dissenting.
I must respectfully dissent. The majority has applied the law of trusts to the broad Georgia constitutional policy statement which is in fact a simple restatement of the old proposition that a public office is a public trust. In my view such an application requires mental gymnastics and strained reasoning.
The word “trustee” is capable of more than one definition. The use of the word in a “technical or legal sense” and the use of the word in its broader and looser context has been distinguished by legal authorities. See 89 CJS Trusts, § 3. The constitutional provision refers to public officers as “trustees and servants.” The majority would hold that this use of the word “trustee” was intended by the drafters of the constitution to have been in the technical and legal sense. I could not so find. I cannot believe the framers of the Constitution intended this provision to cause all office holders to be caught up in the myriad rules of trust law. I believe the majority’s imposition of a technical prohibition creates dangers more serious than the perceived ills sought to be cured.
For more than two hundred years, the State of Georgia has benefited by the existence of a citizen legislature. Historically the source of governmental power has been the people. It was the people who allowed the state to act as a transformer through which power flowed to the national government. Even though the central government has not always remained close to its source of power, the people of this state have jealously guarded the right to maintain a government which is near to its source. One of the effective means of holding the government close to the people has been the insistence on a citizen legislature as distinguished from a professional legislature.
This country has experienced its brightest hours when citizens acting as part time servants have moved to protect our rights. The opinion of the majority infers that there is something inherently bad about part time public servants and inherently good about full time public servants. History does not bear out this proposition. As an example: Part time soldiers who were full time citizens fired the shots heard around the world at Lexington and raised the flag at Mt. *551Suribachi. Part time public servants risked their lives by signing the Declaration of Independence. Full time professionals commanded the troops at My Lai and directed the burglary at the Watergate.
I fear that the far reaching holding of the majority renders virtually impossible the service of full time citizens as part time public servants. In making this statement we must not overlook the fact that the prohibition set down by the majority is not limited to lawyers nor is it limited to legislators. Its effect can be nothing less than the creation of a special breed of persons ... a governmental elite, removed by law from the daily problems and experiences of the great mass of the people. Thus by technicality they are deprived of the experiences which best qualify them to serve. In providing for this breed, the state must then decide if it is willing to compensate them so that competent persons will enter into this undertaking. If it is not, the positions may well be filled by those who lack the qualifications or perhaps the integrity which the public deserves.
The majority found no violation of the Code of Professional Responsibility and looked only to the law of trusts to support its holding. I agree with the majority that since a legislator represents the people and not the government or its agencies there is no conflict of interest arising from dual representation. Unquestionably as a servant of the electorate a legislator may not charge a fee for fulfilling the duties of his office. However, I do not believe that a legislator who charges a fee for services or goods that are outside the scope of his official duties is breaching a trust or a duty to his principal. Since there is no dual representation in this case, I see no difference in being employed by a member of the electorate for representation against a state agency and being employed by a member of the electorate for representation against a nongovernmental entity. In either case a direct conflict of interest may arise which requires disqualification by the courts, but unless a conflict is present, the clients are entitled to the attorney of their choice.
The conclusion that conflicts of interest can be dealt with as they arise is supported by the cases relied upon in the majority opinion. In each case the financial position of the official involved was directly affected by the exercise of his official judgment. There is no such conflict of interest in the present case.
In this case we have the opportunity to apply a strained interpretation of the law of trusts to public officials or to apply reason. In my judgment, reason dictates that we continue with a legislature close to the people and that we punish wrongdoing when it occurs. Mechanisms for punishment of official wrongdoing and preventing conflicts of interest are available and should be utilized in *552appropriate cases. In the absence of such a showing, I would not disqualify a lawyer legislator. And I therefore dissent.