Can a law firm represent a city in one matter while other lawyers in the firm represent private clients against the city in unrelated matters?

Plain-English summary

A municipality asked a Florida law firm of more than 30 attorneys to serve as special counsel in a public-employee labor relations matter, the city attorney's office lacking the expertise. The firm was already representing a regular private client in a condemnation action the municipality was prosecuting; the lawyer handling that condemnation matter would not be involved in the labor matter, and none of the firm's labor lawyers had any other matter pending before the municipality. The mayor, city council, and the condemnation client had all been informed and wished the firm to proceed. The firm asked (1) whether it could ethically represent the municipality before the Public Employees Relations Commission, and (2) whether undertaking the labor matter would bar other firm attorneys from appearing before other municipal boards in wholly unrelated matters, assuming disclosure to and consent by all affected clients.

A majority of the committee answered "yes" to the first question and "no" to the second, analyzing the inquiry under Canon 5 (conflicts of interest). Earlier Opinions 59-25, 60-12, 65-42, and 69-21 had disapproved an attorney or firm regularly representing a public body while regularly representing private clients before that body, but the committee found it need not go that far: the labor representation was for a limited purpose, and the legal issues in the labor matter and the condemnation case were not so related that the firm's independent professional judgment would likely be adversely affected. Because the matters in which the firm proposed to represent other clients before municipal boards were totally unrelated to the labor matter, the majority reached the same conclusion as to those clients. The committee found that the government-in-the-sunshine laws requiring advance public disclosure of the dual representation eliminated any Canon 9 appearance-of-impropriety problem, and it receded from any suggestion in Opinion 60-12 that a public body cannot agree to such dual representation. One committeeman believed the dual representation improper for the reasons stated in the prior opinions.

Currency note

This opinion was issued in 1976, 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: Can a firm be special counsel to a city and also have lawyers appear against the city?

A: The opinion concluded it can, where the firm's city engagement is for a limited purpose and the other matters are wholly unrelated, with disclosure to and consent by all affected clients.

Q: Did the firm need consent from everyone involved?

A: Yes. The inquiry assumed full disclosure to and consent by both the private clients and the municipality, and the committee's approval rested on that footing.

Q: How did the committee handle the appearance-of-impropriety concern?

A: Per the opinion, the government-in-the-sunshine laws requiring advance public disclosure of the dual representation and its terms eliminated any Canon 9 appearance-of-impropriety problem on these facts.

Background and rules framework

The opinion applied Canon 5 (independent professional judgment and conflicts of interest) and Canon 9 (avoiding the appearance of impropriety) of the former Code of Professional Responsibility. The conflict-of-interest analysis corresponds to Model Rule 1.7 (concurrent conflicts, including consentable conflicts with informed consent); the current Florida counterpart is Rule 4-1.7.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR Canon 5; Canon 9

Statutes:

• Chapter 447, Florida Statutes (public employee labor relations); Section 447.05, Florida Statutes

Other opinions cited:

• Florida Bar Opinions 59-25; 60-12; 65-42; 69-21

See also

• FL Bar Ethics Op. 76-18: Assistant City Attorney Conflict
• FL Bar Ethics Op. 76-5: Lawyer-Legislator as City Counsel
• FL Bar Ethics Op. 75-43: Defense Lawyer as Prosecutor

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-33-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-33
January 19, 1976
Advisory ethics opinions are not binding.
A law firm representing a municipality in labor relations matters may ethically represent private clients adverse to the municipality and appear before municipal boards or bodies in matters unrelated to labor relations.
CPR: Canon 5, Canon 9
Opinions: 59-25, 60-12, 65-42, 69-21
Vice Chairman Sullivan stated the opinion of the committee:
A law firm in Florida advises:
1. A municipality with approximately 4,000 employees has a full-time city attorney and both full-time and part-time assistant city attorneys. One of the full-time assistants works exclusively for and is answerable only to the City Council. His assignment is to review legal advice given to the Council by the city attorney and the other assistant city attorneys.
2. Upon occasion, the municipality retains private attorneys to handle matters requiring special expertise. The Mayor initiates and recommends to the City Council the hiring of special counsel. The Council in public session discusses all details regarding such employment — the nature of the legal work, the term of employment, the fee arrangement — and then approves or rejects the Mayor's recommendation.
3. A labor organization, proceeding under Chapter 447, Florida Statutes, has filed a petition seeking representation and bargaining rights for a specific group of municipal employees and has requested a hearing to determine the legal question of the appropriate unit and for a time, date and place for an election.
4. The City Attorney is of the opinion, in which the Mayor and City Council join, that his office does not have the expertise to represent the municipality in the matter. The Mayor and City Council have determined that the municipality must retain special counsel with expertise in the area of public employer labor relations and, to protect its interests, must do so immediately. They have asked the law firm to accept this representation.
5. The law firm is composed of more than 30 attorneys, three of whom specialize in labor relations. The firm is representing a regular client in a condemnation action which the municipality is prosecuting. The attorney handling the condemnation action for the firm will not be involved in the labor matter. None of the labor lawyers is involved in any other matter pending before the municipality.
6. The Mayor and City Council and the client in the condemnation proceeding have been fully informed and have indicated their desire that the firm proceed with both matters.
The law firm asks:
1. Whether the firm may ethically represent the municipality before the Public Employees Relations Commission (see Section 447.05, Florida Statutes) in the matter involving the unit of employees sought.
2. If the firm undertakes the representation in the labor matter, would other attorneys in the firm be barred from appearing before other boards or bodies of the municipal government in matters totally unrelated to the labor matters, assuming disclosure to and consent by both those clients and the municipality?
A majority of the Committee answers "Yes" to the first question and "No" to the second.
In considering these inquiries we are, of course, dealing with possible conflict of interest and Canon 5 of the Code of Professional Responsibility. In Opinions 59-25, 60-12, 65-42 and 69-21 we dealt with situations where an attorney or a law firm regularly represented a public body and sought to represent private clients regularly before that body. We disapproved the practice.
While some members of the Committee believe that those opinions are too restrictive and should be re-examined, we need not go that far. The proposed representation of the municipality in the labor matter is for a limited purpose only. The Committee majority believes that the legal issues in the labor matter and the condemnation case are not so related that independent professional judgment in behalf of one client will be or is likely to be adversely affected by the acceptance of such employment or continuance of such multiple employment.
Because the matters in which the law firm proposes to represent other clients before boards or other bodies of the municipality are totally unrelated to the labor matter, the Committee majority is of the same opinion regarding representation of those clients.
We believe that the government-in-the-sunshine laws which require advance public disclosure of the dual representation and the terms of the law firm's representation of the municipality eliminate here any problems of appearance of professional impropriety under Canon 9. The condemnation action was already in progress when the municipality asked the law firm to represent it in the labor matter. While it does not appear that the law firm has any current matters before any boards or agencies of the municipality, the firm has represented regular clients before such boards and agencies in the past.
It seems to us that the law firm is requesting only the right to continue with its regular practice if it agrees to represent the municipality in the specialized field pursuant to the municipality's request. As applied to the inquiries here, we recede from any suggestion in Opinion 60-12 that a public body cannot agree to such dual representation.
One Committeeman believes the dual representation is improper for the reasons stated in our prior opinions.