Can a court-appointed defense lawyer accept the appointment when the lawyer also personally represents the county sheriff, and the sheriff's deputies will testify for the prosecution against the indigent defendant?

Plain-English summary

The inquiring attorney currently represented the county sheriff in a civil suit against the sheriff and his professional liability insurance carrier, arising from the carrier's denial of coverage and failure to pay a prior civil-rights judgment against the sheriff, and had represented the sheriff in several other concluded matters, including the original civil-rights case, an insurance recovery suit for gunshot wounds suffered in the line of duty, a contractor breach-of-contract claim, DUI and traffic defense, and an ouster suit alleging drunkenness in office. The court had appointed the same attorney to defend an indigent criminal defendant. County law enforcement officers, including deputies, were expected to testify for the State on material facts in the criminal prosecution, including the defendant's alleged confession, discovery of the victim's body, and discovery of the murder weapon. The defendant, in the sheriff's custody, had been injured in a jailhouse altercation he attributed to the officers and had threatened a civil suit against one or more of the testifying officers.

The opinion applied Formal Ethics Opinion 83-F-56, which held it improper for an attorney defending law enforcement officers in alleged civil-rights violations to also defend persons charged with crimes where those officers are witnesses to disputed, conflicting, or material matters, explaining that where the public interest is involved, disclosure alone does not cure the conflict because the attorney may not represent conflicting interests even with everyone's consent; where the testimony at issue is not disputed or controverted, however, an attorney may accept the criminal case while the civil-rights action is pending. The opinion also cited Formal Ethics Opinion 83-F-57, which held it improper for an associate of a city attorney to represent a criminal defendant in state court on charges arising from a city police investigation where the officers are witnesses to material, investigative facts. Applying that framework, the opinion concluded it is unethical for the attorney to accept the court appointment while continuing to personally represent the sheriff, given the deputies' anticipated material testimony for the prosecution, and that the attorney should steadfastly decline the appointment.

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 lawyer who represents the sheriff also defend a criminal case where the sheriff's deputies will testify for the prosecution?

A: Not where the testimony involves disputed or material facts. The opinion held this creates a conflict that disclosure and consent cannot cure, and the attorney must decline the criminal appointment.

Q: Does it matter whether the deputies' testimony is disputed?

A: Yes. The opinion's governing precedent, 83-F-56, distinguishes disputed or controverted testimony (which creates the conflict) from undisputed testimony, where an attorney may accept the criminal case while a related civil-rights action against the officers is pending.

Background and rules framework

The opinion applied the Board's prior governmental-conflict opinions, Formal Ethics Opinion 83-F-56 (defense counsel for officers and for criminal defendants whose cases involve those officers as material witnesses) and 83-F-57 (city attorney associate defending a criminal case investigated by the city's own police). The modern correlate is Model Rule 1.7 (conflicts of interest: current clients), cited here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 83-F-56, conflict between defending law enforcement officers and criminal defendants whose cases involve those officers as witnesses
• Tennessee Formal Ethics Opinion 83-F-57, city attorney associate defending a criminal case investigated by the city's own police department

See also

• Tennessee Op. 83-F-56: Sheriff's Civil-Rights Counsel and Criminal Defense
• ISBA Op. 90-34: Law Firm Representing Municipality and Criminal Defendants Charged in That Municipality

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-92

Original opinion text

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

85-F-92 - Dual Representation of Criminal Defendant and Sheriff

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-92

Inquiry is made concerning the ethical propriety of representing a criminal defendant, upon appointment and assignment by the Court, and also personally representing the County Sheriff in a civil matter when County Deputy Sheriff will testify concerning material facts on behalf of the State in prosecution of the criminal case against the indigent defendant.

The inquiring attorney presently represents the County Sheriff in defense of a civil suit against the Sheriff and his professional liability insurance carrier. The suit arises from the denial of coverage by the insurance carrier and failure to pay a previous judgment rendered against the Sheriff in a civil rights case. The inquiring attorney also represented the Sheriff in defense of the original case. He has also personally represented the Sheriff in various legal matters which have been concluded, to-wit: A suit by the Sheriff against his insurance carrier to recover policy benefits resulting from gunshot wounds occurring in the line of duty; a breach of contract suit by the Sheriff and his wife against a contractor who remodeled their home; defending the Sheriff on charges of D.U.I. and running a red light; and, defending the Sheriff in an ouster suit alleging drunkenness in office.

It is anticipated that the Sheriff will not be a witness in the pending criminal case; however, it is possible. The county law enforcement officers are witnesses and will testify on behalf of the State concerning certain material facts in prosecution of the criminal charges against the defendant. Some of the facts and circumstances to be given in evidence at the trial by the county law enforcement officers relate to the defendant's alleged confession to the crime, discovery of the body of the victim and discovery of the murder weapon.

The defendant is in custody of the Sheriff at the county jail. While in custody, he became involved in an altercation with other inmates and sustained injuries. The defendant has threatened to bring a civil suit as a result of his injuries and has alleged that the law enforcement officers were responsible for the altercation. He has specifically threatened to bring suit against one or more of the officers who will testify in his criminal case.

The attorney has been appointed and assigned by the trial court to defend the accused and has inquired as to his ethical responsibilities in the matter.

Formal Ethics Opinion 83-F-56 states that it is improper for an attorney defending law enforcement officers in alleged civil rights violations, to also defend persons charged with crimes wherein the law enforcement officers are witnesses to disputed, conflicting or material matters at issue. The opinion 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....

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.

However, where no conflict does exist, and where the testimony ... 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 ... so long as the attorney has no conflict as set forth above.

Formal Ethics Opinion 83-F-57 states that it is improper for an associate of the city attorney to represent a criminal defendant in state court on charges resulting from investigation and prosecution by the city police department wherein the police officers are witnesses to material and investigative facts relating to criminal charges.

It is unethical to represent a criminal defendant, upon appointment and assignment by the Court, and also personally represent the County Sheriff in a civil matter when County Deputy Sheriffs will testify concerning material facts on behalf of the State in prosecution of the criminal case against the indigent defendant. The attorney should steadfastly decline such an appointment.

This 6th day of May, 1985.

ETHICS COMMITTEE:

Edwin C. Townsend, Chairman

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD