CEO 84-6 -- January 26, 1984

SUNSHINE AMENDMENT

STATE REPRESENTATIVE PARTICIPATING AS ATTORNEY IN LITIGATION AND SETTLEMENT NEGOTIATIONS IN LAWSUIT AGAINST STATE AGENCY

To: (Name withheld at the person's request.)

SUMMARY:

Article II, Section 8(e), Florida Constitution, would not prohibit a State Representative who is an attorney from personally representing a client in litigation and settlement negotiations involved in a lawsuit in Federal court against a State agency. In the view of the Commission, Article II, Section 8(e), was not intended to prohibit a State legislator from representing a client in a lawsuit in court against a State agency. Therefore, it follows that a State legislator should not be precluded from personally engaging in those activities which are attendant to the lawsuit, such as communications with opposing counsel regarding the conduct of the lawsuit and settlement negotiations.

QUESTION:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a State Representative and attorney, from personally representing a client in litigation and settlement negotiations involved in a lawsuit in federal court against a state agency?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the House of Representatives and an attorney. You also advise that your law firm is involved in a lawsuit against the Governor and the Division of Retirement of the Department of Administration in behalf of a class of members of the Florida Retirement System. The plaintiff's complaint asserts that the Retirement System has discriminated unlawfully against members of the plaintiff's class on the basis of sex. Finally, you advise that your participation in the prosecution of the lawsuit potentially would include all aspects of litigation and settlement negotiations with the attorney of record or other representatives and employees of the defendants.

Article II, Section 8(e), Florida Constitution, provides in relevant part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

This provision of the "Sunshine Amendment" is framed in terms which limit the forum in which, and the circumstances under which, a State legislator may represent another person or entity. That is, a State legislator cannot represent for compensation any person or entity other than himself if the decision-making person or body before whom the representation is made is any State agency other than a judicial tribunal.

The prohibition does not address (or limit) the party or parties who would oppose the person or entity represented by the legislator. Therefore, we conclude that a State legislator may personally represent any person or entity in a lawsuit in court against any other person or entity, including a State agency.

Having concluded that this provision of the Constitution permits a State legislator to personally represent a client in a lawsuit against a State agency before a court, we believe that all those activities which naturally are attendant to representing a client before a court also must be permitted. We recognize that in representing a client in a lawsuit, an attorney must communicate with opposing counsel regarding the conduct of the lawsuit. Therefore, we believe that such communications would not be prohibited. Similarly, settlement negotiations in behalf of the client also are a common feature of the representation of any client in a lawsuit.

For these reasons, we are of the opinion that an attorney is not representing a client before a State agency when engaging in those communications which naturally result from a lawsuit in court against the agency. In essence, the agency has no proceedings before it which affect the legislator's client; the proceedings are before the court, a judicial tribunal.

We recognize that in these situations a legislator is in a position to potentially influence agency decisions, or at least in a position giving the appearance of having an influence over the agency's decisions. However, the plain language adopted by the people as Article II, Section 8(e), permits members of the Legislature to represent clients in lawsuits against State agencies. In addition, there are other restrictions which we feel safeguard the public's interest here. As an attorney, you are bound by the requirement of the Code of Professional Responsibility to communicate only with the lawyer(s) representing the State agency, unless there is prior consent or authorization by law. Further, we note that settlements of class actions must be approved by the court under both the Federal and Florida Rules of Court. Rule 23(e), Fed. R. Civ. P., and Rule 1.220(e), Fla. R. Civ. P.

Accordingly, we are of the opinion that you are not prohibited by Article II, Section 8(e), Florida Constitution, from personally participating as an attorney in litigation and settlement negotiations in this lawsuit against the State.