Can a county's civil lawyer (delinquent-tax, budget, beer-permit work) also defend criminal cases prosecuted by county law enforcement?

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. Formal Ethics Opinion 86-F-107(a) later overruled the Board's prior line of per se governmental-conflict opinions, including this one, "to the extent inconsistent" with a case-by-case approach. Treat this page as historical context, not current guidance.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 who represented the county as delinquent tax attorney and on other specified civil matters could also represent criminal defendants prosecuted by county law enforcement officers. The civil work included defending the county in beer-permit denials, counseling on the county budget and fiscal matters, preparing capital outlay notes, and litigating salary increases for county officials. Of these, only the beer-permit defense and petitions to increase the sheriff's budget or deputies' salaries required collaboration with the sheriff.

Drawing on its prior governmental-conflict opinions (81-F-4, 81-F-18, 83-F-41) and the appearance-of-impropriety reasoning quoted in 81-F-23 from the Supreme Court of Kentucky's In re Advisory Opinion of the Kentucky Bar Association, the opinion drew a line. It found an inherent impairment of independent professional judgment where the attorney represents the sheriff or deputies to increase the sheriff's budget or deputies' salaries, or defends the county in beer-permit denials requiring collaboration with the sheriff or involving the county's law-enforcement effort, while also defending criminal cases the county's officers prosecute. By contrast, it found no inherent impairment in representing the county as delinquent tax attorney, counseling on the county budget and fiscal matters unrelated to law enforcement, and preparing capital outlay notes, while also defending such criminal cases.

The opinion concluded that it is improper for the attorney to counsel the county on its budget and also represent the sheriff or deputies to increase that budget or their salaries, calling it an actual conflict of interest, and that under 83-F-41 the public cannot waive the appearance of impropriety in such conflicts, so the conflict cannot be waived.

Common questions

Q: Can a county's delinquent-tax lawyer also defend criminal cases prosecuted by county officers?

A: Yes, in the configuration the opinion approved. It found "no inherent impairment" in representing the county "as delinquent tax attorney, counseling in preparation of the county budget and fiscal matters unrelated to the county law enforcement effort, preparation of capital outlay notes and also representing criminal defendants prosecuted by county law enforcement officers."

Q: What combination creates a disqualifying conflict?

A: Representing the sheriff or deputies "to increase the sheriff's budget or deputies' salaries," or defending beer-permit denials "where collaboration with the sheriff is required," while also defending criminal cases the county prosecutes. The opinion found that combination an inherent impairment of independent judgment.

Q: Can the county or the lawyer consent around that conflict?

A: No. The opinion held the budget-and-sheriff combination is "an actual conflict of interest" and, citing 83-F-41, that "the public cannot waive the appearance of impropriety in matters such as conflicts of interest," so the conflict cannot be waived.

Background and rules framework

The opinion applied the Board's "New Jersey Rule" line of governmental-conflict opinions (81-F-4, 81-F-18, 81-F-23, 83-F-41) and the appearance-of-impropriety principle of Canon 9 of the Tennessee Code of Professional Responsibility. No Disciplinary Rule is cited by number in the opinion's own text. 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. Formal Ethics Opinion 86-F-107(a) later replaced the Board's per se governmental-conflict line with a case-by-case approach.

Citations and references

Rules of Professional Conduct:

• Canon 9 (avoiding the appearance of impropriety), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest: current clients), modern correlate

Cases:

• In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416 (Ky.), the appearance-of-impropriety standard in criminal defense (quoted via Opinion 81-F-23)

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-4, the "New Jersey Rule" on public-interest conflicts
• Tennessee Formal Ethics Opinion 81-F-18, attorney for a law enforcement officers' association defending criminal cases
• Tennessee Formal Ethics Opinion 81-F-23, city attorney may not defend persons prosecuted by city police
• Tennessee Formal Ethics Opinion 83-F-41, the public cannot waive the appearance of impropriety in county-prosecution conflicts

See also

• Tennessee Op. 83-F-41: County Attorney May Not Defend Criminal Cases Prosecuted by the County's Own Officers
• Tennessee Op. 84-F-60: County Attorney Defending Criminal Cases Against Sheriff's-Office Witnesses
• Tennessee Op. 83-F-58: Juvenile Court Judge Representing the School Board Against the County
• Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case
• Tennessee Op. 86-F-107: Governmental Attorney Per Se Conflict Rules (Vacated)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-53

Original opinion text

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

83-F-53 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-53

Inquiry is made concerning the propriety of an attorney representing the County as delinquent tax attorney and other specific civil matters and also representing criminal defendants prosecuted by county law enforcement officers.

The attorney represents the County as delinquent tax attorney. The other specific civil matters also handled by the attorney are: Defending the County in denial of beer permits; counseling in preparation of the county budget and in fiscal matters; preparation of capital outlay notes and litigation involving salary increases for county officials. None of these activities require collaboration with the sheriff, chief law enforcement for the county, except the defense of the beer permit denials and petitions to increase the sheriff's budget for increase of deputy sheriffs' salaries.

There is an inherent impairment of independent professional judgment of an attorney in representing the sheriff and/or deputy sheriffs to increase the sheriff's budget or deputies' salaries and defending the County in denial of beer permits where collaboration with the sheriff is required or the law enforcement effort of the County is involved, and also representing criminal defendants prosecuted by the county law enforcement officers. See Tennessee Formal Ethics Opinions 81-F-4, 81-F-18 and 83-F-41.

Tennessee Formal Ethics Opinion 81-F-23 holds that a City Attorney cannot defend a person prosecuted in Criminal Court by the City Police Department and cites In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, 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 ....

There is no inherent impairment of independent professional judgment of an attorney representing the County as delinquent tax attorney, counseling in preparation of the county budget and fiscal matters unrelated to the county law enforcement effort, preparation of capital outlay notes and also representing criminal defendants prosecuted by county law enforcement officers.

It is improper for the attorney to counsel the County in preparation of the county budget and also represent the sheriff and/or deputy sheriffs to increase the budget or salaries. This is an actual conflict of interest. Tennessee Formal Ethics Opinion 83-F-41 holds that it is clear that the public cannot waive the appearance of impropriety in matters such as conflicts of interest. Therefore, in such instances, the conflict of interest cannot be waived.

This 12th day of August, 1983.

ETHICS COMMITTEE:

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD