Can a county attorney defend criminal defendants when the sheriff or deputy sheriffs are prosecution witnesses, if the county walls the attorney off from any law-enforcement counseling role?

Currency note

This opinion was issued in 1984, 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) (1986) 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 Treat this page as historical context, not current guidance.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 county had precluded and prohibited its county attorney from representing the sheriff or deputy sheriffs, and from participating in discussions with or counseling the county on any matters relating to its law enforcement efforts, while asking whether that same county attorney could represent criminal defendants in cases where the sheriff or deputies served as prosecution witnesses. The opinion reviewed two prior rulings. Formal Ethics Opinion 83-F-57 had held that the vicarious disqualification rule barred representing a criminal defendant on charges from city police investigation when the attorney's associate was city attorney, reasoning that "[t]he public is unable to waive the appearance of impropriety in matters such as this" because of the impairment of independent judgment and the public's right to a fully adversarial process. Formal Ethics Opinion 83-F-53 had found "no inherent impairment of independent professional judgment" in an attorney representing the county as delinquent-tax attorney, on budget and fiscal matters unrelated to law enforcement, and as criminal defense counsel against county prosecutions, but had found an inherent impairment where the attorney also represented the sheriff or deputies on budget or salary matters, or defended the county on beer-permit denials requiring sheriff collaboration, while also defending criminal cases the county's law enforcement officers prosecuted.

Reasoning that "[t]he governmental entity is charged with the responsibility of providing a law enforcement effort and is responsible to provide an adversarial system to administer justice," and that an attorney who both counsels the government on that effort and represents persons it charges has "an inherent impairment of professional responsibility" that "cannot be waived or excused," the opinion concluded that the county's attorney "may also represent defendants charged with unlawful activity when law enforcement officers or employees of the governmental entity are prosecutors or witnesses only" if three conditions hold: the attorney is precluded from representing the law enforcement officers or employees; the attorney is precluded from counseling the government on any matters relating to its law enforcement efforts or judicial system; and the government has actually obtained independent professional legal advice on its law-enforcement and justice-system responsibilities.

Common questions

Q: Can a county attorney defend a criminal case where the sheriff's office is a prosecution witness?

A: Yes, but only under strict conditions. The opinion holds the attorney "may also represent defendants charged with unlawful activity when law enforcement officers or employees of the governmental entity are prosecutors or witnesses only" if walled off from representing those officers and from counseling on law-enforcement matters, and the county has independent legal advice on those matters.

Q: Can the same attorney represent the county on routine budget or tax matters and still defend criminal cases?

A: The opinion's discussion of Formal Ethics Opinion 83-F-53 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," combined with criminal defense work, but found an inherent impairment once the attorney also represented the sheriff or deputies on budget, salary, or law-enforcement-linked matters.

Q: Can the conflict described here be waived by the county or the defendant?

A: No. The opinion holds the conflicting interests "cannot be waived or excused" because the public's interest in a fully adversarial justice system is at stake, not just the parties' private interests.

Background and rules framework

The opinion applied and synthesized Formal Ethics Opinions 83-F-57 and 83-F-53, both addressing vicarious disqualification and inherent conflicts for attorneys serving governmental clients with law-enforcement responsibilities. No Disciplinary Rule is cited by number in this opinion's own text. The modern correlates are Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (special conflicts rules for former and current government officers and employees), cited here as navigational cross-references rather than rules the opinion itself applied; Formal Ethics Opinion 86-F-107(a) later overruled this per se approach in favor of case-by-case analysis.

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-57, vicarious disqualification when an attorney's associate is city attorney
• Tennessee Formal Ethics Opinion 83-F-53, county attorney's conflicts on budget, tax, and sheriff-related matters

See also

• Tennessee Op. 83-F-57: Defending a Criminal Case When an Associate Is the City Attorney
• Tennessee Op. 83-F-53: County Civil Counsel Also Defending Criminal Cases
• Tennessee Op. 86-F-107: Governmental Attorney Per Se Conflict Rules (Vacated)
• Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-60

Original opinion text

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

84-F-60 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 84-F-60

Inquiry is made concerning the propriety of the county attorney representing defendants charged with unlawful activity in cases wherein the sheriff and/or deputy sheriffs are witnesses for the prosecution and the county has precluded and prohibited the county attorney from representing the sheriff and/or deputy sheriffs; and, precluded and prohibited the county attorney from participating in discussions with or counseling the county in any and all matters relating to the law enforcement efforts by or on behalf of the county.

Tennessee Formal Ethics Opinion 83-F-57 holds that the vicarious disqualification rule of the Code of Professional Responsibility prohibits representation of a criminal defendant on charges resulting from investigation and prosecution by the city police when the attorney's associate is city attorney. The opinion states:

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 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 Ethics Committee of the Board stated in Formal Ethics Opinion 83-F-53:

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.

However, the above opinion, 83-F-53, holds that there is an inherent impairment of independent professional judgment of an attorney 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 governmental entity is charged with the responsibility of providing a law enforcement effort and is responsible to provide an adversarial system to administer justice to those charged with unlawful activity. The attorney who counsels and serves the governmental entity in providing the law enforcement effort and judicial system has an inherent impairment of professional responsibility to the governmental entity and also to the person charged when undertaking to represent both interests. The conflicting and inconsistent interests and responsibilities cannot be waived or excused.

Therefore, the attorney representing the governmental entity may also represent defendants charged with unlawful activity when law enforcement officers or employees of the governmental entity are prosecutors or witnesses only in event the attorney is precluded and prohibited from representing the law enforcement officers or employees; and, is precluded and prohibited from participating in discussions or counseling with the governmental entity in any and all matters relating to the law enforcement efforts or judicial system of the governmental entity; and, provided the governmental entity has actually obtained independent professional legal advice and counseling relating to its responsibilities to provide law enforcement services and system of justice.

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

F. Evans Harvill

William R. Willis

APPROVED AND ADOPTED BY THE BOARD