The Florida Bar

June 14, 1965

A law firm regularly engaged in litigation against state agencies and officials should not accept a retainer to represent a state board composed of the governor and members of the cabinet.

Canons: 6, 11, 29, 37
Opinions: 60-12, 65-13; ABA 49, 50, 104, 245

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar states, in substance, that his firm has been approached to represent the State Board of Conservation on a retainer basis. This Board is composed of the Governor and other members of the Cabinet of the State of Florida. His firm is engaged in the general practice of law and presently has litigation pending in the courts of this state against members of the Cabinet in certain representative capacities. He also has other litigation pending against branches of state government, and anticipates that in the future it might be necessary for the firm to bring suit against state officials or administrative agencies or boards. Our opinion is sought regarding the propriety of accepting the employment tendered under these circumstances.

This Committee has been called upon to consider analogous situations. We did so in our Opinions 60-12 and 65-13. It is the opinion of a majority of the Committee, as it was in the opinions mentioned, that the contemplated employment should not be accepted under the circumstances mentioned. This conclusion is reached, in part, pursuant to the general language of Canons 6, 11, 29 and 37 as well as language contained in Opinions 49, 50, 104, and 245 of the Professional Ethics Committee of the American Bar Association. There is no prohibition in the Canons which applies directly to the problem, provided that the full disclosure requirement of Canon 6 is met. A majority of the Committee feels, however, that the contemplated action could easily be misunderstood by the public and would not be in the best interests of the legal profession.

One of the most experienced and respected members of the Committee has responded and dissents from the view above expressed. That member believes there would be no ethical objection to accepting the employment provided a full disclosure of the position and intentions of the firm is made and the right is reserved at the time of employment to proceed against state officials and agencies not represented as such by the firm.

[Revised: 08-24-2011]