Are members of a firm that serves as general counsel to a law enforcement officers association disqualified from practicing criminal defense?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions (including Formal Ethics Opinions 81-F-23 and 83-F-41) revisited this line of guidance. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The Board was asked whether members of a firm that serves as general counsel for the Tennessee Law Enforcement Officers Association are disqualified from practicing criminal law. As general counsel, the firm gives the association general corporate advice, tax advice, compliance advice on governmental regulations, and opinions on the legality of death benefit claims, engaging in a general corporate practice for the association; it does not represent individual officer members.

The Board noted that the Kentucky Supreme Court had recently held that an attorney representing the Fraternal Order of Police in grievances and other civil matters may not practice criminal law in the same jurisdiction, reasoning that energetic representation of criminal defendants often requires vigorous cross-examination of police officers aimed at discrediting their testimony, creating a conflict that endangers the zealous representation Canon 7 requires. The Board also referenced Canon 7 (zealous representation) and Canon 9 (avoiding the appearance of professional impropriety).

While agreeing with the Kentucky court's reasoning generally, the Board concluded it did not apply to the facts presented, and saw no reason the firm's members could not practice criminal law consistent with the Code of Professional Responsibility, because the firm's role was limited to the association's corporate matters rather than representing individual officers. The Board added a caveat: if a situation developed where a particular criminal defendant representation might alienate the association's officers or directors, or jeopardize the firm's corporate representation, the Kentucky rule would then apply.

Common questions

Q: Does serving as general counsel to a police association automatically bar a firm from criminal defense work?

A: No. The Board states "we do not believe that it is applicable to the facts here presented or that there is any reason why the firm members could not engage in the practice of criminal law in compliance with the Code of Professional Responsibility."

Q: What distinguished this case from the Kentucky rule barring dual representation?

A: The firm's role was limited to the association's own corporate, tax, and regulatory matters, not representing individual officers, since "it does not engage in the representation of individual officer members."

Q: Could this same firm later be barred from a specific criminal defense case?

A: Yes. The Board cautioned "if a situation should develop where such criminal defendant representation might alienate the officers or directors of the Association, or jeopardize the corporate representation, then and in such event the Kentucky Supreme Court rule would apply."

Background and rules framework

The opinion applied Canon 7 (zealous representation) and Canon 9 (avoiding the appearance of professional impropriety) of the Tennessee Code of Professional Responsibility, distinguishing the Kentucky Supreme Court's rule in In re: Advisory Opinion of Kentucky Bar Association. The modern correlate is Model Rule 1.7 (conflicts of interest), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Canon 7 (zealous representation) and Canon 9 (avoiding the appearance of professional impropriety), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest), modern correlate

Cases:

• In re: Advisory Opinion of Kentucky Bar Association, 613 S.W.2d 416 (Ky. 1981), conflict between representing law enforcement and criminal defendants

See also

• Tenn. Ethics Op. 81-F-23: City Attorney Conflict
• Tenn. Ethics Op. 83-F-41: County Attorney Conflicts

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-18

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

81-F-18 - Representation of Law Enforcement Association

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-18

Pursuant to Section 26 of Rule 9 of the Rules of the Supreme Court, the Board has been asked for a formal opinion as to whether the members of a firm which serves as general counsel for the Tennessee Law Enforcement Officers Association are disqualified from engaging in the practice of criminal law. As general counsel for the Association, the firm gives general corporate advice, tax advice, passes on compliance with governmental regulations, passes on the legality of death benefit claims, and engages in a general corporate practice insofar as the Association is concerned. It does not engage in the representation of individual officer members.

The Supreme Court of Kentucky recently held that an attorney who represents the Fraternal Order of Police in grievances and other civil matters may not practice criminal law in the same jurisdiction. In re: Advisory Opinion of Kentucky Bar Association, 613 S. W. (2d) 416. The Court went on to say:

It is fundamental that energetic representation of criminal defendants often entails vigorous cross-examination of police officers with an eye to discrediting their testimony. Presented with the dilemma of alienating a group of police officers on the one hand and providing a criminal defendant with the most energetic possible defense on the other, the attorney faces a conflict which seriously endangers his ability to zealously represent his client as is required by Canon 7 of the Code of Professional Responsibility.

Canon 7 of Rule 8 of the Supreme Court requires that a lawyer should represent a client zealously within the bounds of the law, and Canon 9 admonishes that a lawyer should avoid even the appearance of professional impropriety.

While we agree with the Kentucky Supreme Court's opinion, we do not believe that it is applicable to the facts here presented or that there is any reason why the firm members could not engage in the practice of criminal law in compliance with the Code of Professional Responsibility.

If a situation should develop where such criminal defendant representation might alienate the officers or directors of the Association, or jeopardize the corporate representation, then and in such event the Kentucky Supreme Court rule would apply.

This 26th day of August, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD