Can a criminal defense lawyer represent a defendant prosecuted by the city police when the lawyer's associate is the city attorney?

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 Treat this page as historical context, not current guidance.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 a criminal defendant in state court on charges arising from a city police investigation and prosecution when his associate served as the city attorney. The underlying case involved a homicide in which five city police officers were material eyewitnesses to events immediately preceding the killing, one officer was the affiant on the criminal warrant, the accused was a controversial former county public official, and the case had drawn widespread media attention. The city attorney's charter duties were limited to advising the board of mayor and aldermen, preparing ordinances, and handling civil litigation; he did not advise the police on criminal prosecutions, probable cause, or search warrants, and became involved with police matters only in civil proceedings such as civil-rights or confiscation actions.

The opinion drew on a line of prior Board rulings: Formal Ethics Opinion 81-F-18 (an attorney for a law enforcement officers' association should not represent criminal defendants where it could alienate the officers or jeopardize the corporate representation), 83-F-23 (a city attorney cannot defend a person prosecuted by the city police department), 83-F-41 (the public cannot waive the appearance of impropriety where a county attorney's partner or associate defends persons prosecuted by county law enforcement, under the vicarious disqualification provision of DR 5-105(D)), and 83-F-53 (inherent impairment where a lawyer represents the sheriff or deputies on budget matters while also defending criminal cases the county prosecutes). It quoted In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416, for the conflict a lawyer faces between vigorous cross-examination of police officers and alienating a group of officers, and for the principle from Canon 9 that "any appearance of impropriety is to be avoided."

The opinion reasoned that the public "is unable to waive the appearance of impropriety in matters such as this," because of the apparent impairment of the attorney's duty to cross-examine the officers zealously and because the public has a right to expect the adversarial system to perform fully, given that the attorney's associate counsels the board of mayor and aldermen who control the city police department. It concluded that the appearance-of-impropriety and vicarious-disqualification rules of the Code prohibited the attorney from representing the criminal defendant prosecuted by the city police department when the attorney's associate was the city attorney.

Common questions

Q: Can a criminal defense lawyer represent a defendant prosecuted by the city police when the lawyer's associate is the city attorney?

A: No. The opinion concluded that "[t]he appearance of impropriety and vicarious disqualification rules of the Code prohibit the attorney from representing the criminal defendant prosecuted by the city police department when the attorney's associate is the city attorney."

Q: Does it matter that the city attorney has no role in criminal prosecutions?

A: The opinion noted that the city attorney did not advise the police on criminal matters, yet it still found disqualification, reasoning that the public is "unable to waive the possibility of impairment of the vigorous prosecution of the case by the city police officers due to the attorney's associate being in a position of counseling and advising the board of mayor and aldermen who have authority and control over the city police department."

Q: Can the client or the public consent to the conflict?

A: No. The opinion held that "[t]he public is unable to waive the appearance of impropriety in matters such as this," because the public has a right to expect the adversarial system of justice to perform to the fullest extent.

Q: Does the disqualification reach the lawyer's partner or associate?

A: Yes. The opinion applied the Code's vicarious disqualification provision, DR 5-105(D), under which, as Formal Ethics Opinion 83-F-41 had held, the partner or associate of the disqualified lawyer is also prohibited from the representation.

Background and rules framework

The opinion applied two doctrines from the Tennessee Code of Professional Responsibility: the appearance-of-impropriety principle of Canon 9 ("A lawyer should avoid even the appearance of professional impropriety") and the vicarious disqualification provision of Disciplinary Rule 5-105(D), which imputes one lawyer's disqualification to partners and associates. It also invoked the zealous-representation duty of Canon 7. The opinion built on prior Board rulings (81-F-18, 83-F-23, 83-F-41, 83-F-53) and on In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416. The modern correlates are Model Rule 1.7 (conflicts of interest: current clients) and Model Rule 1.10 (imputation of conflicts), cited here as navigational cross-references rather than rules 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:

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

Cases:

• In re Advisory Opinion of the Kentucky Bar Association, 613 S.W.2d 416 (Ky.), conflict between vigorous cross-examination of police officers and alienating them, and the appearance-of-impropriety standard

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-18, attorney for a law enforcement officers' association defending criminal cases
• Tennessee Formal Ethics Opinion 83-F-23, city attorney may not defend persons prosecuted by the city police
• Tennessee Formal Ethics Opinion 83-F-41, vicarious disqualification when the attorney's associate is county attorney
• Tennessee Formal Ethics Opinion 83-F-53, county attorney's budget and law-enforcement 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. 85-F-92: Defense Counsel and the Sheriff
• 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-57

Original opinion text

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

83-F-57 - City Attorney Associate

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-57

Inquiry is made concerning the propriety of representing a criminal defendant in state court on charges resulting from investigation and prosecution by the city police department when the attorney's associate is city attorney.

Five members of the city police department were material eye witnesses to events immediately preceding a homicide. The accused defendant is a controversial former public official of the county. One of the city police officers is the affiant to the criminal warrant which alleges material facts relating to the events before the homicide and to investigative facts after the homicide. The case has received widespread public attention including considerable coverage by the television media.

The city attorney, in this instance, is elected by the board of mayor and aldermen. His duties defined in the city charter are to attend meetings of the board and give such legal counsel as required by the board, to prepare ordinances, to attend all litigation wherein the city may be a party, and to transact such other business related to city government as may be imposed by ordinance. Neither the city charter nor any city ordinances charge the city attorney with the duty or responsibility of advising the city police department concerning the prosecution of criminal cases in state court or advising the police department concerning any investigation or prosecution of criminal activity or related matters.

The city police department relies upon the office of the local district attorney general for legal advice in connection with criminal activity. The city attorney is not consulted for advice as to probable cause relating to criminal proceedings, advice as to search warrants or any other legal counsel in connection with investigations or related duties performed by the police department. The only way the city attorney becomes involved in matters relating to criminal activities is in connection with civil matters which may arise; such as, civil rights actions, confiscation proceedings or other civil proceedings arising from actions or activities of the city police.

Tennessee Formal Ethics Opinion 81-F-18 states that an attorney representing the Tennessee Law Enforcement Officers Association should not represent criminal defendants when the representation may alienate officers or directors of such association or jeopardize the corporate representation. The opinion cites In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, jurisdiction and quotes the opinion 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.

Tennessee Formal Ethics Opinion 83-F-23 holds that a city attorney cannot defend a person prosecuted in criminal court by the city police department and further quotes In Re: Advisory Opinion of Kentucky Bar Association, (supra) 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 ....

Tennessee Formal Ethics Opinion 83-F-41 holds that the public cannot waive the appearance of impropriety inherent in the county attorney representing criminal defendants prosecuted by county law enforcement officers and 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.

Tennessee Formal Ethics Opinion 83-F-53 holds that 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 county law enforcement officers.

The public is unable to waive the appearance of impropriety in matters such as this. There is an apparent impairment of independent professional judgment of the attorney and his duty to represent the client zealously by vigorous cross-examination of the police officers, possibly alienating them or discrediting their testimony. The public also has a right to expect that the adversarial system of justice will perform to the fullest extent and, therefore, is unable to waive the possibility of impairment of the vigorous prosecution of the case by the city police officers due to the attorney's associate being in a position of counseling and advising the board of mayor and aldermen who have authority and control over the city police department.

The appearance of impropriety and vicarious disqualification rules of the Code prohibit the attorney from representing the criminal defendant prosecuted by the city police department when the attorney's associate is the city attorney.

This 24th day of October , 1983.

ETHICS COMMITTEE:

Edwin C. Townsend

Henry H. Hancock

W. J. Flippin

APPROVED AND ADOPTED BY THE BOARD