CEO 77-162 -- October 24, 1977

QUARTERLY CLIENT DISCLOSURE

NECESSITY OF REPORTING REPRESENTATIONS OF CORPORATION OF WHICH PUBLIC OFFICER IS GENERAL COUNSEL AND CORPORATE OFFICER

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.3145(4), F. S., relating to quarterly disclosure of clients represented before agencies, does not require a local officer to report legal representations of a company before local agencies where he is paid an annual salary by the company to serve as its general counsel and as an officer. For purposes of the quarterly client disclosure, a distinction is recognized between representations made as an employee and representations made as an independent professional or member of a professional firm. Although the statutory provision is ambiguous in this respect, the use of the phrase "fee or commission" rather than the more general term "compensation," and the language requiring the reporting of representations made by "any partner or associate of the professional firm of which the official is a member," indicate that the provision was directed at representations by a member of a profession acting as an independent contractor. Further, the statement of financial interests requires disclosure of all sources of income in excess of 5 percent of one's gross income, and s. 112.313(9) requires disclosure of any corporate office held. Therefore, the fact that a public officer has substantial private financial interest in his employer/client, and the resulting potentiality for conflicts of interest, will be disclosed to the public through those forms of disclosure.

QUESTION:

Does quarterly client disclosure require a local officer to report legal representations of a company before local agencies where he is paid an annual salary by the company to serve as its general counsel and as an officer of the company?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advise that you are a member of the Planning Commission of the City of North Miami. You also advise that you are paid an annual salary by a corporation to serve as an officer and as its general counsel. Your question relates to whether the quarterly client disclosure requirements of s. 112.3145(4), F. S. 1975, contemplate disclosure of your representations of that company, where that representation is not done by you in the capacity of a professional firm or in association with a firm.

Section 112.3145(4), F. S. 1975, provides in relevant part:

Each state officer, local officer, and specified employee shall file a quarterly report of the names of clients represented for a fee or commission, except for appearances in ministerial matters, before agencies at his level of government. For the purposes of this part, agencies of government shall be classified as state level agencies or agencies below state level. The report shall be filed only when a reportable representation is made during the calendar quarter and shall be filed no later than 15 days after the last day of the quarter. Representation before any agency shall be deemed to include representation by such officer or specified employee or by any partner or associate of the professional firm of which he is a member and of which he has actual knowledge.

We are of the opinion that when you give legal representation to the corporation, the corporation is your "client" for purposes of this provision. Black's Law Dictionary gives the following definition of "client":

A person who employs or retains an attorney, or counsellor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business. McCreary v. Hoopes, 25 Miss. 428; McFarland v. Crary, 6 Wend., N.Y., 297; Cross v. Riggins, 50 Mo. 335. It should include one who disclosed confidential matters to attorney while seeking professional aid, whether attorney was employed or not. Sitton v. Peyree, 117 Or. 107, 241 P. 62, 64. [Black's Law Dictionary 321 (Rev. 4th ed. 1968).]

Clearly, you are employed by the corporation to act for it in any legal business it may have.

However, for purposes of quarterly client disclosure we recognize a distinction between representations made as an employee and representations made as an independent professional or member of a professional firm. The statutory provision is ambiguous in this respect, but the use of the phrase "fee or commission," rather than the general term "compensation," and the language regarding "any partner or associate of the professional firm of which he is a member" indicate that the provision was directed at representations made by one who is not an employee of the client. Thus, representations by a member of a profession acting as an independent contractor or whose firm is acting as an independent contractor would fall within the provision. In this regard we note that the statement of financial interests requires the disclosure of all sources of income in excess of 5 percent of one's gross income. Section 112.3145(3)(a), F. S. 1975. Therefore, the fact that a public officer has a substantial private financial interest in his employer/client and the resulting potentiality for conflicts of interest will be disclosed to the public. In addition, it appears that the fact that you are an officer of the corporation should also appear on CE Form 3, Disclosure of Specified Business Interests. Section 112.313(9), F. S. 1975.

Accordingly, we find that quarterly client disclosure does not require a local officer to report legal representations of a company before local agencies where he is paid an annual salary by the company to serve as its general counsel and as an officer of the company.