CEO 74-55 -- November 15, 1974

DISCLOSURE OF REPRESENTATIONS

DISCLOSURE REQUIREMENT OF A PUBLIC OFFICER IN AN "OF COUNSEL" RELATIONSHIP WITH A LAW FIRM

To: LeRoy Collins, Attorney, Tallahassee

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

The term "member," as used in s. 112.3145(1)(c), F. S., as amended by Ch. 74-177, Laws of Florida, includes partners and associates. "Associates" are also within the definition of "member" as implied in s. 112.3145(1)(c), supra, and are further bound by financial interest common to the firm. However, the "of counsel" relationship in the legal profession takes several forms, but most exclude the status of firm membership. Former Governor Collins, in his of-counsel relationship, has no ownership interest nor partnership status in the law firm he serves. Neither is he an associate of the firm; there is no control over his actions or sharing of books, records, etc. Governor Collins thereby fails to satisfy the "member" status of s. 112.3145(1)(c), and is not required to disclose appearances by members of the law firm to which he stands "of counsel." He must, however, as a public officer, disclose his own applicable representations. Your question is answered in the negative.

QUESTION:

Must I, as a public officer, list on CE Form 2, representations before agencies, those representations made by members of a law firm of which I am neither a partner nor associate, but with which I have an "of counsel" relationship?

Section 112.3145(1)(c), F. S., as created by Ch. 74-177, Laws of Florida, requires in part that:

Any public officer or candidate who represents another before his own agency or any agency at the same level of government as his own agency, except in ministerial matters, for a fee or commission shall list the agencies before which he appears, and the name of the client whom he represented, in a quarterly report subsequent to such appearance. Representation before any agency shall be deemed to include representation by such public officer or candidate, or any partner or associate of the professional firm of which he is a member and of which he has knowledge. (Emphasis supplied.)

In order to assess what representations must be disclosed by an individual having an "of counsel" relationship with a law firm, we must initially determine whether a lawyer designated as "of counsel" is a "member" of that law firm.

It is our view that the term "member" as contemplated by s. 112.3145(1)(c), supra, is meant to include the partners and associates of a professional firm. In addition to the specific mention of these relationships in the above quoted section, this interpretation is borne out by the fact that the terms "partner" and "member" are used interchangeably in Ch. 620, F. S., dealing with partnerships. For example, s. 620.645(7), F. S., states that: "No person can become a member of a partnership without the consent of all partners." (Emphasis supplied.)

That associates should be considered within the "member" definition is implicit in s. 112.3145(1)(c), supra. Furthermore, an associate of a law firm is an employee of that firm, thus serving in a master-servant relationship subject to control by his employer with respect to the performance of his duties. Due to this employee relationship, there is a common financial interest. It is just such a commonality of interest that might create a conflict with the performance of one's public duties and one's private interest. This conflict or possibility of conflict is what s. 112.3145(1)(c), supra, seeks to control through the disclosure requirement.

The "of counsel" relationship, as used in the legal profession, is vague and may take several forms. One limitation which is present in most "of counsel" relationships is that an individual so designated is not a partner or associate of the law firm. As stated in Ethics Opinion 74-54 of the Professional Ethics Committee of the Florida Bar: ". . . this term of counsel is hardly one of precision, but most past and present usages of the term in Florida seem to exclude the status of firm membership." We note in observing the elements of your particular of-counsel relationship that you are not a partner and have no ownership interest in the firm of Ervin, Varn, Jacobs & Odom. Nor can you be said to be an associate of this firm since they exercise no control over your actions or your clients and you have no access to their books, records, or files. Neither do the members of the firm have access to your books, records, or files.

We must conclude, based upon the foregoing, that, as your relationship with the law firm presently exists, you fail to qualify as a "member" of the firm and that representations before agencies made by members of the law firm of which you are "of counsel" need not be listed on CE Form 2. However, representations made by you personally must be listed as required by s. 112.3145(1)(c), supra.

Finally, we point out that the "of counsel" relationship may vary greatly from firm to firm and from time to time within a single firm. This opinion is therefore limited to your particular "of counsel" relationship at this time.