81-F-15 - Public Attorney

FORMAL ETHICS OPINION 81-F-15

An inquiry has been made as to whether or not a law firm is precluded
from representing clients engaged in coal mining in this state regarding a
notice of violation or cessation order issued by the federal agency, Office
of Surface Mining, when one of the law partners is a member of a similar
state agency, Board of Reclamation Review.


Surface mining in Tennessee is regulated by both federal and state law. The federal law
provides for an interim program during which both federal and state regulations apply.
The federal law is enforced by the Office of Surface Mining whose agents and inspectors
may issue a Notice of Violation and in instances of imminent danger to the environment,
or when the subject of a Notice of Violation has not been corrected, may issue a cessation
order. The enforcement of the federal regulations occur through the Office of Surface
Mining, an Administrative Law Judge, the Board of Surface Mining and Reclamation
Appeals and the United States District Court, all federal agencies.


No member of the law firm is associated in any way with the enforcement of the federal
surface mining regulations.


State regulation of surface mining is enforced through state law by state inspectors who
are empowered to notify holders of mining permits in writing of any violation of the state
law. Review of a state notice of violation is through the Commissioner of Conservation,
the Board of Reclamation Review and the Chancery Court, all state agencies.
A partner of the law firm is a member of the State Board of Reclamation Review and he
is precluded from having a financial interest in the mining industry or in any related
business.


There is no jurisdiction in the State Board for review of a notice of violation or cessation
order issued by federal inspectors; however, an act that is in violation of federal law in
most instances would also be a violation of state law.


The attorney, as a member of the Board of Reclamation Review, participates in
adjudicatory hearings concerning regulations relating to surface mining, reclamation of
surface mined lands, control of pollution of water and soil affected by surface mining to
achieve soil stabilization, control soil erosion and obliterate the scars of stripping
operations.


The acceptance of a quasi-judicial position which calls upon the lawyer to conduct
hearings and determine issues concerning violations of state
strip mining regulations bars him and members of his firm from acting as attorney for
individuals or firms charged with similar federal violations. The public and private
interests are inconsistent, diverse, discordant and incompatible. Such a practice would
not only diminish public confidence in the administration of justice at both the federal
and state level, but would produce serious conflict between the private interests of the
lawyer representing clients and the public interest of the lawyer adjudicating similar
matters. The public and private duties are incompatible and the prestige of the public
office diverted to the private benefit and thereby demeaned.


Ethics Opinions 16, 30, 34, 77, 118 and 134 of the American Bar Association Committee
on Professional Ethics (ABA) relate to adverse influences and conflicting interests and
pass on questions concerning the propriety of the conduct of an attorney who is a public
officer in representing private interests adverse to those of the public body which he
represents. The principles applied in those opinions is that an attorney holding public
office should avoid all conduct which may tend to lead the layman to conclude that the
attorney, or law firm, is utilizing a public position to further the professional success or
personal interests of the attorney or law firm.


Ethics Opinion 49 of the ABA has held that a lawyer who has occupied a judicial position
or acted in a judicial capacity should refrain from accepting employment which might
reasonably appear to involve similar facts upon which he acted in a judicial capacity.
Ethics Opinion 30 of the ABA points out that an attorney in the public employ should
conduct himself so as to remain above all suspicion, even at personal sacrifice.


It is improper for a member of the law firm to defend private interests of individuals or
firms charged with violations of similar federal regulations adverse to the interests of the
state agency or public body which a member of the firm represents in a quasi-judicial
capacity.


The question of whether or not the member of the firm is precluded from serving on the
State Board due to a financial interest in the mining industry or in any related business is
a legal question and is not the proper subject matter of an ethical inquiry.

This 26th day of August , 1981.

ETHICS COMMITTEE:

Joseph G. Cummings
F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THEĀ BOARD