The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
May 19, 1972
May 19, 1972
A lawyer who holds a part-time public office may not operate his private law practice from premises provided by his government employer, although his occasionally making a telephone call or handling correspondence related to his private practice would be permissible with the consent of his public employer.
Committeeman Kittleson stated the opinion of the committee:
We are asked by the Board of Governors of The Florida Bar for advice on the propriety of a lawyer's using public office space and facilities in connection with his private practice when the public office is furnished him as an incident of a part-time public position that he holds. Specific
questions propounded are set out in full:
A. Is the location of an office for the private practice of law, in an office furnished the practitioner for the performance of a function as a public officer, an improper use of a public office as feeder for the private practice of law, whenever:
(1) The office is located in the courthouse?
(2) The office is located in a public building pursuant to a specific contractual agreement with a governmental authority controlling the building, permitting the use of the office for the private practice of law?
(3) In addition to the use of publicly owned space, publicly furnished facilities including telephone, office equipment and secretarial service are used interchangeably in the private practice of law and the performance of the public function?
B. Is the location of a public office, identified and advertised as the location of an office or court, in an office maintained by the public official or judge for the private practice of law, an improper use of the public office as a feeder for the private practice of law, whenever:
(1) The public pays all or part of the cost of the use of such office for public purposes?
(2) The public pays all or part of the cost for other facilities located in the office, including telephone, office equipment and secretarial services which are used interchangeably in the performance of the function of the public office and in the private practice of law?
C. Is it improper for a part-time public officer or employee to carry on the private practice of law by the incidental and occasional use of public facilities, including a publicly owned and furnished office, telephone, office equipment and secretarial service, when:
(1) The use of the public facility is carefully separated from the private practice of law, so that neither the client, the general public or other practitioners are made conscious of such use so as to identify the public office with private practice carried on by such public official?
(2) Such use is required by the nature of the public office; that is to say, when the attorney must physically be present at the public facility whether he has public business to handle or not?
Implicit in these questions are considerations relating to (a) the lawyer's use of public facilities for his private benefit, (b) the lawyer's use of his public position as a feeder to his private law practice, and (c) the lawyer's use of his public office location as a means of connecting any prestige of his public position with his private law practice or as a means of implying that his public position gives him special influence or competence in handling matters for private clients.
The Committee prefers to deal with this subject generally rather than formulate separate answers to specific abstract questions.
A majority of the Committee has concluded that a part-time public official should not use public office facilities for his private law practice, even though he might be willing to pay or reimburse his public employer for part of the overhead.
This does not mean that he necessarily acts improperly if, while on duty at his public office, he occasionally makes telephone calls and occasionally handles correspondence relating to his private practice, if this does not interfere with his public duties, does not entail direct or indirect use of public funds, and is clearly agreeable to his public employer.
But he should not hold out his public office as being his office (or one of his offices) used for private practice, nor should he use his public office for consultation with his private clients, even with the consent of his public employers.
In responding as above, the majority presupposes the absence of any conflict-of-interest or improper influence questions.
Three members of the Committee find no impropriety in the hypothetical arrangements, provided the official personally pays the cost of any substantial use of his office telephone for private work, no filing facilities or clerical or secretarial services paid for by the public are submitted to private use and the official does not allow his private use of the office to interfere with the transaction of public business. The minority view would condemn dual use of the facilities if the nature of the public office were so related to the practice of law that functional separation of the two usages became improbable and a "feeder" relationship became a likelihood. Compare Florida Opinion 65-16 [since withdrawn].
In summary, the majority opinion requires a lawyer in private practice to maintain an office which is not owned or furnished by any branch of government but permits him, while on duty at his public office and with the consent of his public employer, to make incidental and occasional use of the facilities for private purposes.