CEO 80-26 -- April 17, 1980

CONFLICT OF INTEREST

CITY ATTORNEY RETAINING INTEREST IN LITIGATION AGAINST CITY; CITY ATTORNEY MEMBER OF LAW FIRM REPRESENTING CLIENT IN SUIT AGAINST CITY

To: Joseph G. Spicola, Jr., City Attorney, Tampa

Prepared by: Phil Claypool

SUMMARY:

A city attorney's retaining a contingency fee interest in a lawsuit against the city would impede the full and faithful discharge of his public duties as city attorney, in violation of s. 112.313(7)(a), F. S., as he would stand to benefit directly in the event the city loses the lawsuit. This conflict could not be remedied by having an assistant city attorney handle the litigation because of the city attorney's authority over his assistants. This prohibited conflict of interest under the Code of Ethics could be avoided, however, by the city attorney's divesting himself of interest in the lawsuit or by the city's contracting with outside legal counsel to represent the city in the particular suit.

Section 112.313(7)(a) also would be violated were a law partner of the city attorney to represent a client against the city. Such representation by a firm in which the city attorney has a partnership interest would impede the full and faithful discharge of his public duties to represent the city in legal matters and to supervise the legal department of the city. There is no provision of the Code of Ethics which would prohibit an assistant city attorney from representing the city before a circuit court judge who is the brother of the city attorney.

QUESTIONS:

1. Does a prohibited conflict of interest exist when I, a city attorney, have retained a contingency fee interest in a lawsuit against the city even though I withdrew from the case when I became city attorney?

2. Does a prohibited conflict of interest exist when a law partner of the city attorney represents a client against the city?

3. Would a prohibited conflict of interest be created were an assistant city attorney to represent the city before a circuit court judge who is the brother of the city attorney?

Question 1 is answered in the affirmative.

In your letter of inquiry you advise that recently you were appointed to the office of City Attorney for the City of Tampa. Prior to that time, you advise, you had performed legal services for the personal representatives of an estate by seeking the return of property to the estate from the city. In that case, the city was represented by an assistant city attorney who presently is handling the appeal of the matter for the city.

You further advise that, after you became city attorney, but while the appeal was pending, you withdrew from your representation of the personal representatives of the estate and transmitted the case to an attorney with whom you share no business interest. However, you have retained an interest in the case to the extent of a claim for prior legal services rendered on a contingency fee basis.

The Code of Ethics for Public Officers and Employees prohibits a public officer from having any employment or contractual relationship "that would impede the full and faithful discharge of his public duties." Section 112.313(7)(a), F. S. In a previous opinion, we advised that this provision would prohibit a city commissioner from being employed as an attorney by a law firm representing clients in suits filed against the city. See CEO 80-12. In CEO 79-37, we advised that this provision would prohibit the Governor's general counsel from continuing his association with a law firm if he or any member of the general counsel's office were to participate in a matter within the Governor's sole authority which involved a client of the law firm.

In our view, your retaining a contingency fee interest in a lawsuit against the city would impede the full and faithful discharge of your public duties as city attorney. You stand to benefit directly in the event that the city which you serve loses the lawsuit. This interest certainly would preclude your representing the city in connection with the appeal. In addition, as expressed in CEO 79-37, we feel that this conflict could not be remedied or avoided by having an assistant city attorney handle the matter because of your authority over the assistant city attorneys.

Accordingly, we find that your contingency fee interest in a lawsuit against the city would impede the full and faithful discharge of your public duties, in violation of s. 112.313(7)(a), F. S. We are of the opinion that this prohibited conflict of interest under the Code of Ethics could be avoided by divesting yourself of the interest in the lawsuit or by the city's contracting with outside legal counsel to represent the city in this particular lawsuit. Please note that we have no authority to interpret the Code of Professional Responsibility for Attorneys; you will have to contact The Florida Bar for an interpretation of your professional ethical responsibilities.

Question 2 also is answered in the affirmative.

In your letter of inquiry you advise that, prior to your becoming city attorney, a law partner filed a lawsuit naming the city, among others, as a defendant. You further advise that you have retained your partnership interest in the law firm since being appointed city attorney.

As referenced in our response to your first question, in CEO 80-12 we advised that a city commissioner was prohibited by s. 112.313(7)(a), F. S., from being employed by a law firm which represents clients in lawsuits against the city. Similarly, we are of the opinion that your partnership interest in a law firm which is representing a client in a lawsuit against the city would impede the full and faithful discharge of your public duties to represent the city in legal matters and to supervise the legal department of the city.

Accordingly, we find that a prohibited conflict of interest is created when you are city attorney while retaining your partnership interest in a law firm which is representing a client in a lawsuit against the city. Again, we ask that you contact The Florida Bar if you wish an opinion concerning the Attorneys' Code of Professional Responsibility.

As to question 3, we have examined the Code of Ethics for Public Officers and Employees and have found no provision which would prohibit an assistant city attorney from representing the city before a circuit court judge who is the brother of the city attorney. We reiterate that we are unable to advise you of your professional responsibilities. We are not authorized to comment upon the applicability of the Code of Judicial Conduct to the circumstances you have described; such an interpretation would have to come from the Judicial Qualifications Commission.