Ethics opinion deals with representing county commissioners before the Ethics Commission.The Board of Governors has issued Proposed Advisory Opinion 77-30 (Reconsideration re·con·sid·er v. re·con·sid·ered, re·con·sid·er·ing, re·con·sid·ers v.tr. 1. To consider again, especially with intent to alter or modify a previous decision. 2. ) reprinted below. Pursuant to Rule 6(d) and (e) of The Florida Bar The Florida Bar is the mandatory state bar association for the state of Florida. It is the third largest such bar association in the United States. Its duties include the regulation and discipline of attorneys. Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The board will consider any comments received at a meeting to be held on September 29 in Ponte Vedra. Comments must contain the proposed advisory opinion number and clearly state the issues for the board to consider. A written argument may be included explaining why the Florida Bar member believes the board's opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Elizabeth Thoms Clark (nee Carswell) was born 22 June 1918 near Newcastle. She wanted to be a writer and her first play for an adult audience was a school play, Cinderella in French. Based in Glasgow, she wrote poetry. Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication. PROPOSED ADVISORY OPINION 77-30 (Reconsideration) (July 28, 2006) 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 professional ethics, n the rules governing the conduct, transactions, and relationships within a profession and among its publics. professional ethics liability, n 1. Committee gave its opinion on the following circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact. 2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or :
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 Appearance of impropriety is a term often used in reference to a situation whose ethics is deemed questionable. It means that any layperson, without knowledge of the facts, would assume that something he/she saw or heard was inappropriate or a violation of a rule/regulation. ." The committee's opinion was based on the disciplinary rules Precepts, such as the Code of Professional Responsibility, that proscribe an attorney from taking certain actions in the Practice of Law. Proceedings can be instituted to disbar an attorney who violates 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 dil·i·gent adj. Marked by persevering, painstaking effort. See Synonyms at busy. [Middle English, from Old French, from Latin d representation to each affected client; (2) the representation is not prohibited pro·hib·it tr.v. pro·hib·it·ed, pro·hib·it·ing, pro·hib·its 1. To forbid by authority: Smoking is prohibited in most theaters. See Synonyms at forbid. 2. 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 A general term for a court, or the seat of a judge. In Roman Law, the term applied to an elevated seat occupied by the chief judicial magistrate when he heard causes. tribunal n. ; 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 A law, statute, or regulation enacted by a Municipal Corporation. An ordinance is a law passed by a municipal government. A municipality, such as a city, town, village, or borough, is a political subdivision of a state within which a municipal corporation has been or charter or by contract with the county. Florida statutes The Florida Statutes are the codified, statutory laws of the state of Florida. The laws are approved by the Florida Legislature, and signed into law by the Governor of Florida. also require particular governmental entities to provide representation to individual constituents in certain circumstances See, e.g., Florida Statutes [subsection subsection Noun any of the smaller parts into which a section may be divided Noun 1. subsection - a section of a section; a part of a part; i.e. ] 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 some conflicts involving individual county commissioners may be waived by both the individual commissioner and the county. For example, if a frivolous Of minimal importance; legally worthless. A frivolous suit is one without any legal merit. In some cases, such an action might be brought in bad faith for the purpose of harrassing the defendant. 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. |
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