The Florida Bar

January 12, 1971

An attorney representing a government interest is bound by the same ethical considerations as an attorney for a private individual in respect to statements or publicity pertaining to litigation pending by or against the government.

Note: The trial publicity rule was amended subsequent to Gentile v. State Bar of Nevada, 501 U.S. 1047, 111 S.Ct. 2720, 115 L.Ed 2d 888 (1991).

CPR: DR 7-107
Opinion: ABA 199

Chairman Massey stated the opinion of the committee:

The Board of Governors of The Florida Bar has requested this Committee's opinion as to whether an attorney representing the government, federal, state or local, or one of the government's agencies, commissions or boards, is bound by the same ethical considerations as private attorneys admitted to practice in Florida as the same would obtain to statements, comments or publicity pertaining to litigation pending by or against the government or its agencies, commissions or boards.

The Code of Professional Responsibility makes no distinction between attorneys representing the government or its entities as contrasted to the lawyer representing his private client in matters pertaining to the conduct of an attorney in litigation. Such conduct is spelled out with particularity as to trial publicity at CPR DR 7-107. The application thereof is of equal effect upon all attorneys, those representing the government or otherwise. In viewing the actions of one representing the government, the situation may often be more delicate than that which faces the lawyer for a private client. This is true as the government attorney speaks for his employer, which in ultimate analysis should be the people for whom the government exists, and yet such attorney is responsive to the heads of government or departments to whom he must owe some allegiance and loyalty as well. He should scrupulously exercise care in what he says in order to maintain the dignity of the office and bring about respect for the governmental processes for which he stands.

Of particular interest is ABA Formal Opinion 199, which construed Canon 20 prior to the Code of Professional Responsibility. In reviewing a statement of the Attorney General of the United States relative to antitrust laws, it was held that statements relating to prospective or pending criminal or civil proceedings, while not prohibited by the Canon then applicable, should avoid any statement of fact likely to create an adverse public attitude respecting the alleged actions of defendants to the proceedings. Even though it was doubtful public opinion would sway or bias a trial judge in a nonjury case, no litigant should be called upon to run the risk. Thus, even prior to the Code of Professional Responsibility, the ethical criteria were essentially the same.

A lawyer who represents the government is no less subject to the Code of Professional Responsibility, and no more authorized to violate it in real or purported furtherance of his employer's objectives, than is a lawyer representing a private person. We are not called upon to advise whether the Federal supremacy-of-law doctrine would immunize a Federal government lawyer, acting under orders from his governmental superiors, from professional obligations to which other lawyers are subject.

[Revised: 08-24-2011]