Opinion 77-30 (Reconsidered)
FLORIDA BAR ETHICS OPINION 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. RPC: Opinion: Florida Statutes: 4-1.7, 4-1.13(e) 77-30 §§ 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; or (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.