Could a city alderman, city judge, city attorney, city prosecutor, or county sheriff's-department lawyer, or their law partners, represent private clients in courts or matters where officers of their governmental employer were witnesses?

Plain-English summary

A bar association representing about 60 attorneys, including a city alderman, city judge, city attorney, city prosecutor, and a lawyer who represented the county sheriff's department, asked the Board to address the ethical obligations of practicing attorneys elected, appointed, or employed by city or county governments, and the obligations of their law partners and associates. The opinion adopted what it called the "New Jersey Rule," first applied by the Board in Formal Ethics Opinion 81-F-4 and reaffirmed in 85-F-88: an attorney may not represent both a governmental body and a private client merely because of disclosure and consent, the attorney must immediately and fully disclose any conflict and withdraw from both representations where the public interest is involved, and dual representation is forbidden even where the attorney advises neither side on the matters at issue, because the dual representation itself is contrary to the public interest. The opinion traced this rule through a series of its own prior opinions, including 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 budget matters), and 83-F-57 and 83-F-58 (similar prosecutorial and judicial conflicts), and cited ABA Ethics Opinion 1182 for the principle that DR 8-101(A)(2) bars a lawyer from using a public position to influence a tribunal in the lawyer's or a client's favor.

Applying DR 5-105(D)'s vicarious disqualification rule (disqualification of one partner disqualifies the whole firm), the opinion answered a series of specific questions from the inquiring bar association with categorical "No" answers: a city alderman or the alderman's partners could not practice in city court or in county courts where city police officers were witnesses; a city attorney could not practice in those same courts or engage in business dealings with the city through a corporate entity; a city prosecutor or an associate of the city prosecutor could not practice in those courts (though either could represent defendants prosecuted by someone other than city police); and a lawyer representing the county sheriff, or that lawyer's partner, could not practice in any court where the sheriff or deputies were witnesses. The opinion allowed one narrower exception: a city judge, or that judge's partner or associate, could practice in county courts where city police officers were witnesses, but only in cases where the judge had no substantial responsibility as city judge.

Currency note

Vacated; set aside. Formal Ethics Opinion 86-F-107(a), issued June 10, 1987, vacated and set aside this opinion after the Tennessee Supreme Court's decision in State v. Jesse Jones rejected the Board's similarly sweeping per se rule in Opinion 83-F-41 as overbroad, replacing the per se approach with a case-by-case factual inquiry. The Board of Professional Responsibility separately vacated this opinion outright on September 11, 2015, "due to changes in the law or rules." This opinion was also issued in 1986, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. It is reproduced and summarized here only as a historical research record. For the Board's current approach, see Formal Ethics Opinion 86-F-107(a), as later modified by 2002-F-107(b).

Common questions

Q: Could a city attorney's law partner represent a criminal defendant prosecuted by the city police?

A: As originally issued, no. The opinion held that a city attorney's partners could not practice in county criminal court where city police officers were witnesses.

Q: Did this opinion remain in force?

A: No. It was vacated and set aside by Formal Ethics Opinion 86-F-107(a) less than a year later, after the Tennessee Supreme Court rejected this kind of categorical per se rule for governmental-attorney conflicts.

Q: What rule did the opinion apply to bar an entire law firm because of one partner's public office?

A: DR 5-105(D), the vicarious disqualification rule, under which a disqualified attorney's partners and associates were also disqualified from the same representation.

Background and rules framework

The opinion applied Canon 5 of the former Code of Professional Responsibility, DR 8-101(A)(2) (bar on using a public position to influence a tribunal), and DR 5-105(D) (vicarious disqualification), built on the "New Jersey Rule" the Board first adopted in Formal Ethics Opinion 81-F-4. The modern analogs are Model Rule 1.11 / Tennessee RPC 1.11 (special conflicts rules for current and former government officers and employees) and Model Rule 1.7 / Tennessee RPC 1.7 (conflicts of interest with current clients).

Citations and references

Rules of Professional Conduct (former Code):

• Canon 5 and DR 8-101(A)(2) (bar on a public official using the position to influence a tribunal). Modern analog: Model Rule 1.11 / Tennessee RPC 1.11
• DR 5-105(D) (vicarious disqualification). Modern analog: Model Rule 1.10 / Tennessee RPC 1.10

Other opinions cited:

• Tennessee Formal Ethics Opinions 81-F-4, 81-F-23, 83-F-41, 83-F-53, 83-F-57, 83-F-58, and 85-F-88 (the "New Jersey Rule" line of governmental-conflict opinions)
• ABA Ethics Opinion 1182 (DR 8-101(A)(2) bars using a public position 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 (one of the "New Jersey Rule" opinions this opinion catalogs)
• Tenn. Ethics Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case (vacates and sets aside this opinion)
• Tenn. Ethics Op. 85-F-88: Government Official Representing a Private Client Against the State (the "New Jersey Rule" opinion this one catalogs)
• Tenn. Ethics Op. 2002-F-107(b): Governmental Attorneys, Case-by-Case Conflicts
• Tenn. Ethics Op. 87-F-111: Vicarious Disqualification of a District Attorney's Staff

Source

• Landing page: https://www.tbpr.org/ethic_opinions/86-F-107

Original opinion text

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

86-F-107 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 86-F-107

A bar association, on behalf of its membership of approximately 60 attorneys, including 12 attorneys directly involved in the inquiry, requests an ethics opinion concerning the ethical obligations of practicing attorneys elected, appointed or employed by city or county governments, or public agencies or officials; and the ethical obligations of their associates.

Four members of the bar hold public offices of city alderman, city judge, city attorney and city prosecutor. One member of the bar represents the county sheriff's department in civil suits against the department. The city alderman is an elective office and the attorney elected to that office is a partner in a law firm of four lawyers. The city judge is elected by the city council and is associated with another lawyer in a professional corporation, and rents office space to another lawyer. The city attorney is appointed by the mayor and is a sole practitioner. The city prosecutor is appointed by the mayor and is associated in the practice of law with another lawyer. The attorney for the county sheriff's department is selected and employed by the county sheriff and is associated in the practice of law with another lawyer.

The city court by private act has concurrent jurisdiction with the county general sessions court. Misdemeanor cases are adjudicated, on waiver, in the city court by the city judge. Felony cases and misdemeanor cases not waived may be bound over to the county grand jury after a preliminary hearing by the city judge. Convictions of minor traffic offenses and misdemeanors in the city court may be appealed to the circuit court.

City employees discharged for cause may request a hearing before the city council. Members of the city council (aldermen) may only exercise their elective powers while the council as a whole is duly assembled.

Tennessee Formal Ethics Opinion 85-F-88 states that an attorney may not breach his fiduciary duty as a public official in the representation of private interests against the public body he represents and therefore the speaker of the Senate and Lieutenant Governor of the State may not represent claimants in an action for damages against the State. The opinion cites and adopts the "New Jersey Rule," 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 represents both interests...Where the public interest is involved, he may not represent conflicting interests even with 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...

The "New Jersey Rule" was first adopted by the Board in Tennessee Formal Ethics Opinion 81-F-4 in considering the propriety of an attorney-public official representing a private client in a proceeding involving the public body he is elected to represent. Subsequent Formal Ethics Opinions have adopted the reasoning of the "New Jersey Rule." Formal Ethics Opinion 81-F-23 states that it is improper for a city attorney 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 1182 of the American Bar Association states that Disciplinary Rule 8-101(A)(2) of the Code of Professional Responsibility proscribes a lawyer's 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 legislature 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...

The vicarious disqualification rule embodied in Disciplinary Rule 5-105(D) of the Code of Professional Responsibility provides that if an attorney is disqualified from employment and representation in a particular matter then any partner, associate or any other attorney affiliated with him is also disqualified from such employment.

The bar association has made specific inquiries the answers to which are set forth hereinbelow:

A. May the lawyer elected to the position of City Alderman, or his partners:

• Practice in the City Court? No

• practice in County Criminal Court where City Police officers are witnesses? No.

• Practice in County Civil Courts where City Police officers are witnesses? No.

B. May the lawyer appointed to the position of City Judge, his partner or his associate:

• Practice in County Criminal or Civil courts where City police officers are witnesses? Yes, but only in cases in which he had no substantial responsibility as City Judge.

C. May the lawyer appointed to the position of City Attorney:

• Practice in the City Court? No.

• Practice in County Criminal Court where City police officers are witnesses? No.

• Practice in County Civil Courts where City police officers are witnesses? No.

• Engage in business dealings with the City through a corporate entity of which he is the majority stockholder? No.

D. May the lawyer appointed to the position of City Court Prosecutor:

• Practice in County Criminal Court where City police officers are witnesses? No.

• Practice in County Civil Courts where City police officers are witnesses? No.

• Represent defendants who are prosecuted by prosecutors other than City policemen witnesses in County Criminal Court? Yes.

E. May the lawyer associated with the City Prosecutor:

• practice in the City Court? No.

• Practice in County Criminal Court where City police officers are witnesses? No.

• Practice in County Civil Courts where City police officers are witnesses? No.

• Represent defendants who are prosecuted by prosecutors other than City policemen witnesses in County Criminal Court? Yes.

F. May the lawyer representing the County Sheriff, or his partner, in cases in which the Sheriff or his deputies are not parties:

• Practice in any Criminal Court where the Sheriff or his deputies are witnesses? No.

• practice in any Civil Court where the Sheriff or his officers are witnesses? No.

This 26th day of September, 1986.

ETHICS COMMITTEE:

Jerry C. Colley

William R. Willis

Cecil D. Branstetter

APPROVED AND ADOPTED BY THE BOARD