May a lawyer who serves on a municipal advisory board represent private clients before other city agencies and courts?

Plain-English summary

A member of The Florida Bar was asked to serve on the five-member Advisory Cemetery Board of the city in which his firm's offices are located. Board members serve without pay, and their sole function is to advise the City Commission, the City Manager, and the cemetery trustees on matters relating to the city cemetery. His firm appears from time to time in the Municipal Court and before the City Commission and various city agencies on behalf of clients. He asked whether he could continue that representation if he accepted the appointment.

The committee noted it had dealt with the propriety of attorneys in part-time or full-time public office representing private clients on numerous prior occasions. It concluded that, in the absence of any statute or ordinance prohibiting it, the attorney may properly represent private clients before those agencies, boards, and that court, subject to three provisos: the matter must have no relationship to any decision made by the board; the board must have no control over any administrative or judicial officer before whom the attorney would appear; and the board must have no control over any public official who may appear as a witness whose testimony the attorney might have to attack.

Currency note

This opinion was issued in 1974, 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 Treat this page as historical context, not current guidance.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 current Rules 4-1.7 and 4-1.11 before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer serve on the advisory board and still represent private clients before the city?

A: Under this opinion, yes, absent a statute or ordinance prohibiting it, and provided the three conditions in the opinion are met.

Q: What three conditions did the committee attach?

A: The matter must have no relationship to any board decision; the board must have no control over the official or court before whom the attorney appears; and the board must have no control over a public-official witness whose testimony the attorney might have to attack.

Q: Did the committee say a statute could still bar the arrangement?

A: Yes. The committee framed its conclusion as applying in the absence of any statute or ordinance prohibiting the dual role.

Background and rules framework

The opinion did not cite specific provisions of the former Code of Professional Responsibility; it relied on the committee's prior opinions addressing lawyers who hold part-time or full-time public office while representing private clients. The subject corresponds in current practice to Rule 4-1.7 (conflicts of interest, current clients) and Rule 4-1.11 (special conflicts for former and current government officers and employees), and to Model Rules 1.7 and 1.11.

Citations and references

Rules of Professional Conduct:

• The opinion did not cite specific Code provisions.

Other opinions cited:

• Florida Opinions 69-21, 69-22, 70-11 (since withdrawn), 71-12, 71-25, 72-9 (lawyers in public office representing private clients)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-27/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-27-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-27
October 30, 1974
Advisory ethics opinions are not binding.
An attorney who is a member of a municipal advisory board may properly represent a private client before other municipal agencies and courts provided that: (1) the matter in which the attorney represents the client has no relationship to any decision made by the board; (2) the board has no control over any administrative or judicial officer before whom the attorney would appear; and (3) the board has no control over any public official who may appear in a proceeding as a witness and whose testimony the attorney might have to attack.
Opinions: 69-21, 69-22, 70-11, 71-12, 71-25, 72-9
Vice Chairman Sullivan stated the opinion of the committee:
A member of The Florida Bar has been asked to serve on the five-member Advisory Cemetery Board of the city in which his firm's offices are located. The Board members serve without pay. Their sole function is to advise the City Commission, the City Manager and the cemetery trustees in matters relating to the city cemetery. He will not serve as an attorney for the Board although the fact that he is an attorney is one of the reasons he has been asked to serve on the Board.
The attorney's firm appears from time to time in the Municipal Court and before the City Commission and various city agencies and boards in behalf of the firm's clients.
He asks whether he may properly continue that representation if he accepts the appointment.
The Committee has on numerous occasions dealt with the propriety of attorneys who serve in part-time or full-time public offices representing private clients in courts or before administrative bodies. See Opinions 69-21, 69-22, 70-11 [since withdrawn], 71-12, 71-25 and 72-9.
The Committee is of the opinion that, in the absence of any statute or ordinance prohibiting it, the attorney may properly represent private clients before those agencies and boards and in that court provided that:

1. The matter in which the attorney represents the client has no relationship to any decision made by the Board;
2. The Board has no control over any administrative or judicial officer before whom the attorney would appear; and
3. The Board has no control over any public official who may appear in a proceeding as a witness and whose testimony the attorney might have to attack.