Can a lawyer regularly employed by a city board represent private clients before the city's governing board?

Plain-English summary

The inquiry came from a lawyer who had been described in the committee's earlier Opinion 59-25 and who wrote to correct the facts of his situation. Since 1957 he had been employed part time by the City Council to serve as legal advisor to the Personnel Board, a semi-autonomous civil service body. He represented and advised only that board, not the City Council, and his duties ended once a matter left the Personnel Board; any court review was handled by the City Attorney. He also set out the city charter's conflict-of-interest provision and a city ordinance barring compensated officers and employees from appearing before city bodies on behalf of private interests in conflicting matters.

Without looking behind Opinion 59-25, the committee, with one member dissenting, concluded that the same result should apply on these facts: any attorney retained on a regular basis by a municipality or any of its official boards or commissions should not represent private clients before the governing board of the city. The committee acknowledged that the inquirer's local bar association ethics committee held a differing view, declined to draw inferences from the timing of the various opinions and resolutions, and noted that its own opinions are advisory only and that committees and members of the Bar will sometimes reach differing conclusions.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on conflicting interests. Concurrent conflicts of interest are now addressed by Rule 4-1.7. Treat this page as historical context, not current guidance.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 advises a city board take private clients before the city council?

A: Under this opinion, no. The committee concluded that any attorney regularly retained by a municipality or its official boards or commissions should not represent private clients before the city's governing board.

Q: Did it matter that the lawyer advised only one board and not the city council itself?

A: The committee reached the same result despite that distinction, applying its earlier Opinion 59-25 to the inquirer's clarified facts, with one member dissenting.

Q: What did the committee say about the local bar's contrary view?

A: It acknowledged the local bar association's ethics committee held a differing view and noted that its own opinions are advisory only, so committees and Bar members will sometimes reach differing conclusions.

Background and rules framework

The opinion applied the former Canon 6 on representing conflicting interests, in the setting of a lawyer holding a regular municipal engagement. Concurrent conflicts of interest 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 [Code of Professional Responsibility; conflict duties now in Rule 4-1.7]

Other opinions cited:

• Florida Opinion 59-25

See also

• FL Bar Ethics Op. 69-22: County Attorney Conflict
• FL Bar Ethics Op. 69-26: Prosecutor Sitting as Judge

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-21/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-21-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 69-21
July 23, 1969
Advisory ethics opinions are not binding.
An attorney employed on a regular basis by a municipality or its official boards or commissions should not represent private clients before the governing board of the city.
Canon: 6
Opinion: 59-25
Chairman MacDonald stated the opinion of the committee:
One product of the dissemination of prior opinions of the Committee in a recent publication distributed by The Florida Bar is the inquiry giving rise to this opinion. The inquirer in our Opinion 59-25 advises the Committee that he apparently never received the opinion from the then Committee, but that, more importantly, he is concerned that the facts of the opinion there set forth did not accurately relate his status. He advises as follows:
From 1957 to the present time, I have been employed by the City Council of the City of _ , on a part time basis, to attend all meetings of the Personnel Board and disciplinary proceedings before such Board, so as to be its legal advisor. Under the Resolution employing me, my duties are confined to advising the Personnel Board (Resolution _ , attached hereto). I do not advise, represent nor consult with the City Council. Although the City Council, as the legislative branch of the City, adopted the resolution employing me and setting up my compensation, the attorney-client relationship is solely between the Personnel Board and myself, under the terms of the Resolution of Employment.
The Personnel Board is a semi-autonomous body consisting of five lay members, serving without salary, each appointed by a 5/7 vote of the City Council for five year terms and three members elected by the employees for three year terms. The Board is charged with the responsibility of enforcing personnel procedures contemplated by the Civil Service Act (Chapter __ , Special Acts of 19_) and the Rules adopted by the Board in conformity therewith. It also hears appeals of Civil Service employees who are suspended, reduced or removed. The decisions of the Board are not reviewable by the City Council or the City Manager, but are final unless reversed by the Circuit Court, if appropriate action is filed therein. If such a suit for review is filed, I do not represent the City therein, but such representation is handled by the City Attorney. My duties cease as soon as the matter leaves the Personnel Board.
I might also here point out that Section 6 of the Charter of the City of _ provides:
"The City of _ shall have the power: . . . . To adopt such ordinance as may be deemed proper to prohibit any officer, board member, or employee to engage in any activity or enter into any agreement which shall be in conflict with his duties as such officer, board member or employee, and to provide penalties, including removal from office or employment, for any violation of such ordinance or ordinances."
The Conflict of Interest ordinance of the City provides:
"No officer, official, employee or assistant city attorney who received compensation shall appear before the city council or any board, commission, department or agency of the city in behalf of private interests in any matter which will be in conflict with his duties as such officer, official or employee."
One member dissenting, the Committee, without endeavoring to look behind Opinion 59-25, concludes that the same result should obtain under the facts above stated, it being the belief of the Committee that any attorney who is retained on a regular basis by a municipality or any of its official boards or commissions should not represent private clients before the governing board of the city.
We recognize as stated by the inquirer that his local bar association through its ethics committee has advised him that it holds a differing view. It is not clear to us whether this opinion, or the resolution of the City Council, were procured before or after the issuance of Opinion 59-25, and we offer no commentary, therefore, on the inferences which might be drawn from the time sequence involved. We merely state in passing that our opinions are advisory only, and that it is not at all unusual or unexpected that from time to time this Committee will reach conclusions not shared by other committees or members of the Bar.