How are conflicts of interest involving government attorneys decided in Tennessee, and what happened to the rule on prosecutors defending criminal cases?

Short answer Formal Ethics Opinion 2002-F-107(b) restated that, in matters involving governmental interests and differing interests, a conflict of interest is a factual question decided case-by-case, and it modified Opinion 86-F-107(a) to remove the question of district attorneys', assistant district attorneys', and other state prosecutors' representation of criminal defendants (now addressed in Opinion 2002-F-146); all other provisions of 86-F-107(a) remain in effect.

Bar

TNBPR

Issued

March 8, 2002

Apply this to your situation

This page answers the general question as of 2002. Ask about yours and see what the current Tennessee Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under Tennessee Supreme Court Rule 9, § 5.4, a formal ethics opinion binds the Board of Professional Responsibility and the person who requested it, and is guidance other lawyers may rely on. Informal opinions from Disciplinary Counsel bind no one. Source.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

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)

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

What do the rules say today, for your facts?

This opinion is from 2002. Ezel checks the current Tennessee Rules of Professional Conduct against your situation and cites the rules it relies on.

Opens in Ezel Pro.

Checks the law as it stands today, not only this page
Cites every source it relies on, so you can verify it
Chat, drafting and research in one workspace