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Opinion 77-30 (Reconsidered)

OPINION 77-30 (Reconsideration)
September 29, 2006
Advisory ethics opinions are not binding.
Whether a conflict of interest involving representation of an individual county commissioner
before the Florida Commission on Ethics by a county attorney may be waived depends on the
individual circumstances of the matter. In cases where the conflict may be waived, both the
individual commissioner and the county must give informed consent, confirmed in writing, and
consent on behalf of the county must be given by someone other than the individual
commissioner to be represented.
Florida Statutes:

4-1.7, 4-1.13(e)
§§ 111.065 and 111.07

The Florida Bar Board of Governors has revised Florida Ethics Opinion 77-30 to clarify
its views on conflicts involving a county attorney’s representation of a county commissioner
charged with ethics violations before the Florida Commission on Ethics. In the 1978 opinion,
the Professional Ethics Committee gave its opinion on the following circumstances:
A county commissioner is charged before the ethics commission with misuse of
public office in directing county employees to work on private property during
normal working hours with county road equipment. The subject commissioner
asks the county attorney to represent him as legal counsel. The county attorney is
on contract with the county and engages in the private practice of law in addition
to his work for the county.
The Committee found that the “situation represents an inherent conflict and the
appearance of impropriety.”
The Committee’s opinion was based on the disciplinary rules and ethical canons. Since
the opinion was written, the Rules Regulating The Florida Bar were adopted. Rule 4-1.7 states
as follows:
(a) Representing Adverse Interests. Except as provided in subdivision (b),
a lawyer shall not represent a client if:
(1) the representation of 1 client will be directly adverse to another client;
(2) there is a substantial risk that the representation of 1 or more clients will
be materially limited by the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a conflict of interest under subdivision
(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a position adverse to
another client when the lawyer represents both clients in the same proceeding
before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing or
clearly stated on the record at a hearing.
The Board has heard from both the Florida Commission on Ethics, which has indicated
that individual commissioners are frequently represented by a local government lawyer despite
the opinion’s existence, and from the City, County and Local Government Law Section, which
believes that the opinion is overbroad.
The Board agrees with the City, County and Local Government Law Section that the
opinion may be overbroad, particularly the following statement:
A county attorney represents the county commission, not the individual members
serving on it. He places his responsibility as county attorney in jeopardy when he
accepts an engagement to represent a particular commissioner before the Florida
Ethics Commission.
A county attorney may be required to represent individual commissioners by ordinance or
charter or by contract with the county. Florida statutes also require particular governmental
entities to provide representation to individual constituents in certain circumstances. See, e.g.,
Florida Statutes §§ 111.065 and 111.07. It is a legal and factual question, outside the scope of an
ethics opinion, whether a county attorney is required to represent individual commissioners.
The Board is of the opinion that there are some conflicts involving the representation of
individual county commissioners that may be waived by both the individual commissioner and
the county. For example, if a frivolous ethics complaint is filed against an individual
commissioner and the county attorney can readily determine that the allegations are unfounded,
the county attorney may represent the individual commissioner if both the individual
commissioner and the county give informed consent, confirmed in writing, to the dual
representation. Someone other than the individual commissioner to be represented must give
informed consent on behalf of the county. Rule 4-1.13(e), Rules of Professional Conduct.
Whether a county attorney may represent an individual commissioner in a particular
ethics complaint will depend on the circumstances of the individual situation, and such an
analysis must occur on a case by case basis.