Can a sitting Speaker of the State Senate and Lieutenant Governor, who is also a lawyer, represent private claimants suing the State for damages?

Plain-English summary

The inquiry concerned whether an attorney who served as Speaker of the State Senate and Lieutenant Governor could represent claimants in an action for damages against the State. The opinion traced the question to Formal Ethics Opinion 81-F-4, which first adopted the "New Jersey Rule" from In re A & B, 44 N.J. 331, 209 A.2d 101 (1965), and In re Dolan, 76 N.J. 1, 384 A.2d 1076 (1978): an attorney may not represent both a governmental body and a private client merely because disclosure was made and all parties agree, because where the public interest is involved the attorney may not represent conflicting interests even with everyone's consent. The New Jersey court held that an attorney serving as counsel for a municipality or public agency who also represents private clients whose interests come before or are affected by that body has an affirmative ethical duty to fully disclose the conflict, withdraw completely from both representations, and recommend the public body retain independent counsel; that no attorney holding public office should let anyone attempt to gain an advantage from the attorney's official status; and that, in the land-development context particularly, dual representation is forbidden even where the attorney advises neither side, because the dual representation itself is contrary to the public interest.

The opinion noted the Board's subsequent opinions applying the same reasoning: 81-F-23 (a city attorney may not defend persons prosecuted by the city police department), 83-F-41 (improper to represent persons prosecuted by the sheriff's office when the attorney's associate is county attorney), 83-F-53 (improper for a county attorney to help prepare the county budget while also representing the sheriff or deputies seeking a larger budget or salaries), 83-F-57 (improper to represent a criminal defendant on charges from a city police investigation when the attorney's associate is city attorney), and 83-F-58 (improper for a county juvenile court judge to represent the county school board against the county commission on school funding). It also cited ABA Ethics Opinion 186, which held a county attorney may not represent a criminal defendant because the attorney's private and public duties may conflict, and ABA Ethics Opinion 1182, which read Disciplinary Rule 8-101(A)(2) to bar a lawyer from using a public position to influence a tribunal in the lawyer's or a client's favor, reasoning that a lawyer appearing before a board whose members' compensation or appointment depends on the legislature is in a position to exert such influence merely by appearing. Applying this body of law, the opinion concluded that an attorney may not breach a fiduciary duty as a public official by representing private interests against the public body the attorney represents, so the Speaker of the Senate and Lieutenant Governor of the State could not represent claimants suing the State for damages.

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 state legislator who is also a lawyer sue the State on behalf of a private client?

A: No, according to this opinion. The opinion held that a lawyer-public official may not represent private interests adverse to the public body the official represents, applying the "New Jersey Rule" that forbids such dual representation even with full disclosure and consent.

Q: Does disclosing the conflict and getting everyone's consent fix the problem?

A: No. The opinion's governing rule states that where the public interest is involved, disclosure alone is not sufficient, because the attorney may not represent conflicting interests even with the consent of all concerned.

Q: What must an attorney-public official do upon discovering this kind of conflict?

A: Under the rule the opinion adopted, the official has an affirmative ethical duty to immediately and fully disclose the conflict, withdraw completely from representing both the public body and the private client on that matter, and recommend that the public body retain independent counsel.

Background and rules framework

The opinion applied the "New Jersey Rule," first adopted by the Board in Formal Ethics Opinion 81-F-4, and Disciplinary Rule 8-101(A)(2) of the Code of Professional Responsibility (barring a lawyer from using a public position to influence a tribunal). This per se approach to governmental conflicts was later replaced with a case-by-case test in Formal Ethics Opinion 86-F-107(a). The modern correlates are Model Rule 1.11 (special conflicts rules for current and former government officers and employees) and Model Rule 1.7 (conflicts of interest with current clients), cited here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Cases:

• In re A & B, 44 N.J. 331, 209 A.2d 101 (1965), the "New Jersey Rule" against an attorney-public official representing conflicting interests
• In re Dolan, 76 N.J. 1, 384 A.2d 1076 (1978), the "New Jersey Rule" against an attorney-public official representing conflicting interests

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-4, first Board adoption of the "New Jersey Rule"
• Tennessee Formal Ethics Opinion 81-F-23, city attorney may not defend persons prosecuted by city police
• Tennessee Formal Ethics Opinion 83-F-41, county attorney's associate may not represent persons prosecuted by the sheriff's office
• Tennessee Formal Ethics Opinion 83-F-53, county attorney conflict on sheriff's budget matters
• Tennessee Formal Ethics Opinion 83-F-57, city attorney associate conflict in criminal defense
• Tennessee Formal Ethics Opinion 83-F-58, juvenile court judge representing the school board against the county commission
• ABA Ethics Opinion 186, county attorney may not represent a criminal defendant
• ABA Ethics Opinion 1182, public position may not be used to influence a tribunal

See also

• Tennessee Op. 83-F-41: County Attorney May Not Defend Criminal Cases Prosecuted by the County's Own Officers (same "New Jersey Rule" line)
• Tenn. Ethics Op. 86-F-105: County Commissioner Representing Criminal Defendants (applies this opinion's fiduciary-duty rule)
• Tenn. Ethics Op. 86-F-107: Governmental Attorney Per Se Conflict Rules (catalogs this opinion in the per se rule line, later vacated)
• Tenn. Ethics Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case (replaces the per se rule this opinion applied with a case-by-case test)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-88

Original opinion text

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

85-F-88 - Government official representing private client

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-88

Inquiry is made concerning the propriety of representing claimants in an action for damages against the State while serving as Speaker of the State Senate and Lieutenant Governor of the State.

The propriety of an attorney-public official representing a private client in a proceeding involving the public body he is elected to represent was first addressed by the Board in Formal Ethics Opinion 81-F-4. The opinion adopted the "New Jersey Rule" set forth by the New Jersey Supreme Court in the case of In Re: A & B, 44 N.J. 331, 209 A.H.2d 101 (1965) and the case of In Re: Dolan, 76 N.J. 1, 384 Atl.2d 1076 (1978) as follows:

... an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests ... Where the public interest is involved, he may not represent conflicting interests even with the consent of all concerned....

... the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances, the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. 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....

... It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status and, hence, it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind ....

... Nonetheless, the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc. ....

... It is accordingly our view that such dual representation is forbidden even though the attorney does not advise either the municipality or the private client with respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest ....

Subsequent Formal Ethics Opinions of the Board have adopted the reasoning of the "New Jersey Rule." Formal Ethics Opinion 81-F-23 states that it is improper for a CityAttorney to defend a person prosecuted in Criminal Court by the City Police Department. Formal Ethics Opinion 83-F-41 states that it is improper to represent persons prosecuted by the County Sheriff's office when the attorney's associate is County Attorney. Formal Ethics Opinion 83-F-53 states that it is improper for a County Attorney to counsel the county in preparation of the county budget and also represent the sheriff and/or deputy sheriffs to increase their budget or salaries. Formal Ethics Opinion 83-F-57 states it is improper to represent a criminal defendant in state court on charges resulting from investigation and prosecution by the city police when the attorney's associate is City Attorney. Formal Opinion 83-F-58 states that it is improper for a judge of the County Juvenile Court to represent the County School Board in an action against the County Commissioner relative to the proper funding of the County School Board.

Ethics Opinion 186 of the American Bar Association states that a County Attorney may not represent a defendant in a criminal case. The opinion states:

The county attorney should not accept employment where his duties to his private client and his public duties may conflict either directly or indirectly. Furthermore, for the county attorney charged with public duties to accept employment adverse to this public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession. The county attorney ... should refrain from accepting such employment, as the interest of the accused for whom he appears and the interest of the county of which he is an officer are conflicting.

Ethics Opinion 1182 of the American Bar Association states that Disciplinary Rule 8-101(A)(2) of the Code of Professional Responsibility proscribes a lawyer using his public position to influence, or attempting to influence, a tribunal to act in favor of himself or of a client. The opinion reasons:

... a lawyer appearing before an administrative board, the compensation of whose members are fixed by the legislative or the appointment of whose members are either subject to approval by the Legislature or elected by the Legislature, is in a strong or powerful position 'to use his public position to influence, or attempt to influence,' the administrative board to act in his favor. His very appearance before such a board may be circumstantial evidence of such influence or attempt to influence ....

An attorney may not breach his fiduciary duty as a public official in the representation of private interests against the public body he represents. Therefore, the Speaker of the Senate and Lieutenant Governor of the State may not represent claimants in an action for damages against the State.

This 16th day of January, 1985.

ETHICS COMMITTEE:

C. T. Herndon, III

T. Maxfield Bahner

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD