Commission on Ethics says state law does not bar legislator from representing client before Board of Bar Examiners

The Florida Commission on Ethics on Dec. 18 adopted a draft advisory opinion finding that a state law ban on in‑office representation will not bar a state representative from representing a client before the Florida Board of Bar Examiners in the circumstances presented.

Staff attorney Amelia Naomi told the commission that Article II, Section 8(e) of the Florida Constitution generally prohibits a legislator from "personally represent[ing] another person or entity for compensation during term of office before any state agency other than judicial tribunals." Naomi said the Board of Bar Examiners meets the statutory definition of a state agency but concluded it does not qualify as a "judicial tribunal" in the sense required to trigger the constitutional exemption for all of the board’s functions.

Naomi summarized the Florida Supreme Court’s Meyers v. Hawkins predominant‑characteristics test, which asks whether an agency’s responsibilities are, for the most part, judicial in nature — adversary proceedings, impartial decision‑makers, enforceable final orders and identifiable appellate review. She said some board functions (character and fitness hearings) have those features, but many others (administering and scoring the bar exam) do not, so the board does not possess judicial‑tribunal status "for all or virtually all of its activities." Naomi recommended applying section 112.316 of the Florida Statutes to avoid a "mechanical" application of the Meyers test that would produce an "impractical" result and needlessly bar the representative from employment opportunities where there is no realistic risk of the harm the constitutional ban intends to prevent.

Representative Fabricio, the requester, told the commission he agreed with the staff analysis. After discussion, the commission moved to adopt the draft opinion. Miss Westberry called the roll and each voting commissioner recorded a "yes." The motion passed.

The adopted opinion, as presented to the commission, concludes that under the specific facts supplied the constitutional prohibition in Article II, Section 8(e) will not prevent Representative Fabricio from representing a client before the Board of Bar Examiners. The commission's action was limited to the facts provided in the request and to the statutes and case law the staff applied.

The commission’s opinion is legally binding as to the conduct at issue for the requester, but its applicability to other situations will depend on the precise facts and any subsequent litigation or statutory change. The commission did not identify additional follow‑up steps at the meeting.

The commission adopted the opinion by roll‑call vote and recorded the motion as passing. The requestor and staff were present during the deliberation.