83-F-41 - County Attorney

FORMAL ETHICS OPINION 83-F-41

Inquiry is made concerning the propriety of representing criminal
defendants prosecuted by the County Sheriff and deputies when the
attorney's associate is the County Attorney.


Tennessee Formal Ethics Opinion 81-F-4 adopted the "New Jersey Rule" and quoted the
New Jersey Supreme Court as follows:


... 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.---


In Re: A&B., 44 N.J. 331, 209 Atl. (2d) 101.
Tennessee Formal Ethics Opinion 81-F-18 held that in the event representing a criminal
defendant may alienate or jeopardize the corporate representation of the Law
Enforcement Officers Association, then such representation would be prohibited. The
opinion quotes The Kentucky Supreme Court as follows:
It is fundamental that energetic representation of criminal
defendants often entails vigorous cross-examination of
police officers with an eye to discrediting their testimony.
Presented with the dilemma of alienating a group of police
officers on the one hand and providing a criminal defendant
with the most energetic possible defense on the other, the
attorney faces a conflict which seriously endangers his
ability to zealously represent his client as is required by
Canon 7 of the Code of Professional Responsibility.In Re: Advisory Opinion of Kentucky Bar Association, 613
S.W. (2d) 416.


Tennessee Formal Ethics Opinion 81-F-23 held that it was improper for a City Attorney
to defend a person being prosecuted in Criminal Court by the City Police Department.
The opinion further quoted the Kentucky Supreme Court as follows:


By its very nature, criminal defense is an area of law that is
subjected to intense public scrutiny. The public demand for
professional independence is great. Canon 9 of the Code
states as follows: 'A lawyer should avoid even the
appearance of professional impropriety.'--The point is not
whether impropriety exists but that any appearance of
impropriety is to be avoided ....


In Re: Advisory Opinion of Kentucky Bar Association, supra.
It is clear that the public cannot waive the appearance of impropriety inherent in the
County Attorney representing criminal defendants prosecuted by the County law
enforcement officers. Thus, the County Attorney cannot represent criminal defendants
prosecuted by the County officers. Therefore, pursuant to the vicarious disqualification
provision of Disciplinary RuleĀ 5-105(D) of the Code of Professional Responsibility, the partner or associate of the
County Attorney is also prohibited from such representation.

This 14th day of April , 1983.

ETHICS COMMITTEE:

F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis

APPROVED AND ADOPTED BY THE BOARD