Can a county attorney secretly draft a pro se petition and agreed order for a county official seeking salary increases for county employees, funded by the county budget the attorney also handles?

Plain-English summary

The inquiry concerned a proposed arrangement under which the county attorney would draft, prepare, and file a petition on behalf of the County Court Clerk against the County Executive under T.C.A. § 8-20-101 et seq., seeking salary increases for deputy clerks, and would also prepare and assist in executing an agreed order approved by the parties. The county attorney's name would not appear as attorney of record for either party or on any of the documents.

The opinion applied ABA Informal Opinion 1414, which condemns extensive undisclosed lawyer participation that lets a litigant falsely appear to be without substantial professional assistance, citing Klein v. H.N. Whitney, Goodby & Co., 341 F. Supp. 699 (S.D.N.Y. 1971), and Klein v. Spear, Leeds & Kellogg, 309 F. Supp. 341 (S.D.N.Y. 1970). It also applied Tennessee Formal Ethics Opinion 83-F-53, which held it improper for an attorney to counsel a county on preparing its budget while also representing the sheriff or deputy sheriffs seeking a budget or salary increase, an actual conflict of interest, and Formal Ethics Opinion 83-F-41, which held that the public cannot waive the appearance of impropriety in such conflicts of interest. The opinion reasoned that the county attorney is the agent, servant, and employee of the county's legislative body, which conducts the county's financial affairs, so there is an impairment of independent professional judgment when the county attorney aids, counsels, advises, or assists a county official in seeking salary increases financed by county funds, and that conflict cannot be waived where the public interest is involved. The opinion concluded it is therefore improper for the county attorney to assist the county official in filing the pro se petition or in preparing and executing the agreed pro se order.

Currency note

This opinion was issued in 1985, 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a county attorney secretly draft court filings for a county official seeking a salary increase, without the attorney's name appearing on the documents?

A: No. The opinion found this kind of undisclosed assistance improper, both because it lets the official falsely appear to be acting without professional help and because it places the county attorney in a conflict between the county's finances and the official's salary request.

Q: Can the county waive this conflict if everyone involved agrees?

A: No. The opinion held that the public interest in this kind of conflict cannot be waived, following Formal Ethics Opinion 83-F-41's rule that the public cannot waive the appearance of impropriety in conflicts of interest.

Background and rules framework

The opinion applied ABA Informal Opinion 1414 (undisclosed lawyer assistance to a pro se litigant) and the Board's governmental-conflict line of opinions, Formal Ethics Opinion 83-F-53 (county attorney conflict on budget and salary matters) and 83-F-41 (no waiver of public-interest conflicts). The modern correlates are Model Rule 1.7 (conflicts of interest with current clients) and Model Rule 1.11 (special conflicts rules for government officers and employees), cited here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Statutes:

• T.C.A. § 8-20-101 et seq. (county officials' salary-increase petitions)

Cases:

• Klein v. H.N. Whitney, Goodby & Co., 341 F. Supp. 699 (S.D.N.Y. 1971), undisclosed lawyer assistance to a pro se litigant
• Klein v. Spear, Leeds & Kellogg, 309 F. Supp. 341 (S.D.N.Y. 1970), undisclosed lawyer assistance to a pro se litigant

Other opinions cited:

• ABA Informal Opinion 1414, undisclosed lawyer participation in pro se litigation
• Tennessee Formal Ethics Opinion 83-F-53, county attorney conflict on budget and salary matters
• Tennessee Formal Ethics Opinion 83-F-41, no waiver of public-interest conflicts of interest

See also

• Tennessee Op. 83-F-41: County Attorney May Not Defend Criminal Cases Prosecuted by the County's Own Officers (the no-waiver rule this opinion applies)
• Tenn. Ethics Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case (this opinion's per se conflict overruled to the extent inconsistent)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-83

Original opinion text

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

85-F-83 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-83

Inquiry is made concerning the propriety of a County Attorney assisting a County official in filing a pro se petition against the County Executive and assisting the parties in preparing and executing an agreed pro se order granting salary increases to the deputy clerks.

The County Attorney proposes to draft, prepare and file a petition on behalf of the County Court Clerk against the County Executive, pursuant to TCA 8-20-101 et seq., seeking salary increases for the deputy clerks. In addition, he will prepare and assist in the execution and filing of an agreed order approved by the parties. The name of the County Attorney will not appear as attorney of record for either party, nor will his name appear on the documents as attorney for either party.

In reference to assisting pro se litigants, American Bar Association Informal Opinion 1414 states:

Extensive undisclosed participation by a lawyer ... that permits the litigant falsely to appear as being without substantial professional assistance is improper ... the practice has been condemned in Klein v. H. N. Whitney, Goodby & Co., 341 F.Supp. 699 (S.D.N.Y. 1971) and in the related case of Klein v. Spear, Leeds & Kellogg, 309 F.Supp. 341 (S.D.N.Y. 1970).

Questions concerning the impairment of independent professional judgment and waiver of conflicts of interests by public entities are also material to the inquiry. Tennessee Formal Ethics Opinion 83-F-53 addresses these matters as follows:

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 interests. Therefore, in such instances, the conflict of interest cannot be waived.

The County Attorney is the agent, servant and employee of the county entity, the legislative body, which is charged with conducting the financial affairs of the county. There is an impairment of independent professional judgment when the County Attorney attempts to aid, counsel, advise or assist a county official in seeking salary increases which are financed by county funds. There can be no waiver of the conflict when the public interests are involved.

It is, therefore, improper for the County Attorney to assist a County official in filing a pro se petition against the County Executive and to assist the parties in preparing and executing an agreed pro se order granting salary increases to the deputy clerks.

This 2nd day of January, 1985.

ETHICS COMMITTEE:

Charles T. Herndon, III

T. Maxfield Bahner

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD