
A substantial minority of the Committee believes that the arrangement here reviewed creates an inevitable conflict of interest and that separate counsel should advise the two zoning bodies.