Opinion 76-5
FLORIDA BAR ETHICS OPINION OPINION 76-5 May 24, 1977 Advisory ethics opinions are not binding. It is permissible for a lawyer to be a member of the Florida legislature while he or his law partner is a city attorney or counsel for a special district, but it would be impermissible for him to vote on or participate in matters directly or significantly related to the interests of the city or district, to fail to disclose the relationships to all concerned, or to make use of his public office as a means for private gain. CPR: Opinions: Misc.: Canon 8; EC 8-8; DR 8-101; Canon 9; EC 9-2 67-5, 73-19; ABA Informal 1182 Drinker, Legal Ethics, pp. 87-88; Fla. Commission on Ethics, CEO 75-197 Committeeman Livingston stated the opinion of the committee: A lawyer who is a member of the Florida legislature asks: Would a prohibited conflict of interest exist if a state legislator, or his law firm, were retained or employed in the capacity of City Attorney for a Florida municipality, or as counsel for a special purpose or special tax district? The Committee majority answers that it is permissible for the lawyer to be a member of the Florida legislature while he or his law partner is a city attorney or counsel for a special purpose or special tax district, but that it would be impermissible for him to (a) vote on or participate in matters directly or significantly related to the interests of the city or district or (b) fail to disclose the relationships to all concerned, or (c) make use of his public office as a means for private gain, directly or indirectly. With this opinion, we enter into agreement with Opinion CEO 75-197 of the Florida Commission on Ethics on this question. The statutory Code of Ethics for Public Officers and Employees (Florida Statutes §112.313(7)), as interpreted by the Florida Commission on Ethics (Florida Commission on Ethics, CEO 75-197), carves out an exception for the practice which Opinion 73-19 of this Committee prohibited absent the lawyer’s nonparticipation in legislative matters involving the two public bodies. On the other hand, the Code of Professional Responsibility, which this Committee is charged to interpret, does not specifically carve out an exception for this practice. Our task has thus been more difficult, but we believe such an exception, subject to the foregoing qualifications, to be implicitly permitted and not proscribed by the Code of Professional Responsibility. We do not consider our present opinion to be in conflict with Opinion 73-19, which, while finding a conflict of interest to exist when a lawyer-legislator represents public bodies created by the legislature, specifically declined to address the question under circumstances involving the lawyer declining to participate in matters involving the public bodies which he or his firm represents. We, accordingly, also concur with ABA Informal Opinion 1182 which finds that relevant provisions of Canon 8 of the Code of Professional Responsibility do not establish a blanket prohibition against the type of conduct which is the subject of this inquiry, subject to the types of qualifications referred to as (a), (b) and (c) above. Canon 8 specifically states that “a lawyer should assist in improving the legal system” and indorses the practice of lawyers serving as legislators. No categorical answer can be given as to all possible relevant fact situations in which the lawyer-legislator may find himself. There are potential ethical problems which could arise from such dual employment. It appears though that those potential problems are such that, by careful attention, lawyer-legislators can avoid ethical impropriety. Therefore, we do not find the dual employment described in this inquiry per se improper, as we did, for example, with the problem of a legislator in law partnership with a lobbyist in this Committee’s Opinion 67-5 [since withdrawn]. The task of a lobbyist is necessarily to influence legislation, while the task of a public body, such as a city, and its lawyer is not at all necessarily of that nature. Canon 9 provides that a lawyer should avoid even the appearance of impropriety. EC 8-8 says that “A lawyer who is a public officer should not engage in activities in which his personal and professional interests are or foreseeably may be in conflict with his official duties.” See also DR 8-101. EC 9-2 says that “when explicit ethical guidance does not exist a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.” Accordingly, we add the caveat that in case of doubt as to whether the lawyer’s participation in a legislative matter has a direct or significant relationship to the interests of the public body which he or his firm represents, all such doubts should be resolved against the lawyer’s participation in any way in that matter. See also Drinker, Legal Ethics, pp. 87-88.