81-F-4 - County Attorney

FORMAL ETHICS OPINION 81-F-4


Under date of October 17, 1980, the Ethics Committee of the Disciplinary
Board of the Supreme Court of Tennessee received a request from a law
firm in Hamilton County for a formal ethics opinion pursuant to Rule 42,
Section 26. Under date of November 21, 1980, Disciplinary Counsel
issued an Advisory Ethics Opinion No. 80-A-47 in view of the fact that the
request posed hypothetical questions rather than specific factual situations.
Subsequently, on December 6, 1980, the firm reiterated its request for a
formal ethics opinion, setting out therein specific factual situations for
consideration of the Ethics Committee.


The request concerned generally whether or not a member of the law firm could serve as
county attorney while his firm engaged in a comprehensive general practice, a
considerable portion of which involved the representation of land developers in the
county.


Answer to these questions is generally found in Disciplinary Rule 5-105 of the Code of
Professional Responsibility, together with the ethical considerations thereunder which
have been adopted by the Supreme Court of Tennessee.


The Ethics Committee adopts what we will call the "New Jersey Rule" as set forth in the
1965 case of In Re: A. & B., 44 N.J. 331, 209 Atl.(2d) 101, and the 1978 case of In Re:
Dolan, 76 N.J. 1, 384 Atl.(2d) 1076. We quote from the former case 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 represent both interests ...
'Where 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.'


1. The first question presented is, "Is the firm disqualified from representing in any
manner all land developers operating in Hamilton County, any persons who contract with
the County, the recipients of appropriations from the County, or any other types of present
or potential clients, because of our representation of Hamilton County?" Following that,
the firm's letter of request states, "If Tennessee were to have the prophylactic rule like that
in New Jersey, and if its broadest interpretation were followed in Tennessee, we would
have conflicts of interest which could not be resolved by our continued representation of
Hamilton County." We believe the answer to this question in the affirmative then
becomes self-evident. This would not disqualify representation of such clients in
development of land outside the county or within municipalities inside the county not
regulated in any way by the county.


2. The second question is, "May the firm represent other clients before county
officials and agencies, with regard to contracts, and in other matters (except litigation)
affecting Hamilton County when the County is represented by other counsel with respect
to whom the firm has no supervisory or other responsibility?" The adoption of the New
Jersey Rule prohibits this type representation since it is all too easy for a client to attempt
to gain some advantage by virtue of the official status of his counsel; that is, retaining the
county attorney even though the county in that particular matter may be represented by
other counsel.


3. The third question is, "May the firm represent clients in matters not directly
affecting Hamilton County before the Planning Commission, the Air Pollution Control
Bureau, and other local governmental agencies which are the joint creation of municipal
and Hamilton County governments?" Adoption of the New Jersey Rule prohibits such.
Since the legal advice of the county attorney is available to such bodies, he would have
special influence with them by virtue of his relationship to them.


4. The next question is, "May the firm represent, both in litigation and in matters not
involving litigation, clients whose interests differ from that of the State of Tennessee?"
We do not deem it a conflict of interest for the county attorney in his private capacity to
represent clients whose interests conflict with those of the State, so long as no interest of
the county government is directly involved, and so long as the official duties of the
county attorney are in no way related to the matter or litigation.


5. The next and last question is, "May the firm represent, both in litigation and in
matters not involving litigation, clients whose interests differ from that of the City of
Chattanooga and other municipalities?" On the face of this question, we see no conflict
of interest in such representation, and the answer would be the same as that to question No. 4.


This 14th day of January , 1981.


ETHICS COMMITTEE:


Joseph G. Cummings, Sr.
F. Evans Harvill
John R. Rucker

APPROVED AND ADOPTED BY THE BOARD