CEO 74-69 -- November 25, 1974

CONFLICT OF INTEREST

DETERMINATION AS TO CONFLICT OF INTEREST BETWEEN ATTORNEY AS HEARING EXAMINER AND POSITION IN FIRM

To: Richard M. Robinson, Attorney, Orlando

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

As a part-time hearing examiner for the Florida Real Estate Commission, Mr. Robinson is a public officer within the definition of s. 112.312(7)(c), F. S., as amended by Ch. 74-177, Laws of Florida, and is thereby subject to all applicable provisions of the Code of Ethics. Notwithstanding the conflict of interest provisions of s. 112.313(5), F. S., Mr. Robinson does not violate the Code of Ethics when his law firm represents real estate brokers in nonagency-related matters. See CEO 74-58. While Mr. Robinson's situation could lead to a recurring conflict of influence, at present the situation is remote from the category of prohibited employment. Guided by s. 112.314(2), F. S., and the Administrative Procedure Act (s. 120.71, F. S., created by Ch. 74-310, Laws of Florida), Mr. Robinson can determine when his disclosure or disqualification is necessitated in order that clients before the Real Estate Commission receive unbiased hearings. In filing CE Form 2, the public officer must list the name of the client represented before an agency by the officer or any of his associates or partners. Section 112.3145, F. S. The attorney- client privilege does not attach to the fact of employment nor the identity of the client.

QUESTIONS:

1. Does s. 112.313(5), F. S., as amended by Ch. 74-177, Laws of Florida, prohibit my law firm from representing real estate brokers and salesmen in nonagency-regulated matters while I am a hearing examiner for the Florida Real Estate Commission?

2. Must I disclose the name of firm clients under the requirements of s. 112.3145, F. S., as amended by Ch. 74-177, Laws of Florida?

Question 1 is answered in the negative.

As related in your letter of inquiry, you are presently serving as a part-time hearing examiner for the Florida Real Estate Commission. In this capacity you are a public officer within the definition of s. 112.312(7)(c), F. S. Therefore, you are subject to all provisions of the Code of Ethics which apply to public officers. Part III, Ch. 112, F. S., as amended by Ch. 74-177, supra.

Under provisions of s. 112.313(5), supra:

No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee nor shall an officer or employee of an agency accept other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties.

The question which the commission must decide is whether the representation made by your firm, even though in nonagency-regulated matters, will impede you in the discharge of your public duties. Specifically, will the relationship you establish with your client, even though in nonregulated areas, improperly influence your decisions as a hearing examiner?

In a previous opinion of this commission we concluded that the subjective portion of s. 112.313(5), supra, that is, the portion dealing with performance and discharge of an officer's official duties, was applicable only to those situations where such employment by its very nature would present a constant or recurring conflict of interest between the official's private interests and public duties. See CEO 74-58. In the instant case we are not convinced that the representation of real estate brokers in nonagency-regulated matters is such an employment as to amount to a conflict of interest per se. Although we recognize the possibilities for influence in such a relationship, we feel that, under the circumstances as you have described them, they are too indirect and remote to fall within the category of prohibited employment in s. 112.313(5), F. S. Furthermore, we feel that if and when a conflict arises, you will be duty bound to make a full disclosure of it under another provision of the Code of Ethics which states:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.314(2), F. S.]

In this section we believe the Legislature has provided for disclosure in lieu of prohibiting the business relationship which may lead to the conflict. Thus, although a disclosure or abstention may occasionally be necessary, based upon facts solely within your knowledge, the relationship itself is not prohibited.

We would also call your attention to the portions of the revised Administrative Procedure Act set forth below which will be effective January 1, 1975, governing disqualification to serve in an agency proceeding:

120.71 Disqualification of agency personnel.

(1) Any individual serving alone or with others as an agency head shall be disqualified from serving in an agency proceeding for bias, prejudice, interest or other causes for which a judge may be recused. If the disqualified individual holds his position by appointment, the appointing power may appoint a substitute to serve in the matter from which the individual is disqualified. If the individual is an elected official, the Governor may appoint a substitute to serve in the matter from which the individual is disqualified.

(2) Any agency action taken by a duly appointed substitute for a disqualified individual shall be as conclusive and effective as if agency action had been taken by the agency as it was constituted prior to any substitution. [Section 120.71, F. S., created by Ch. 74-310, Laws of Florida.]

In light of these provisions and their cumulative protective effect, we conclude that, under the circumstances as stated by you, the prohibitions of s. 112.313(5), supra, are not presently applicable.

Question 2 is answered in the affirmative.

Section 112.3145(1)(c), supra, specifically requires that in instances of representation before agencies, the public officer shall on a quarterly disclosure statement, CE Form 2, list "the agencies before which he appears, and the name of the client whom he represented." Please note that representation as defined in this section includes any representation by a public officer or any partner or associate of the professional firm of which he is a member and of which he has knowledge. Section 112.3145(7)(c), supra. There is no breach of your ethical obligation of confidentiality to your client, since the attorney-client privilege does not attach to the fact of employment nor the identity of the client. Silverman v. Turner, 188 So.2d 354 (3 D.C.A. Fla., 1966); see also, McCormick Evidence s. 90 (2nd ed. 1972). Therefore, disclosure of the client's name must be made as required by s. 112.3145, supra.