Opinion 77-15 (Board of Governors)
FLORIDA BAR ETHICS OPINION
BOARD OF GOVERNORS ADVISORY ETHICS OPINION (77-15)
May 13, 1978
On May 13, 1978, the Board of Governors issued the following advisory opinion to supersede
any contrary views expressed in prior opinions of the Professional Ethics Committee (including
Opinion 77-15); to acknowledge the Board’s continuing policy of being open to consider
petitions to modify advisory opinions of the Professional Ethics Committee; and to allay the
concerns of lawyers who feared disciplinary proceedings by reason of Opinion 77-15.
EC 6-13; DR 6-101(A)(3); DR 7-101(A)(2), (3)
ABA Informal 1325
President Troutman stated the opinion of the Board:
A civil action has been brought in the United States District Court for the Northern
District of Florida . . . [parties omitted]. The action challenges Advisory Opinion 77-15 of the
Professional Ethics Committee of The Florida Bar which, in summary, advises against
government-employed members of The Florida Bar joining a labor union composed of lawyer
and nonlawyer employees.
In such action . . . [two lawyers] state that they are members of such a mixed union and
fear that they will be disciplined by The Florida Bar in view of Advisory Opinion 77-15. . . . [A
third lawyer] states that he would join such a union but has not done so because of Advisory
. . . [E]xercising its inherent authority to reserve, rescind or modify any of the Advisory
Opinions of the Professional Ethics Committee of The Florida Bar, the Board promulgates the
following Advisory Ethics Opinion of the Board of Governors of The Florida Bar for the
guidance of members of The Florida Bar in construing the Code of Professional Responsibility
and the Integration Rule of The Florida Bar. This opinion supersedes any contrary view
expressed in prior opinions of the Professional Ethics Committee of The Florida Bar to the extent
inconsistent herewith. Accordingly, the Board of Governors acknowledges its continuing policy
of being open to consider petitions to modify Advisory Opinions of the Professional Ethics
Committee of The Florida Bar.
We do not think Advisory Opinion 77-15 is without merit, and EC 5-13 should be
recognized. That Ethical Consideration provides:
A lawyer should not maintain membership in or be influenced by any
organization of employees that undertakes to prescribe, direct, or suggest when or
how he should fulfill his professional obligations to a person or organization that
employs him as a lawyer. Although it is not necessarily improper for a lawyer
employed by a corporation or similar entity to be a member of an organization of
employees, he should be vigilant to safeguard his fidelity as a lawyer to his
employer, free from outside influences.
However, on the issue of a government lawyer joining a labor union composed of lawyer
and nonlawyer employees, we concur with ABA Informal Opinion 1325 to the extent that it
advises that there is no violation of the Code of Professional Responsibility subjecting the
government lawyer to disciplinary action simply by reason of his joining a union.
At the same time we note certain ethical difficulties which might exist from certain
activities incident to union membership, especially to the extent that the union may on particular
occasions oppose certain positions of management, which is the lawyer’s client. For example, as
pointed out in the foregoing ABA Informal Opinion, such a lawyer belonging to a union may be
considered not unlikely to be confronted, on occasion, with a choice between acquiescing or
assisting in certain union activities and violating certain disciplinary rules, such as, DR
6-101(A)(3), proscribing neglect of a legal matter entrusted to a lawyer, DR 7-101(A)(2),
forbidding a lawyer to intentionally fail to carry out a contract for employment with a client, and
DR 7-101(A)(3), prohibiting a lawyer from intentionally prejudicing or damaging his client
during the course of the professional relationship.
If faced with a choice between following the Code of Professional Responsibility or
following a union’s wishes, it is clear that a government lawyer who is a member of the union
must follow the Code and the Disciplinary Rules thereof as promulgated by the Supreme Court
Therefore, we advise that the above-referenced lawyers are not subject to disciplinary
action on the facts referred to in their foregoing complaint concerning union membership, nor
were they subject to disciplinary action simply by reason of Advisory Opinion 77-15.