Could a Tennessee county commissioner who is also a lawyer represent criminal defendants prosecuted by the county's own law enforcement officers?

Plain-English summary

The opinion addressed whether a lawyer could simultaneously serve as a county commissioner, voting and making decisions regulating and managing the county's law enforcement program, while also representing criminal defendants prosecuted by the county's law enforcement officers. It drew on the Board's "New Jersey Rule" line of opinions, including Formal Ethics Opinion 85-F-88's statement that an attorney may not breach a fiduciary duty as a public official by representing private interests against the public body the attorney represents, and that no attorney holding public office should let anyone attempt to gain an advantage from the attorney's official status. The opinion catalogued the Board's related governmental-conflict opinions: 81-F-23 (city attorney may not defend persons prosecuted by city police), 83-F-41 (improper to represent persons prosecuted by the sheriff's office when the attorney's associate is county attorney), 83-F-53 (county attorney conflict on sheriff's budget matters), 83-F-57 (city-attorney associate conflict in criminal defense), and 83-F-58 (juvenile court judge representing the school board against the county commission).

Reasoning that the public body a commissioner serves is obligated to provide an effective law enforcement program, and that the public body and a criminal defendant prosecuted by that program have diverse interests, the opinion concluded that the commissioner-attorney's fiduciary duty as a public official prohibited representing criminal defendants prosecuted by county law enforcement officers, since both the county and the defendant were entitled to the attorney's independent judgment and loyalty free of any compromising influence.

Currency note

This opinion was issued in 1986, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. This opinion's per se conclusion was one of the line of governmental-conflict opinions the Board later overruled to the extent inconsistent with a case-by-case factual test, adopted in Formal Ethics Opinion 86-F-107(a) (1987) after the Tennessee Supreme Court rejected similarly sweeping per se rules in State v. Jesse Jones. Treat this page as historical context illustrating the Board's earlier categorical approach, not current guidance. Verify against current rules and opinions, including 86-F-107(a) and its later modification, before relying on any conclusion stated here.

Common questions

Q: Could a lawyer who served as a county commissioner take criminal defense cases prosecuted by the county sheriff's office?

A: As originally issued, no. The opinion held this representation breached the commissioner's fiduciary duty as a public official to the county.

Q: What reasoning did the opinion give for the prohibition?

A: The opinion reasoned that the county, which the commissioner helps govern in providing law enforcement, and a criminal defendant prosecuted by that law enforcement program have diverse interests, and a public official may not represent private interests against the public body the official serves.

Q: Does this opinion still state the Board's current approach?

A: No. Its per se conclusion was part of a line of opinions the Board overruled to the extent inconsistent with the case-by-case factual test adopted in Formal Ethics Opinion 86-F-107(a) the following year.

Background and rules framework

The opinion applied the Board's "New Jersey Rule" line of governmental-conflict opinions, grounded in the fiduciary duty a lawyer-public official owes to the governmental body the lawyer serves. The modern analog is Model Rule 1.11 / Tennessee RPC 1.11 (special conflicts rules for current and former government officers and employees).

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 85-F-88 (public official's fiduciary duty against representing private interests adverse to the public body)
• Tennessee Formal Ethics Opinions 81-F-23, 83-F-41, 83-F-53, 83-F-57, and 83-F-58 (the Board's related governmental-conflict opinions)

See also

• Tenn. Ethics Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case (later overrules this opinion's per se approach)
• Tenn. Ethics Op. 85-F-88: Government Official Representing a Private Client Against the State (the fiduciary-duty rule this opinion applies)
• ME Ethics Op. 29: County Commissioner-Lawyer vs. District Attorney
• Ohio BPC Op. 1988-020: County Commissioner-Lawyer Practicing in the County's Court of Common Pleas

Source

• Landing page: https://www.tbpr.org/ethic_opinions/86-F-105

Original opinion text

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

86-F-105 - County Commissioner representing criminal defendants

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 86-F-105

Inquiry is made concerning the propriety of serving as a County Commissioner, voting and making decisions regulating and managing the county's law enforcement program and also representing criminal defendants prosecuted by county law enforcement officers.

Tennessee Formal Ethics Opinion 85-F-88 states that an attorney may not breach his fiduciary duty as a public official in representation of private interests against the public body he represents. The opinion prohibits the Speaker of the Senate and Lieutenant Governor of the State from representing claimants in an action for damages against the State. The opinion states:

---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.

Formal Ethics Opinion 81-F-23 states that it is improper for a city attorney to defend a person prosecuted by the City Police Department. 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. 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. 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. 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 proper funding of the county school board.

The public body which the attorney serves as an elected representative of the people is obligated to provide the citizens with an effective law enforcement program. The public body and criminal defendants have interests which are diverse. Each has the right to the independent judgment and loyalty of the attorney-commissioner free of any impairment or compromising influences. The attorney may not breach his fiduciary duty as a public official in representation of private interests against the public body he represents and is, therefore, prohibited from representing criminal defendants prosecuted by county law enforcement officers.

This 4th day of August, 1986.

ETHICS COMMITTEE:

C. T. Herndon III, Chairman

Michael E. Callaway

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD