The Florida Bar

October 14, 1965

It is not unethical for a lawyer whose partner is a member of the governing board of a county hospital district to accept employment by the board, providing that the relationship is disclosed publicly, the board member does not participate in the fees, and the board member does not participate in decisions affecting the lawyer's employment and compensation. Nevertheless, the employment would be open to public misunderstanding.

Canon: 6

Chairman Kittleson stated the opinion of the committee:

A member of The Florida Bar has requested the Committee's advice on the question indicated below, in which he and his law partner are the principals. We understand the facts to be these. Lawyers A and B are partners in the practice of law, under the firm name of A & B. A has been appointed by the Governor to a five-member governing board for a newly-created county hospital district, and has been elected board chairman. A's partner, B, was a major participant in the citizens' group that sought a new county hospital, and B has devoted substantial time, on a voluntary basis, to legal matters in connection with creation of the special district. The governing board seeks to retain and employ B as the board's attorney. A has expressed concern to the other board members that a conflict-of-interest question may arise if the board chairman's law partner is appointed board attorney. A has offered to resign from the board. The other four board members insist that A not resign and that B nevertheless be employed as board attorney. A has sought the Florida Attorney General's opinion on the question, who has advised that he can find no controlling statutory provisions, and that the general conflict-of-interest statutes (Sections 839.07839.09, Florida Statutes) do not apply to services. The Florida Attorney General has pointed out, however, that ethical standards of conduct are more rigidly applied to the professions than to general business relationships. A and B propose that any fees paid to B by the board will not be shared by A nor constitute income to the firm of A & B. Advice is asked on the propriety of B's employment under the circumstances outlined.

A majority of the Committee find no clear ethical violations in the proposal, so long as (a) all relevant relationships are publicly and fully disclosed to the board, and (b) A does not participate, directly or indirectly, in any fees paid to B by the board, and (c) A does not participate in deliberations or voting on matters affecting B's employment and fees paid to B by the board. Some of the Committee compare the situation with that of an attorney employed for legal services in behalf of a personal representative, receiver, or other fiduciary who is the attorney's law partner, or that of an attorney employed for legal services in behalf of a corporation, when either he himself or his law partner is a director of the corporation. A minority of the Committee feel that the arrangement would inhibit the ability of a public body to weigh objectively the advice given to it by its attorney, and would therefore be improper. All of the Committee suggest that, while the arrangement may not conflict with any explicit rules of ethics, it is nevertheless open to possible public misunderstanding that may not be in the best interest of either the governmental body or the profession of law.

[Revised: 08-24-2011]