Can a city mayor who is also a lawyer share in fees from negligence cases against the city that he refers to other lawyers?

Plain-English summary

A member asked about the propriety of the mayor of a large Florida city sharing in fees from several long-time clients who had negligence claims against the city, claims the mayor had forwarded to other attorneys for handling.

The committee said it would be improper to share in the fee unless the work and responsibility undertaken were commensurate with the forwarding fee received. More fundamentally, it did not see how the mayor could have an interest in litigation against the city without violating Canon 6 (adverse and conflicting interests), possibly Canon 29 (upholding the honor of the profession), and Canon 38 (a lawyer should accept no compensation without the client's knowledge and consent after full disclosure). It found no way the consent could be given by the city or its residents, and therefore held that participation in the fees would be unethical in this case, recommending that the mayor have no connection with the notices or litigation in future matters.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 6, 29, 34, and 38 of the Canons of Professional Ethics; the conflict facing a lawyer who also holds public office is now addressed by Rule 4-1.7 and Rule 4-1.11, and the division of fees with another lawyer by Rule 4-1.5, of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 holds public office share in fees from cases against that government body?

A: On these facts, no. The committee found the mayor could not have an interest in litigation against the city without a conflict under Canon 6, and concluded that participation in the fees would be unethical.

Q: Could the city or its residents consent to the arrangement?

A: The committee found no way the consent could be given by the city or its residents, which is part of why it treated the conflict as unwaivable here.

Q: Was sharing the forwarding fee a problem on its own?

A: The committee said sharing the fee would be improper unless the work and responsibility undertaken were commensurate with the forwarding fee received, separate from the overriding conflict concern.

Background and rules framework

The opinion applied former Canons 6 (adverse and conflicting interests), 29 (upholding the honor of the profession), 34 (division of fees), and 38 (compensation only with the client's knowledge and consent after full disclosure) of the Canons of Professional Ethics. The conflict facing a lawyer who also holds public office is now addressed by Rule 4-1.7 and Rule 4-1.11, and the division of fees between lawyers by Rule 4-1.5, of the Rules Regulating The Florida Bar (Model Rules 1.7 and 1.5).

Citations and references

Rules of Professional Conduct:

• Canons 6, 29, 34, 38 [Canons of Professional Ethics; see current Rules 4-1.7, 4-1.11, 4-1.5]

See also

• FL Bar Ethics Op. 62-58: Ex-Prosecutor Defending a Case
• FL Bar Ethics Op. 63-31: Prosecuting a Partner's Ex-Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-57/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-57-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-57
March 6, 1963
Advisory ethics opinions are not binding.
The mayor of a city should not participate in serving notices on the city in negligence cases nor participate in fees after referring the cause to other attorneys for handling.
Canons: 6, 29, 34, 38
Chairman Holcomb stated the opinion of the committee:
We have an inquiry from a member of The Florida Bar relative to the propriety of the Mayor of a large Florida city participating in fees of several long-time clients having negligence claims involving the city which he has forwarded to other attorneys for handling.
We feel that it would be improper to share in the fee unless the work and responsibility undertaken was commensurate with the forwarding fee received, but we do not see how it would be possible to have an interest in litigation against the city without violating Canon 6 relating to adverse and conflicting influences and interests, possibly violating Canon 29 relating to upholding the honor of the profession, and Canon 38 providing that a lawyer should accept no compensation without the knowledge and consent of his client after full disclosure. There is no way that we know of in which the consent could be given by the city or its residents. We would, therefore, have to hold that participation in the fees would be unethical in this case, and we would recommend that he have no connection with the notices or litigation in future matters.