The Florida Bar

Ethics Opinion

Opinion 72-12

May 9, 1972
Advisory ethics opinions are not binding.
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.

Ch. 63-2026, Laws of Florida
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
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.1
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.2
Of course, the question whether the proceedings do in fact accord the parties due process is ultimately
one of law and not of ethics.


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.

For a thorough discussion of due process pitfalls in somewhat similar circumstances, see
Florida Attorney General’s Opinion 072-64 and cases therein cited.

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.