Can a county attorney who represents the county commission also represent an individual commissioner charged before the state ethics commission?

Plain-English summary

The committee considered a county attorney, on contract with the county and also in private practice, who was asked by a county commissioner to serve as legal counsel in defending a charge before the ethics commission of misuse of public office (directing county employees to work on private property during working hours with county road equipment). The committee found that this situation represents an inherent conflict and the appearance of impropriety.

The committee explained that DR 5-105 commands a lawyer to refuse multiple employment if his professional judgment will be or is likely to be adversely affected by representation of another client, and that EC 5-14 precludes acceptance or continuation of employment that will adversely affect the lawyer's judgment on behalf of or dilute his loyalty to a client whenever he is asked to represent two or more clients who may have differing interests. Because a county attorney represents the county commission, not the individual members serving on it, the committee concluded he places his responsibility as county attorney in jeopardy when he accepts an engagement to represent a particular commissioner before the Florida Ethics Commission.

Currency note

This opinion was issued in 1978, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

As the opinion's own note records, it was re-affirmed by the Professional Ethics Committee at its April 10, 2006 meeting.

Common questions

Q: Can a county attorney personally represent a commissioner in an ethics charge?

A: The opinion concluded the county attorney may not, because he represents the commission rather than its individual members, creating an inherent conflict.

Q: Why is representing both the commission and a commissioner a conflict?

A: The opinion concluded the county attorney's loyalty to the commission is jeopardized when he represents a particular commissioner whose interests may differ, contrary to DR 5-105 and EC 5-14.

Q: Is this opinion still recognized by the bar?

A: The opinion's note records that the Professional Ethics Committee re-affirmed it at its April 10, 2006 meeting.

Background and rules framework

The opinion interprets CPR EC 5-14 and DR 5-105. The conflict analysis corresponds to Model Rule 1.7 (Florida Rule 4-1.7), and the principle that the county attorney represents the organization rather than its constituents corresponds to Model Rule 1.13 (Florida Rule 4-1.13).

Citations and references

Rules of Professional Conduct:

• CPR EC 5-14; DR 5-105 (Model Rules 1.7, 1.13)

See also

• FL Bar Ethics Op. 81-7: County Government Firm Defending Traffic Clients
• FL Bar Ethics Op. 78-8: Representing a Sheriff While a Partner Does Criminal Defense
• FL Bar Ethics Op. 96-2: Law Firm Sheriff and Criminal Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-77-30/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-77-30-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 77-30
May 9, 1978
Advisory ethics opinions are not binding.
An attorney who by contract represents the county commission, not individual members, may not represent an individual commissioner before the Florida Ethics Commission in a matter involving misuse of public office. Such representation would present an inherent conflict and the appearance of impropriety.
Note: This opinion was re-affirmed by the Professional Ethics Committee at its April 10, 2006 meeting.
CPR: EC 5-14, DR 5-105
Vice Chairman Waas stated the opinion of the committee:
The inquiring attorney asks whether a professional conflict would arise under the following circumstances:
A county commissioner is charged before the ethics commission with misuse of public office in directing county employees to work on private property during normal working hours with county road equipment. The subject commissioner asks the county attorney to represent him as legal counsel. The county attorney is on contract with the county and engages in the private practice of law in addition to his work for the county.
The Committee finds that the above situation represents an inherent conflict and the appearance of impropriety. DR 5-105 commands a lawyer to refuse multiple employment if his professional judgment will be or is likely to be adversely affected by representation of another client. Additionally, EC 5-14 provides that:
Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse or otherwise discordant.
A county attorney represents the county commission, not the individual members serving on it. He places his responsibility as county attorney in jeopardy when he accepts an engagement to represent a particular commissioner before the Florida Ethics Commission.