The Florida Bar

May 9, 1972

A lawyer may act as legal advisor to both the Zoning Commission and the Board of Zoning Appeals, provided that, at the higher level of authority, he never steps outside the role of advisor to become an advocate for the result reached at the lower level.

Statute: Ch. 63-2026, Laws of Florida
Misc.: Atty. Gen. Op. 072-64

Chairman Clarkson stated the opinion of the committee:

In 1970 Volusia County adopted a “home rule” charter as authorized by Article VIII, Constitution of Florida, 1968. One section of the charter provided for a Department of Legal Services charged with advising the other departments and divisions of county government in legal matters. Included among the department's duties are the responsibility of advising county officials in zoning matters at two successive levels, the Zoning Commission and the Board of Zoning Appeals.

We are advised by the county attorney's office that parties appearing before these boards have objected to assignment of the same attorney as advisor to both boards. Our opinion is sought whether an attorney placed in this position necessarily represents conflicting interests in a manner forbidden by the CPR. As predicate for our views we are further told that the zoning proceedings are so conducted that the county's lawyer, designated an assistant county attorney, may restrict his participation to the role of advisor, avoiding any function of advocate or adversary. Presumably, his purpose is to advise the lay members of the zoning body at each level on matters of law and procedure. The procedure followed is that set forth in a special act of the legislature which pre-dated Volusia's government. See Chapter 63-2026, Laws of Florida, Acts of 1963. The second hearing before the Board of Zoning Appeals is a form of administrative review and appears to contemplate an adversary proceeding between those seeking and those opposing zoning.

So long as the role of the lawyer is limited to rendering legal advice for each zoning body without involvement as an advocate for any particular position, a majority of the committee finds no impropriety. We reach this conclusion with the warning that it would be possible for the lawyer's dual function to raise serious questions of due process should he depart the role of adviser at the review level and become, in effect, an advocate for the result reached on the merits by the Zoning Commission in the first instance. For a thorough discussion of due process pitfalls in somewhat similar circumstances, see Florida Attorney General's Opinion 072-64 and cases therein cited. Of course, the question whether the proceedings do in fact accord the parties due process is ultimately one of law and not of ethics.

A substantial minority of the Committee believes that the arrangement here reviewed creates an inevitable conflict of interest and that separate counsel should advise the two zoning bodies.

[Revised: 08-24-2011]