Can a part-time public official run his private law practice out of the government office space provided for his public job?

Plain-English summary

The Board of Governors asked the committee whether a lawyer holding a part-time public office may use the public office space and facilities furnished for that position in connection with his private law practice. The inquiry framed several variations: the office located in a courthouse or other public building, the interchangeable use of publicly furnished telephone, equipment, and secretarial services, and the carefully separated incidental use of public facilities required by the nature of the office.

The committee identified three underlying concerns: the lawyer's use of public facilities for private benefit, the use of his public position as a "feeder" to his private practice, and the use of his public office location to connect the prestige or implied influence of the public position with his private practice. A majority concluded that a part-time public official should not use public office facilities for his private law practice, even if willing to reimburse the employer for part of the overhead. The committee added that this does not make it improper to occasionally make telephone calls or handle correspondence about private matters while on duty, provided it does not interfere with public duties, does not entail direct or indirect use of public funds, and is clearly agreeable to the public employer. He should not, however, hold out his public office as an office used for private practice or use it to consult with private clients, even with the employer's consent. Three members would have found no impropriety in the hypothetical arrangements, subject to safeguards. The committee compared Florida Opinion 65-16 (since withdrawn).

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against the current Rules Regulating The Florida Bar before relying on any specific requirement mentioned here.

Common questions

Q: Could a part-time public officer use his government office for his private practice if he reimbursed the agency for the overhead?

A: Under this opinion, no. The committee's majority said a part-time public official should not use public office facilities for his private law practice even if he was willing to pay or reimburse part of the overhead.

Q: Was any private use of the public office permitted at all?

A: Yes, on a narrow basis. The opinion treated occasional telephone calls and correspondence about private matters as permissible if they did not interfere with public duties, did not use public funds, and were clearly agreeable to the public employer.

Q: Could the lawyer advertise or hold out his public office as a place where he practiced privately?

A: No. The opinion said he should not hold out the public office as one of his offices for private practice, nor use it to consult with private clients, even with the employer's consent.

Background and rules framework

The opinion addressed the tension between a lawyer's public position and his private financial interest, including the concern that the public position not serve as a "feeder" channeling clients to the private practice. In current Florida practice the conflict-of-interest framework is in Rule 4-1.7 and the prohibition on conduct involving dishonesty or misuse of position is in Rule 4-8.4; the Model Rule analogues are Rules 1.7 and 8.4.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; no specific disciplinary rule cited

Other opinions cited:

• Florida Opinion 65-16 (since withdrawn)

See also

• FL Bar Ethics Op. 72-18: A Partner on Government Leave and the Firm Name
• FL Bar Ethics Op. 74-27: Lawyer on a Municipal Advisory Board Representing Private Clients
• FL Bar Ethics Op. 72-12: Advising Both a Zoning Commission and the Zoning Appeals Board

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-14/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-14-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-14
May 19, 1972
Advisory ethics opinions are not binding.
A lawyer who holds a part-time public office may not operate his private law practice from premises provided by his government employer, although his occasionally making a telephone call or handling correspondence related to his private practice would be permissible with the consent of his public employer.
Opinion: 65-16
Committeeman Kittleson stated the opinion of the committee:
We are asked by the Board of Governors of The Florida Bar for advice on the propriety of a lawyer's using public office space and facilities in connection with his private practice when the public office is furnished him as an incident of a part-time public position that he holds. Specific questions propounded are set out in full:
A. Is the location of an office for the private practice of law, in an office furnished the practitioner for the performance of a function as a public officer, an improper use of a public office as feeder for the private practice of law, whenever:
(1) The office is located in the courthouse?
(2) The office is located in a public building pursuant to a specific contractual agreement with a governmental authority controlling the building, permitting the use of the office for the private practice of law?
(3) In addition to the use of publicly owned space, publicly furnished facilities including telephone, office equipment and secretarial service are used interchangeably in the private practice of law and the performance of the public function?
B. Is the location of a public office, identified and advertised as the location of an office or court, in an office maintained by the public official or judge for the private practice of law, an improper use of the public office as a feeder for the private practice of law, whenever:
(1) The public pays all or part of the cost of the use of such office for public purposes?
(2) The public pays all or part of the cost for other facilities located in the office, including telephone, office equipment and secretarial services which are used interchangeably in the performance of the function of the public office and in the private practice of law?
C. Is it improper for a part-time public officer or employee to carry on the private practice of law by the incidental and occasional use of public facilities, including a publicly owned and furnished office, telephone, office equipment and secretarial service, when:
(1) The use of the public facility is carefully separated from the private practice of law, so that neither the client, the general public or other practitioners are made conscious of such use so as to identify the public office with private practice carried on by such public official?
(2) Such use is required by the nature of the public office; that is to say, when the attorney must physically be present at the public facility whether he has public business to handle or not?
Implicit in these questions are considerations relating to (a) the lawyer's use of public facilities for his private benefit, (b) the lawyer's use of his public position as a feeder to his private law practice, and (c) the lawyer's use of his public office location as a means of connecting any prestige of his public position with his private law practice or as a means of implying that his public position gives him special influence or competence in handling matters for private clients.
The Committee prefers to deal with this subject generally rather than formulate separate answers to specific abstract questions.
A majority of the Committee has concluded that a part-time public official should not use public office facilities for his private law practice, even though he might be willing to pay or reimburse his public employer for part of the overhead.
This does not mean that he necessarily acts improperly if, while on duty at his public office, he occasionally makes telephone calls and occasionally handles correspondence relating to his private practice, if this does not interfere with his public duties, does not entail direct or indirect use of public funds, and is clearly agreeable to his public employer.
But he should not hold out his public office as being his office (or one of his offices) used for private practice, nor should he use his public office for consultation with his private clients, even with the consent of his public employers.
In responding as above, the majority presupposes the absence of any conflict-of-interest or improper influence questions.
Three members of the Committee find no impropriety in the hypothetical arrangements, provided the official personally pays the cost of any substantial use of his office telephone for private work, no filing facilities or clerical or secretarial services paid for by the public are submitted to private use and the official does not allow his private use of the office to interfere with the transaction of public business. The minority view would condemn dual use of the facilities if the nature of the public office were so related to the practice of law that functional separation of the two usages became improbable and a "feeder" relationship became a likelihood. Compare Florida Opinion 65-16 [since withdrawn].
In summary, the majority opinion requires a lawyer in private practice to maintain an office which is not owned or furnished by any branch of government but permits him, while on duty at his public office and with the consent of his public employer, to make incidental and occasional use of the facilities for private purposes.