The Florida Bar

Ethics Opinion

Opinion 70-43

January 12, 1971
Advisory ethics opinions are not binding.
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).

DR 7-107
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
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.