CEO 92-4 -- January 24, 1992
CONFLICT OF INTEREST
STATE SENATOR REPRESENTING CONSTITUENTS
IN LEGAL MATTERS
To: The Honorable Rick Dantzler, State Senator, 13th District, (Winter Haven)
An attorney-legislator is not specifically prohibited by the Code of Ethics for Public Officers and Employees from representing, as an attorney, persons who initially contact him in his capacity as a legislator. However, the legislator is cautioned to be mindful of Section 112.313(6), Florida Statutes, and may wish to continue his practice of referring such cases to other attorneys in other firms. CEO's 75-27 and 91-54 are referenced.
Does the Code of Ethics for Public Officers and Employees prohibit you, a State Senator, from representing or referring to other attorneys in the firm where you practice, clients who initially contacted you in your capacity as a State Senator?
Your question is answered in the negative.
In your letter of inquiry and in subsequent correspondence with our staff, you advise that you are a State Senator and an attorney. You advise further that you are a salaried associate in a law firm and that you do not earn a percentage of the fees for any cases you bring into the firm, but that your year-end bonuses may reflect cases you have brought into the firm. You relate that you often are contacted by constituents who perceive that they need the assistance of a legislator, but occasionally, perhaps several times a month, it turns out that they really need the assistance of an attorney. You advise that it has been your practice to refer these matters to other attorneys outside of the law firm where you are an associate, but you question whether this is appropriate or necessary under the Code of Ethics for Public Officers and Employees.
The question you have posed is not one that is clearly addressed by Chapter 112, Part III, Florida Statutes. The only statutory provision which restricts a legislator-attorney in his representation of clients is Section 112.313(9)(a)3, Florida Statutes, which provides in pertinent part:
No member of the Legislature shall personally represent another person or entity for compensation during his term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit.
This provision prohibits you from representing clients for compensation before State agencies. See CEO 91-54 and the opinions referenced therein for a discussion of the applicability of this statute to a legislator-attorney.
However, nothing in the information you have provided indicates that the typical situation you describe has a legal problem involving a State agency. Instead, you advise that these persons are generally of limited means with various legal problems. The examples you have provided include a person with a cause of action against a building contractor; a person whose drinking water well had been ruined due to excavation work on adjacent property; a person who was being sued in a quiet title action; a person with a child support order entered against him which he was unable to pay; persons with complaints about professional services rendered by other lawyers; persons who believe they have been the victims of job discrimination; and a person involved in a mobile home park landlord-tenant dispute. Moreover, it is your belief that many of these persons may experience difficulty in hiring an attorney to represent them.
In CEO 75-28, we advised a State Representative that a prohibited conflict of interest was not created where the law firm with which he was associated was retained to represent a city. It was the Commission's view then that such employment did not create a continuous or constantly recurring conflict between his private interests and his public duties. The operative language is now contained in Section 112.313(7)(a), Florida Statutes, which provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.
This statute prohibits a public officer or employee from having an employment or contractual relationship with a business entity which is subject to the regulation of, or is doing business with, his agency. It also prohibits the officer or employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between the officer's or employee's private interests and the performance of his public duties.
The first portion of Section 112.313(7)(a), Florida Statutes, in not applicable to the situation you describe because there is no indication that you have any type of employment or contractual relationship with a business entity which is doing business with the Florida Legislature or is subject to its regulation. Although you have indicated that you are consulted by constituents several times a month on matters which ultimately turn out to be legal problems, there is no indication that your employment as an attorney poses a continuing or frequently recurring conflict with your responsibilities as a State Senator. Thus, we are not inclined to view the second portion of Section 112.313(7)(a), Florida Statutes, as prohibiting you from representing constituents in legal matters.
The only other provision of the Code of Ethics which may have any applicability is Section 112.313(6), Florida Statutes, which provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
This provision prohibits a public officer or employee from using or attempting to use his official position to secure a special privilege, benefit, or exemption for himself or others, where his actions are undertaken with a wrongful intent for the purpose of obtaining some benefit resulting from his actions which are inconsistent with the proper performance of public duties.
We are generally reluctant to address this provision in the context of an advisory opinion because it necessitates an examination of intent. However, it is appropriate that we make you aware of this statute and caution you to let it guide your conduct. Thus, if you used your position as a State Senator to solicit and obtain clients for your law practice, and if somehow you acted with a wrongful intent and in a manner which was inconsistent with the proper performance of your public duties, it is conceivable that you could run afoul of Section 112.313(6), Florida Statutes. However, nothing in the information you have submitted indicates that you are in any way soliciting clients or acting with any wrongful intent. Evidently, these persons first contact you in locations other than your law office. After listening to their problems, you conclude that they need the assistance of an attorney, not a lawmaker, and you provide them with the names of other attorneys in the area who may be able to represent them.
While there is no requirement in the Code of Ethics which mandates that you or the other attorneys in the firm where you practice refuse to take these clients, your present method of handling this situation certainly protects you from any allegation of misuse of public position. The practice of referring these cases to lawyers in other firms, even those cases which may generate awards of legal fees, also serves to protect you from any suspicion that you may have acted with any impropriety.
We would recommend that you also contact the Florida Bar as it would be better able to provide you with guidance under its interpretations of the Rules of Professional Conduct applicable to members of the Florida Bar. There may also be rules of conduct applicable to members of the Florida Senate that would be useful as well.
Your question is answered accordingly.