TNBPR December 31, 1981

Can a firm whose member serves as City Attorney defend a person the City Police Department is prosecuting in Criminal Court?

Short answer: No. The opinion concluded it is improper for a firm to defend a person prosecuted by the City Police Department when a firm member serves as City Attorney and is available to advise the police department daily, because the arrangement creates a conflict that endangers zealous representation and the appearance of impropriety it creates cannot be avoided.

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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

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.

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 Opinion 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 Treat this page as historical context, not current guidance.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

A member of a law firm served as City Attorney, and the firm was paid to advise the police department and other departments of the City Manager form of government on a daily basis, whether about a particular case or a general procedure. Even though the firm did not advise on every case, it was always available to the police department and every other city department. The Board was asked whether the firm could defend a person the City Police Department was prosecuting in Criminal Court.

The Board relied on its own Formal Ethics Opinion 81-F-18, which had adopted the reasoning of the Kentucky Supreme Court in In Re: Advisory Opinion of Kentucky Bar Association: energetic representation of criminal defendants often requires vigorous cross-examination of police officers aimed at discrediting their testimony, and an attorney caught between alienating a group of police officers and providing a criminal defendant the most energetic possible defense faces a conflict that seriously endangers the lawyer's ability to zealously represent the client, as Canon 7 requires. The Board also quoted the Kentucky court's further observation that criminal defense work draws intense public scrutiny, that the public demand for professional independence is great, and that Canon 9's admonition to avoid even the appearance of professional impropriety turns on whether any appearance of impropriety exists, not whether actual impropriety exists.

Adopting that reasoning, the Board concluded that the conduct described, a firm member serving as City Attorney and available to the police department daily while the firm defends a person the police department is prosecuting, is improper.

Common questions

Q: Can a lawyer whose firm serves as City Attorney defend a case the City Police Department is prosecuting?

A: No. The opinion "concludes that the conduct proposed in the inquiry is improper," applying its earlier ruling in 81-F-18 and the Kentucky Supreme Court's reasoning it adopted.

Q: Does it matter that the firm does not advise on every single police case?

A: The opinion does not treat that as curing the conflict. It emphasizes that "the firm is always available to the police department and all other departments on a daily basis," which is what triggers the concern, regardless of whether the firm actually advised on the specific matter being defended.

Q: What is the underlying concern with this arrangement?

A: The opinion quotes the Kentucky Supreme Court's reasoning that vigorous cross-examination of police officers "seriously endangers his ability to zealously represent his client" when the attorney also has an ongoing advisory relationship with the police, and that "the point is not whether impropriety exists but that any appearance of impropriety is to be avoided."

Background and rules framework

The opinion applied the Canon 7 (zealous representation) and Canon 9 (avoiding the appearance of impropriety) framework of the Tennessee Code of Professional Responsibility, adopting the reasoning of Formal Ethics Opinion 81-F-18 and the Kentucky Supreme Court's decision in In Re: Advisory Opinion of Kentucky Bar Association. The modern correlate is Model Rule 1.7 (conflicts of interest: current clients), 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; appearance-of-impropriety standard

Other opinions cited:

Tennessee Formal Ethics Opinion 81-F-18: barred criminal defense representation that would alienate or jeopardize a firm's corporate representation of the Law Enforcement Officers Association

Source

Landing page: https://www.tbpr.org/ethic_opinions/81-f-23

Original opinion text

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

81-F-23 - City Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-23

An inquiry has been made concerning the propriety of a City Attorney defending a person being prosecuted in Criminal Court by the City Police Department.

A member of the law firm serves as City Attorney. The firm is paid to advise the police department and other departments of the City Manager form of government on a daily basis. The firm may advise the police department about a particular case, or may advise concerning a general procedure. Even though the firm does not advise on every case, the firm is always available to the police department and all other departments on a daily basis.

Formal Ethics Opinion 81-F-18 adopting the language in the matter of In Re: Advisory Opinion of Kentucky Bar Association, 613 S.W.2d 416 stated:

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.

The Supreme Court of Kentucky in the case cited further stated:

By its very nature, criminal defense is an area of law that is subjected to intense public scrutiny. The public demand for professional independence is great. Canon 9 of the Code states as follows: 'A lawyer should avoid even the appearance of professional impropriety.' -- The point is not whether impropriety exists but that any appearance of impropriety is to be avoided ....

This committee adopts the rulings cited hereinabove and concludes that the conduct proposed in the inquiry is improper.

This 31st day of December, 1981.

ETHICS COMMITTEE:

A. B. Goddard

Jack C. Raulston

John T. Henniss CONCURS

APPROVED AND ADOPTED BY THE BOARD

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