How are conflicts of interest involving government attorneys decided in Tennessee, and what happened to the rule on prosecutors defending criminal cases?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
This short opinion addressed how conflicts of interest involving government attorneys are analyzed. It stated that, in all matters involving governmental interests and differing interests except for the question of district attorneys' and state prosecutors' ability to represent criminal defendants, whether a conflict of interest exists is a factual question to be examined and determined on a case-by-case basis.
The opinion's operative action was to modify the Board's earlier Opinion 86-F-107(a) to exempt the question of district attorneys, assistant district attorneys, and other state prosecutors representing criminal defendants. The opinion explained that this carved-out conflicts question is addressed in Formal Ethics Opinion 2002-F-146, issued the same day. It stated that all other provisions of Opinion 86-F-107(a) remain in effect.
Currency note
This opinion was issued in 2002, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility on which the underlying opinions relied. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: How are government-attorney conflicts decided in Tennessee under this opinion?
A: Per the opinion, in matters involving governmental and differing interests (other than the prosecutor-defense question), whether a conflict exists is a factual determination made case-by-case.
Q: What did this opinion change about Opinion 86-F-107(a)?
A: It modified 86-F-107(a) to remove the question of district attorneys, assistant district attorneys, and other state prosecutors representing criminal defendants, which is instead addressed in Opinion 2002-F-146; all other provisions of 86-F-107(a) remain in effect.
Background and rules framework
The opinion addressed conflicts involving "governmental interests and differing interests," a framing drawn from the former Code's conflict provisions (DR 5-105, on declining or continuing multiple employment that involves differing interests). The modern analogs are RPC 1.7 (Model Rule 1.7) on concurrent conflicts and RPC 1.11 (Model Rule 1.11) on conflicts for former and current government officers and employees. It modified Opinion 86-F-107(a) and pointed to Opinion 2002-F-146 for the prosecutor-defense question.
Citations and references
Rules of Professional Conduct (former Code):
- DR 5-105 (declining or continuing employment involving differing interests). Modern analogs: Model Rule 1.7 / Tennessee RPC 1.7; Model Rule 1.11 / Tennessee RPC 1.11
Other opinions cited:
- Tennessee Formal Ethics Opinion 86-F-107(a) (modified) and Opinion 2002-F-146 (prosecutor representation of criminal defendants)
See also
- Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case (the opinion this one modifies)
- Tennessee Op. 2002-F-146: Part-Time Prosecutors Defending Criminal Cases
- Tennessee Op. 2012-F-155: District Attorneys and Expungement Petitions
Source
- Landing page: https://www.tbpr.org/ethic_opinions/2002-f-107b
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
2002-F-107(b) - Governmental Attorneys
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 2002-F-107(b)
In all matters involving governmental interests and differing interests except for the question of district attorneys’ and state prosecutors’ ability to represent criminal defendants, the question of a conflict of interest is a factual one to be examined and determined on a case-by-case basis.
The Board hereby modifies Formal Ethics Opinion 86-F-107(a) to exempt therefrom the question of district attorneys, assistant district attorneys and other state prosecutors’ representation of criminal defendants. This conflicts of interest question is addressed in Formal Ethics Opinion 2002-F-146. All other provisions of Formal Opinion 86-F-107(a) remain in effect.
This 8th day of March, 2002.
THE ETHICS COMMITTEE:
Kim A. McMillan, Chair
Michelle A. Benjamn
Jack W. Robinson, Jr.
APPROVED AND ADOPTED BY THE BOARD
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