TNBPR June 10, 1987

After Tennessee courts rejected blanket per se rules for government-lawyer conflicts, how does the Board decide whether a governmental attorney or public official, or a law partner, has a disqualifying conflict?

Q: What triggered the Board's change in approach?

The Tennessee Supreme Court's decision in *State v. Jesse Jones*, which found the Board's similarly sweeping per se rule in Opinion 83-F-41 overbroad and held that conflicts must be examined case by case rather than by blanket pronouncement.

Short answer: The opinion vacated and set aside Formal Ethics Opinion 86-F-107's sweeping per se prohibitions on governmental attorneys, public officials, and their associates representing other clients, following the Tennessee Supreme Court's decision in State v. Jesse Jones rejecting the Board's similarly sweeping per se rule in Opinion 83-F-41 as overbroad. The opinion held that in matters involving governmental interests and differing interests, whether a conflict of interest exists is a factual question turning on whether the attorney's influence was used to affect the outcome, or whether the attorney's professional judgment was in fact affected by the public-official or governmental-attorney interest, with no presumption of impropriety. Prior opinions conflicting with this case-by-case approach were overruled to that extent. The opinion was later modified by 2002-F-107(b) and vacated outright by the Board on September 11, 2015.

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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Nine city attorneys, four county attorneys, two city commissioners (including a mayor), a county commissioner, a city judge, a city prosecutor, the Tennessee Municipal Attorney's Association, and the Tennessee Municipal League all asked the Board to reconsider Formal Ethics Opinion 86-F-107. They argued the opinion was unduly oppressive in the ethical responsibilities it placed on governmental attorneys and public officials, that applying the vicarious disqualification rule to their partners and associates was an undue burden, and that the opinion could prevent governmental entities from obtaining part-time or as-needed attorneys, imposing financial hardship on cities and counties. The provision drawing the most criticism barred governmental attorneys or public officials, and their associates, from representing other clients whenever police officers or other agents of the public entity were material witnesses.

The opinion noted that the Board had issued 108 Formal Ethics Opinions interpreting Canon 5 and DR 8-101 to bar governmental attorneys, public officials, or their associates from private employment by clients before the governmental body they represented, from representing clients where government agents were material witnesses, from representing government employees against the governmental entity, or from defending clients in courts the governmental entity operated. The opinion then described the Tennessee Supreme Court's March 10, 1987 decision in State of Tennessee v. Jesse Jones, In Re: Larry S. Banks, Attorney, which reviewed the validity of the Board's Formal Ethics Opinion 83-F-41 (barring county attorneys from representing criminal defendants prosecuted by county officers) and found it overbroad, holding that actual and perceived conflicts of interest cannot be resolved by sweeping blanket pronouncements and that each incident must be examined case by case.

In light of the reconsideration requests and the Jesse Jones holding, the opinion vacated and set aside Formal Ethics Opinion 86-F-107. It replaced the per se approach with a factual test: in all matters involving governmental interests and differing interests, whether a conflict of interest exists depends on whether the attorney's influence was used to affect the outcome or decision in the matter, or whether the attorney's professional judgment on behalf of a client was or will be in fact affected by the attorney's interest as a public official or governmental attorney, with no presumption of impropriety. The opinion overruled prior opinions to the extent they conflicted with this case-by-case approach.

Currency note

This opinion was issued in 1987, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. It was later modified by Formal Ethics Opinion 2002-F-107(b), which removed the question of district attorneys and other state prosecutors representing criminal defendants (now addressed by Opinion 2002-F-146) while leaving the rest of this opinion's case-by-case approach in effect. The Board vacated this opinion outright on September 11, 2015, "due to changes in the law or rules." Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Did this opinion keep the strict per se bars from the earlier opinion on governmental-attorney conflicts?

A: No. The opinion vacated and set aside Formal Ethics Opinion 86-F-107's per se rules, replacing them with a case-by-case factual analysis.

Q: What triggered the Board's change in approach?

A: The Tennessee Supreme Court's decision in State v. Jesse Jones, which found the Board's similarly sweeping per se rule in Opinion 83-F-41 overbroad and held that conflicts must be examined case by case rather than by blanket pronouncement.

Q: How did the opinion define when a governmental-attorney conflict actually exists?

A: As a factual question: whether the attorney used influence to affect the outcome of the matter, or whether the attorney's professional judgment for a client was in fact affected by the attorney's public-official or governmental-attorney interest, with no presumption of impropriety.

Q: Is this opinion still in force today?

A: No. It was modified by Opinion 2002-F-107(b) in 2002 and vacated outright by the Board on September 11, 2015. It is preserved here as a historical research record of how Tennessee's approach to governmental-attorney conflicts developed.

Background and rules framework

The opinion applied Canon 5 and DR 8-101 of the former Code of Professional Responsibility, as interpreted in a line of prior Board opinions, in light of the Tennessee Supreme Court's holding in State v. Jesse Jones. 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 (governmental attorney and public official conflicts). Modern analog: Model Rule 1.11 / Tennessee RPC 1.11

Cases:

State of Tennessee v. Jesse Jones, In Re: Larry S. Banks, Attorney, 726 S.W.2d 515 (Tenn. 1987), rejecting a per se rule for governmental-attorney conflicts as overbroad

Other opinions cited:

Tennessee Formal Ethics Opinion 86-F-107 (vacated and set aside by this opinion)
Tennessee Formal Ethics Opinion 83-F-41 (the per se rule found overbroad in Jesse Jones)
Tennessee Formal Ethics Opinions 81-F-23, 83-F-53, 83-F-56, 83-F-57, 83-F-58, 84-F-59, 84-F-60, 85-F-83, 85-F-88, 85-F-92, and 86-F-105 (the Board's prior line of governmental-conflict opinions, overruled to the extent inconsistent with this opinion)

Source

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

Original opinion text

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

86-F-107(a) - Public Official Attorneys and their associates

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 86-F-107(a)

Requests for reconsideration of Formal Ethics Opinion 86-F-107 have been made by nine City Attorneys, four County Attorneys, two City Commissioners including a Mayor, one County Commissioner, one City Judge, one City Prosecutor, the Tennessee Municipal Attorney's Association and the Tennessee Municipal League.

The contentions of the parties requesting reconsideration are that the opinion is unduly oppressive in placing extraordinary ethical responsibilities on attorneys serving as governmental attorneys or public officials; and, that application of the vicarious disqualification rule also places an undue burden on the partners and associates of attorneys serving as governmental attorneys or public officials. It is also contended that the opinion may effectively prevent governmental entities from obtaining part-time attorneys or attorneys on an as-needed basis thereby imposing disastrous financial hardships on almost every city and county government in the state.

The portion of the opinion which is most critically attacked is the prohibition of governmental attorneys or public officials, and their associates, from representation of other clients when police officers or other agents or the public entity are material witnesses in the legal matter.

The Board has previously issued 108 Formal Ethics Opinions pursuant to Section 26 of Tennessee Supreme Court Rule 9. Several of these opinions relate to governmental interests and differing interests, to-wit: 81-F-23, 83-F-41, 83-F-53, 83-F-56, 83-F-57, 83-F-58, 84-F-59, 84-F-60, 85-F-83, 85-F-88, 85-F-92, 86-F-105, and 86-F-107.

In these opinions the Board has interpreted Canon 5 of the Code of Professional Responsibility and the Disciplinary Rules thereunder, and also DR 8-101, as prohibiting governmental attorneys or attorney-public officers, or their associates, from private employment of clients before the governmental body he represents, representing clients in criminal or civil matters wherein government agents or employees are material witnesses, representing government agents or employees against the governmental entity, or defending clients in the court(s) operated by the governmental entity.

On March 10, 1987 the Supreme Court of Tennessee, in the case of State of Tennessee vs. Jesse Jones, In Re: Larry S. Banks, Attorney, 726 S.W.2d, 515, passed upon the validity of Ethics Opinion 83-F-41. Ethics Opinion 83-F-41 declared that county attorneys cannot represent criminal defendants prosecuted by county officers. The Court found Ethics Opinion 83-F-41 to be overbroad, stating that actual and perceived conflicts of interest cannot be dealt with by such sweeping blanket pronouncements, and that each incident should be examined and determined on a case-by-case basis.

Therefore, in consideration of the requests for reconsideration, and the holding of the Supreme Court of Tennessee in the above cited case, Formal Ethics Opinion 86-F-107 is vacated and set aside.

In all matters involving governmental interests and differing interests the question of a conflict of interest is a factual one depending upon the use of the attorneys influence to affect the outcome or decision in the particular matter under consideration; or, whether the attorney's professional judgment on behalf of a client was or will be in fact affected by his interest as a public official or governmental attorney. There is no presumption of impropriety.

To the extent that the prior opinions cited herein conflict with this interpretation they are overruled.

This 10th day of June, 1987.

William R. Willis, Jr.

Henry R. Hancock

Cecil D. Branstetter

G. Wilson Horde

Charles T. Herndon, III

Michael E. Callaway

Jerry C. Colley

W. J. Flippin

Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD

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