Can a lawyer serve as attorney for a public board on which his own law partner sits and chairs?

Plain-English summary

Lawyers A and B were law partners. A had been appointed by the Governor to a five-member governing board for a newly created county hospital district and elected board chairman. B had been a major participant in the citizens' group that sought the hospital and had volunteered substantial legal work on creating the district. The board wanted to retain B as its attorney. A raised the possible conflict and offered to resign, but the other four board members insisted A stay and B be hired. The Attorney General had advised he found no controlling statute and that the general conflict-of-interest statutes did not apply, while noting that ethical standards are applied more rigidly to the professions. A and B proposed that fees paid to B would not be shared by A or be income to the firm.

A majority of the committee found no clear ethical violation, so long as all relevant relationships were publicly and fully disclosed to the board, A did not participate directly or indirectly in any fees paid to B, and A did not participate in deliberations or voting on matters affecting B's employment and fees. Some members compared the situation to a lawyer employed for a fiduciary who is the lawyer's partner, or for a corporation when the lawyer or his partner is a director. A minority felt the arrangement would inhibit the board's ability to weigh its attorney's advice objectively and would be improper. All members suggested that even if the arrangement broke no explicit rule, it remained open to public misunderstanding that might not serve the governmental body or the profession.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on adverse and conflicting interests. A personal-interest conflict of this kind is now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). 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 Treat this page as historical context, not current guidance.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 be hired by a board his partner sits on and chairs?

A: A majority found no clear ethical violation, provided the relationships were fully and publicly disclosed, the board-member partner shared none of the fees, and that partner did not deliberate or vote on the hiring or the fees.

Q: What conditions did the committee attach?

A: Public and full disclosure to the board, no direct or indirect sharing of the fees by the board-member partner, and no participation by him in deliberations or voting on his partner's employment and compensation.

Q: Did the committee see any remaining problem?

A: Yes. All members noted that even if no explicit rule was broken, the arrangement was open to public misunderstanding that might not be in the best interest of the governmental body or the profession, and a minority thought it improper.

Background and rules framework

The opinion applied the former Canon 6 on adverse and conflicting interests, in the setting of a lawyer's financial interest in fees paid to his partner by a public board the partner chaired. Personal-interest conflicts are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). The committee separately noted that the Attorney General found the conflict-of-interest statutes inapplicable, leaving the question to professional ethics.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rule 4-1.7]

Statutes:

• Sections 839.07-839.09, Florida Statutes (general conflict-of-interest statutes; Attorney General advised they did not apply)

See also

• FL Bar Ethics Op. 65-72: Dual Public Roles in a Bond Validation
• FL Bar Ethics Op. 66-1: A Prosecutor's Partner and Criminal Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-57/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-57.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-57
October 14, 1965
Advisory ethics opinions are not binding.
It is not unethical for a lawyer whose partner is a member of the governing board of a county hospital district to accept employment by the board, providing that the relationship is disclosed publicly, the board member does not participate in the fees, and the board member does not participate in decisions affecting the lawyer's employment and compensation. Nevertheless, the employment would be open to public misunderstanding.
Canon: 6
Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar has requested the Committee's advice on the question indicated below, in which he and his law partner are the principals. We understand the facts to be these. Lawyers A and B are partners in the practice of law, under the firm name of A & B. A has been appointed by the Governor to a five-member governing board for a newly-created county hospital district, and has been elected board chairman. A's partner, B, was a major participant in the citizens' group that sought a new county hospital, and B has devoted substantial time, on a voluntary basis, to legal matters in connection with creation of the special district. The governing board seeks to retain and employ B as the board's attorney. A has expressed concern to the other board members that a conflict-of-interest question may arise if the board chairman's law partner is appointed board attorney. A has offered to resign from the board. The other four board members insist that A not resign and that B nevertheless be employed as board attorney. A has sought the Florida Attorney General's opinion on the question, who has advised that he can find no controlling statutory provisions, and that the general conflict-of-interest statutes (Sections 839.07839.09, Florida Statutes) do not apply to services. The Florida Attorney General has pointed out, however, that ethical standards of conduct are more rigidly applied to the professions than to general business relationships. A and B propose that any fees paid to B by the board will not be shared by A nor constitute income to the firm of A & B. Advice is asked on the propriety of B's employment under the circumstances outlined.
A majority of the Committee find no clear ethical violations in the proposal, so long as (a) all relevant relationships are publicly and fully disclosed to the board, and (b) A does not participate, directly or indirectly, in any fees paid to B by the board, and (c) A does not participate in deliberations or voting on matters affecting B's employment and fees paid to B by the board. Some of the Committee compare the situation with that of an attorney employed for legal services in behalf of a personal representative, receiver, or other fiduciary who is the attorney's law partner, or that of an attorney employed for legal services in behalf of a corporation, when either he himself or his law partner is a director of the corporation. A minority of the Committee feel that the arrangement would inhibit the ability of a public body to weigh objectively the advice given to it by its attorney, and would therefore be improper. All of the Committee suggest that, while the arrangement may not conflict with any explicit rules of ethics,

it is nevertheless open to possible public misunderstanding that may not be in the best interest of either the governmental body or the profession of law.