Can a part-time city attorney whose law partner is a legislator advise the city about legislation?

Plain-English summary

The inquirer was a member of a sizeable law firm, one of whose members was a legislator. Among the firm's clients was a municipality, for which the inquirer served as City Attorney, supervising a legal department of mostly part-time assistant attorneys. The city, as a coordinate arm of government, was interested in legislative activity and sometimes prepared local legislation and urged its passage at county-delegation sessions and occasionally before the delegation at Tallahassee. The inquirer asked for guidance in light of the committee's recent (later withdrawn) Opinion 67-5.

The committee declined to draw a distinction between the legislative interest of a branch of government and the profit-making private enterprise considered in its supplement to Opinion 67-5. It emphasized that Opinion 67-5 was limited to its definition of lobbying, "the making of representations to the members of a legislative body for the purpose of influencing consideration by such legislators of pending or proposed legislation," and did not suggest that advising a client on the contents of existing or proposed legislation, or the desirability of change, was improper. Accordingly, the committee saw no objection to the City Attorney advising city officials or departments about legislation or supervising assistant city attorneys in similar work. To stay consistent with Opinion 67-5, however, any actual appearance before the legislature (in delegation sessions, committee meetings, or otherwise) should be conducted by a lawyer or layman other than the City Attorney; if that person also served at times as an assistant city attorney, the city should designate him a legislative representative during that service, compensate him accordingly, and have him report on legislative matters to a city official other than the City Attorney.

Currency note

This opinion was issued in April 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 and built on the (later withdrawn) Opinion 67-5. Conflicts of interest, including those arising from a lawyer's other responsibilities and a partner's roles, are 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 Treat this page as historical context, not current guidance.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. The opinion it construed, 67-5, has since been withdrawn.

Common questions

Q: Can a city attorney whose partner is a legislator advise the city on pending bills?

A: Under this opinion, yes. The committee found no objection to the City Attorney advising city officials about the contents of existing or proposed legislation or the desirability of change.

Q: What could the city attorney not do?

A: The committee said any actual appearance before the legislature on the city's behalf should be conducted by someone other than the City Attorney, to stay consistent with the lobbying limits in Opinion 67-5.

Q: How could the city handle legislative appearances?

A: The committee suggested designating another lawyer or layman as a legislative representative, compensating that person accordingly, and having them report on legislative matters to a city official other than the City Attorney.

Background and rules framework

The opinion applied the former Canon 6 and construed the committee's earlier (later withdrawn) Opinion 67-5, which had defined lobbying narrowly as making representations to legislators to influence pending or proposed legislation. Conflicts of interest of this kind are now addressed by Rule 4-1.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests]

Other opinions cited:

• Florida Opinion 67-5 (since withdrawn)

See also

• FL Bar Ethics Op. 69-21: City Lawyer Before a Governing Board
• FL Bar Ethics Op. 71-25: Lawyer City Councilman Representing a Client Against a City Officer

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-12.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-12
April 25, 1967
Advisory ethics opinions are not binding.
A part-time city attorney who has a legislator partner is not precluded by Opinion 67-5 [since withdrawn] from advising the city as to the contents of existing or proposed legislation or as to the possibility or desirability of change. Any actual appearance on behalf of the city before the legislature should be conducted by a person other than the city attorney.
Canon: 6
Opinion: 67-5
Chairman MacDonald stated the opinion of the committee:
The effect of our recent Opinion 67-5 [since withdrawn], as supplemented, on a member of The Florida Bar presents the subject of this inquiry. The inquirer is a member of a sizeable law firm in a Florida city, one of whose members is a legislator. Among other clients, the inquirer represents the municipal government, being denoted as City Attorney. The legal department of the municipality is composed of a number of assistant attorneys (all but one of whom are part-time) and the inquirer as City Attorney.
As one coordinate arm of government the City through its legal department is necessarily interested in the activities of the legislature, and sometimes prepares local legislation and urges passage of such laws at sessions of the local county delegation held prior to the convening of the legislature and on infrequent occasions before the members of the delegation at Tallahassee.
The inquirer is involved in this matter to the extent of supervision of the legal department. He is paid an annual fee which is remitted to his firm. He asks for guidance in the light of our Opinion 67-5 [since withdrawn] as to the foregoing.
It might be suggested that there is a definite distinction between the legislative interest of a branch of the sovereign and a profit-making private enterprise as was considered in our supplement to Opinion 67-5 [since withdrawn]. However, we do not think it appropriate to draw such a distinction in this instance. Instead we emphasize that Opinion 67-5 [since withdrawn] was necessarily limited to the definition of lobbying there given which was stated thusly:
We conceive lobbying generally to be the making of representations to the members of a legislative body for the purpose of influencing consideration by such legislators of pending or proposed legislation.
We did not suggest that it would be improper for the lawyers there involved to advise the client as to the contents of existing or proposed legislation or to advise as to the possibility or desirability of change. Instead our opinion was limited to the direct persuasive process commonly regarded as lobbying. In this light we see no objection to the City Attorney advising the appropriate city officials or departments concerning proposed or existing legislation, or in supervising the activities of assistant city attorneys on similar endeavors.
We do believe that in order to be consistent with our Opinion 67-5 [since withdrawn] any actual appearance before the legislature, whether in delegation sessions, committee meetings, or otherwise, should be conducted by a lawyer or layman other than the City Attorney. In the event that any such person so designated is otherwise on occasion serving as an assistant city attorney, we believe that it would be appropriate for the City during the period of such service to designate him as a legislative representative, and compensate him accordingly. Within the scope of his legislative responsibilities he should report directly to some city official other than the City Attorney.