Can a County Attorney, or the County Attorney's law partner or associate, represent criminal defendants prosecuted by the County Sheriff and deputies?

Currency note

This opinion was issued in 1983, 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 may have changed the analysis. Treat this page as historical context, not current guidance.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 an attorney could represent criminal defendants prosecuted by the County Sheriff and deputies when the attorney's associate served as County Attorney.

The opinion drew on three of its own prior formal opinions. Formal Ethics Opinion 81-F-4 had adopted the "New Jersey Rule," under which an attorney who serves as counsel for a municipality or public agency and also represents private clients whose interests come before or are affected by it has an affirmative duty to disclose the conflict immediately and fully, withdraw completely from representing both the agency and the private client on the matter, and recommend that the agency retain independent counsel, because where the public interest is involved, disclosure alone does not cure the conflict and consent cannot waive it. Formal Ethics Opinion 81-F-18 had held that representing a criminal defendant could not be undertaken where it would alienate or jeopardize the firm's corporate representation of the Law Enforcement Officers Association, quoting the Kentucky Supreme Court on the tension between vigorous cross-examination of police witnesses and the firm's institutional relationship with law enforcement. Formal Ethics Opinion 81-F-23 had held it improper for a City Attorney to defend a person prosecuted in Criminal Court by the City Police Department, again quoting the Kentucky court's Canon 9 admonition that a lawyer must avoid even the appearance of professional impropriety, because the point is not whether actual impropriety exists but that any appearance of it must be avoided.

Applying that line of authority, the opinion concluded that the public cannot waive the appearance of impropriety inherent in a County Attorney representing criminal defendants prosecuted by the County's own law enforcement officers, so the County Attorney is barred from such representation. Because Disciplinary Rule 5-105(D) vicariously disqualifies partners and associates of a disqualified attorney, the County Attorney's law partner or associate is barred from the representation as well.

Common questions

Q: Can a County Attorney represent a criminal defendant prosecuted by the County Sheriff's office?

A: No. The opinion states "the County Attorney cannot represent criminal defendants prosecuted by the County officers" because "the public cannot waive the appearance of impropriety inherent" in that dual role.

Q: Does the bar extend to the County Attorney's law partner or associate?

A: Yes. The opinion holds that "pursuant to the vicarious disqualification provision of Disciplinary Rule 5-105(D) of the Code of Professional Responsibility, the partner or associate of the County Attorney is also prohibited from such representation."

Q: Can disclosure and client consent cure the conflict?

A: No. Quoting the New Jersey Rule adopted in 81-F-4, the opinion notes that "where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned."

Background and rules framework

The opinion applied the vicarious disqualification provision of Disciplinary Rule 5-105(D) of the Tennessee Code of Professional Responsibility, building on the "New Jersey Rule" adopted in Formal Ethics Opinion 81-F-4 and the appearance-of-impropriety analysis of Formal Ethics Opinions 81-F-18 and 81-F-23. The modern correlates are Model Rule 1.7 (conflicts of interest: current clients) and Model Rule 1.10 (imputation of conflicts of interest), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D) (vicarious disqualification), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest) and Model Rule 1.10 (imputation of conflicts), modern correlates

Cases:

• In Re: A&B, 44 N.J. 331, 209 A.2d 101, municipal attorney's duty to disclose and withdraw from conflicting private representation (quoted in 81-F-4)
• 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-4: adopted the "New Jersey Rule" for attorneys representing both a public agency and conflicting private clients
• 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
• Tennessee Formal Ethics Opinion 81-F-23: barred a City Attorney from defending a person prosecuted by the City Police Department

See also

• Tennessee Op. 81-F-18: Firm Serving Police Association and Criminal Defense
• Tennessee Op. 83-F-53: County Attorney's Civil Practice and Criminal Defense Conflicts
• Tennessee Op. 83-F-56: Sheriff's Civil-Rights Counsel Defending Criminal Cases
• Tennessee Op. 83-F-57: City Attorney's Associate Defending Criminal Cases
• Tennessee Op. 86-F-105: County Commissioner Representing Criminal Defendants
• Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-41

Original opinion text

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

83-F-41 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-41

Inquiry is made concerning the propriety of representing criminal defendants prosecuted by the County Sheriff and deputies when the attorney's associate is the County Attorney.

Tennessee Formal Ethics Opinion 81-F-4 adopted the "New Jersey Rule" and quoted the New Jersey Supreme Court as follows:

... the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances, the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.

... It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status.--- In Re: A&B., 44 N.J. 331, 209 Atl. (2d) 101.

Tennessee Formal Ethics Opinion 81-F-18 held that in the event representing a criminal defendant may alienate or jeopardize the corporate representation of the Law Enforcement Officers Association, then such representation would be prohibited. The opinion quotes The Kentucky Supreme Court as follows:

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.In Re: Advisory Opinion of Kentucky Bar Association, 613 S.W. (2d) 416.

Tennessee Formal Ethics Opinion 81-F-23 held that it was improper for a City Attorney to defend a person being prosecuted in Criminal Court by the City Police Department. The opinion further quoted the Kentucky Supreme Court as follows:

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 ....In Re: Advisory Opinion of Kentucky Bar Association, supra.

It is clear that the public cannot waive the appearance of impropriety inherent in the County Attorney representing criminal defendants prosecuted by the County law enforcement officers. Thus, the County Attorney cannot represent criminal defendants prosecuted by the County officers. Therefore, pursuant to the vicarious disqualification provision of Disciplinary Rule 5-105(D) of the Code of Professional Responsibility, the partner or associate of the County Attorney is also prohibited from such representation.

This 14th day of April, 1983.

ETHICS COMMITTEE:

F. Evans Harvill

Oscar B. Hofstetter, Jr.

William R. Willis

APPROVED AND ADOPTED BY THE BOARD