Can a lawyer who defends the sheriff in a Section 1983 civil-rights suit also defend criminal cases in which the same deputies are prosecution witnesses?

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 Treat this page as historical context, not current guidance.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

A lawyer asked whether he could represent criminal defendants in cases where the sheriff or sheriff's officers testify for the prosecution, while also representing the sheriff in defense of alleged civil-rights violations (a 42 U.S.C. 1983 action) in which the same officers would be material witnesses. The sheriff was being defended because the sheriff's liability insurance carrier had hired the lawyer.

The opinion drew on the Supreme Court of Kentucky's decision in In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416, which held that energetic criminal defense often entails vigorous cross-examination of police officers, creating a conflict that endangers the lawyer's ability to represent the defendant zealously under Canon 7, and that under Canon 9 "any appearance of impropriety is to be avoided." It noted the Kentucky opinion had been cited in Tennessee Formal Ethics Opinions 81-F-18 and 83-F-41, and it invoked the "New Jersey Rule" adopted in Formal Ethics Opinion 81-F-4: where the public interest is involved, disclosure alone does not cure a conflict because the lawyer may not represent conflicting interests even with everyone's consent.

The opinion concluded that the public interest is involved both in Section 1983 actions against the sheriff and in the prosecution and defense of crimes. Where the same officers are material witnesses in each matter and the testimony is disputed or conflicting so as to fetter the lawyer's judgment or loyalty, a conflict exists and the lawyer may not accept the criminal cases; the impropriety lasts for the duration of the sheriff's representation, including any appeal, and applies to all members of the firm. Where no such conflict exists and the common witnesses' testimony is not disputed or controverted, the lawyer may accept the criminal cases while the civil-rights action is pending. The mere fact that a member of the sheriff's department is a witness in a criminal action does not, by itself, preclude the representation. The opinion also clarified that an attorney hired by the sheriff's liability insurer is not representing a "nominal" party: a lawyer retained by an insurer has a direct attorney-client relationship with the insured and owes the insured complete loyalty.

Common questions

Q: Can a lawyer defend the sheriff in a civil-rights suit and also defend criminal cases where the deputies are witnesses?

A: Only when there is no conflict. The opinion held it improper to accept the criminal cases where the officers are material witnesses in both matters and "disputed or conflicting testimony which fetters the judgment or loyalty of the attorney to each client" is involved; where the common witnesses' testimony "is not disputed or controverted, an attorney may accept criminal cases while such civil rights action is pending."

Q: Does a deputy merely being a witness in a criminal case create the conflict?

A: No. The opinion stated that "[t]he fact that a member of the Sheriff's Department is a witness in a criminal action does not, of itself, preclude an attorney from accepting employment of a criminal defendant" while also representing the sheriff, "so long as the attorney has no conflict as set forth above."

Q: Does it matter that an insurance carrier, not the sheriff, hired the lawyer?

A: No. The opinion held that a lawyer hired by the sheriff's liability insurer is not representing a nominal party; "[a]ttorneys employed by an insurance carrier to represent their insured have a direct attorney-client relationship with the insured" and owe the insured complete loyalty.

Q: How long does the disqualification last?

A: The opinion stated the impropriety "exists for the duration of the representation of the sheriff and extends through the duration of any appeal thereof and applies to all members of the firm."

Background and rules framework

The opinion applied the "New Jersey Rule" the Board had adopted in Formal Ethics Opinion 81-F-4 (where the public interest is involved, disclosure and consent do not cure a conflict) and the zealous-representation and appearance-of-impropriety principles of Canons 7 and 9 of the Tennessee Code of Professional Responsibility, as articulated by the Supreme Court of Kentucky in In re Advisory Opinion of the Kentucky Bar Association. 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 7 (zealous representation) and Canon 9 (avoiding the appearance of impropriety), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest: current clients), modern correlate

Statutes:

• 42 U.S.C. 1983 (civil action for deprivation of civil rights)

Cases:

• In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416 (Ky.), conflict in cross-examining allied police officers; appearance of impropriety
• O'Hara v. Kentucky Bar Association, 535 S.W.2d 83 (Ky. 1975), the appearance-of-impropriety standard

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 83-F-41, county attorney may not defend persons prosecuted by county officers

See also

• Tennessee Op. 85-F-92: Defense Counsel and the Sheriff
• Tennessee Op. 84-F-60: County Attorney Defending Criminal Cases Against Sheriff's-Office Witnesses
• Tennessee Op. 83-F-57: Defending a Criminal Case When an Associate Is the City Attorney
• Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-56

Original opinion text

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

83-F-56 - Representing Criminal Defendants

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-56

Inquiry is made concerning the propriety of representing defendants charged with crimes in cases wherein the Sheriff and/or officers of the Sheriff's Department are witnesses for the prosecution while also representing the Sheriff in defense of alleged civil rights violations wherein the officers will be material witnesses.

The Supreme Court of Kentucky, in review of an ethics opinion adopted by the Board of Governors of the Kentucky Bar Association, In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, unanimously held:

The opinion states 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.

This court recognizes the American Bar Associations's Code of Professional Responsibility as a sound statement of the standards of conduct required of members of the bar.

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.

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.' As we said in O'Hara v. Ky. Bar Association, Ky., 535 SW 2d 83 (1975), 'The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided ....'

The opinion of the Board of Governors is affirmed.

The above opinion has been cited in Tennessee Formal Ethics Opinion 81-F-18 which holds that an attorney may not represent a criminal defendant in instances where it may alienate or jeopardize the corporate representation of the Law Enforcement Officers Association; and, has also been cited in Tennessee Formal Ethics Opinion 83-F-41 which holds that a County Attorney cannot represent criminal defendants prosecuted by the county officers.

The "New Jersey Rule" which has been cited and adopted in Tennessee Formal Ethics Opinion 81-F-4 states:

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.

The public interest is involved in 42 USC 1983 actions against the Sheriff for alleged civil rights violations and also involved in prosecution and defense of persons charged with crimes. Where the defense of sheriffs for alleged civil rights violations and the defense of persons charged with a crime involves the sheriff or deputies who are material witnesses in each instance and involves disputed or conflicting testimony which fetters the judgment or loyalty of the attorney to each client, there is a conflict and it would be improper for the attorney to accept defense of the criminal cases where such conflict exists. The impropriety exists for the duration of the representation of the sheriff and extends through the duration of any appeal thereof and applies to all members of the firm.

However, where no conflict does exist and where the testimony of the common witnesses is not disputed or controverted, an attorney may accept criminal cases while such civil rights action is pending.

The fact that a member of the Sheriff's Department is a witness in a criminal action does not, of itself, preclude an attorney from accepting employment of a criminal defendant and at the same time continue to represent the sheriff in a civil rights action or accept such employment in a civil rights case, so long as the attorney has no conflict as set forth above.

The inquiring attorney states that the sheriff is a nominal defendant in the 42 USC 1983 civil rights violation action due to the fact that the sheriff's liability insurance carrier employed him to represent the sheriff.

The fact that the sheriff's liability insurance carrier employed the attorney to represent the sheriff does not make the sheriff a nominal party. Attorneys employed by an insurance carrier to represent their insured have a direct attorney-client relationship with the insured. The attorney is obligated to represent the client-insured zealously and owes his complete loyalty to the insured.

This 22nd day of September, 1983.

ETHICS COMMITTEE:

Edwin C. Townsend

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD