If a lawyer is both an assistant state attorney and the county school board's attorney, can he handle the board's bond validation proceeding?

Plain-English summary

The inquiring lawyer held two public positions, one as an assistant state attorney and one as attorney for the county school board. The board proposed to issue revenue certificates and to bring validation proceedings. Under the applicable statutes, a copy of the validation petition and the rule nisi had to be served on the state attorney, who was required to inquire into the matter and present defenses if he believed the petition was defective, insufficient, untrue, or not duly authorized. The board understood the dual position and was willing to have him act for it anyway.

The committee recommended that the lawyer not participate in the validation proceeding in either of his public capacities. It acknowledged the proceeding might be perfunctory and non-controversial, with no public harm, but concluded the risk of public misunderstanding was not desirable for either the profession or the public boards involved. The committee's reasoning rested on the point that the state attorney's office, of which the lawyer was a part, had a legal duty to question, challenge, and if necessary oppose the petition the board's attorney would be advocating.

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. Conflicts of this kind are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar (concurrent conflicts) and Rule 4-1.11 (government lawyers); the Model Rule analogues are Rules 1.7 and 1.11. 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 Treat this page as historical context, not current guidance.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: Why couldn't the lawyer represent the school board in the validation case?

A: The committee reasoned that his own office, the state attorney's office, had a statutory duty to inquire into and, if appropriate, oppose the validation petition, so representing the board would place him on both sides of the matter.

Q: Did it matter that the board consented and the case might be routine?

A: The committee acknowledged the proceeding might be perfunctory with no public harm, but concluded the risk of public misunderstanding made participation undesirable for the profession and the public boards regardless.

Background and rules framework

The opinion applied the former Canon 6 on adverse and conflicting interests. The conflict ran between two public roles: the state attorney's statutory duty to test the validation petition and the school board's interest in having it granted. Conflicts involving government lawyers are now addressed by Rule 4-1.7 (concurrent conflicts) and Rule 4-1.11 of the Rules Regulating The Florida Bar; the Model Rule analogues are Rules 1.7 and 1.11.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rules 4-1.7 and 4-1.11]

See also

• FL Bar Ethics Op. 66-1: A Prosecutor's Partner and Criminal Defense
• FL Bar Ethics Op. 66-62: Prosecutor Later Representing a Wrongful-Death Claimant

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-72/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-72.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-72
December 7, 1965
Advisory ethics opinions are not binding.
A lawyer who holds two public positions, one as an assistant state attorney and another as attorney for the county school board should not participate in either capacity in validation proceedings for the school board's revenue certificates, given the legal duty of the state attorney's office to challenge the validation petition if appropriate.
Canon: 6
Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar has requested the Committee's advice on a possible conflict of interest question. We understand that he holds two public positions as an attorney, one as an assistant state attorney and another as attorney for the county school board. The county school board proposes to issue revenue certificates and in connection therewith to instigate validation proceedings in the courts. Under the applicable statues, a copy of the petition for validation and the rule nisi must be served upon the state attorney, who must inquire into the matter and must present defenses if he believes that the petition is defective, insufficient, untrue, or not duly authorized. The county school board understands this dual position and the possibility of conflict, and nevertheless is agreeable to his acting as attorney for the board in the validation proceedings. He seeks advice on the ethical propriety of doing so.
The Committee recommends that the lawyer not participate in the validation proceedings in either of his public capacities. The Committee recognizes that the proceeding may turn out to be perfunctory and non-controversial and that no public harm may result. But, the Committee believes, the risk of public misunderstanding is not desirable from either the standpoint of the legal profession or that of the pertinent public boards and offices. The state attorney's office, of which he is a part, has a legal duty to question, challenge, and if necessary oppose the petition that the school board's attorney will be advocating.