83-F-57 - City Attorney Associate

FORMAL ETHICS OPINION 83-F-57


Inquiry is made concerning the propriety of representing a criminal
defendant in state court on charges resulting from investigation and
prosecution by the city police department when the attorney's associate is
city attorney.


Five members of the city police department were material eye witnesses to events
immediately preceding a homicide. The accused defendant is a controversial former
public official of the county. One of the city police officers is the affiant to the criminal
warrant which alleges material facts relating to the events before the homicide and to
investigative facts after the homicide. The case has received widespread public attention
including considerable coverage by the television media.
The city attorney, in this instance, is elected by the board of mayor and aldermen. His
duties defined in the city charter are to attend meetings of the board and give such legal
counsel as required by the board, to prepare ordinances, to attend all litigation wherein the
city may be a party, and to transact such other business related to city government as may
be imposed by ordinance. Neither the city charter nor any city ordinances charge the city
attorney with the duty or responsibility of advising the city police department concerning
the prosecution of criminal cases in state court or advising the police department
concerning any investigation or prosecution of criminal activity or related matters.
The city police department relies upon the office of the local district attorney general for
legal advice in connection with criminal activity. The city attorney is not consulted for
advice as to probable cause relating to criminal proceedings, advice as to search warrants
or any other legal counsel in connection with investigations or related duties performed
by the police department. The only way the city attorney becomes involved in matters
relating to criminal activities is in connection with civil matters which may arise; such as,
civil rights actions, confiscation proceedings or other civil proceedings arising from
actions or activities of the city police.
Tennessee Formal Ethics Opinion 81-F-18 states that an attorney representing the
Tennessee Law Enforcement Officers Association should not represent criminal
defendants when the representation may alienate officers or directors of such association
or jeopardize the corporate representation. The opinion cites In Re: Advisory Opinion of
Kentucky Bar Association, 613 SW 2d 416, jurisdiction and quotes the opinion as
follows:
83-F-57 Page 2
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.
Tennessee Formal Ethics Opinion 83-F-23 holds that a city attorney cannot defend a
person prosecuted in criminal court by the city police department and further quotes In
Re: Advisory Opinion of Kentucky Bar Association, (supra) 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 ....
Tennessee Formal Ethics Opinion 83-F-41 holds that the public cannot waive the
appearance of impropriety inherent in the county attorney representing criminal
defendants prosecuted by county law enforcement officers and pursuant to the vicarious
disqualification provision of Disciplinary Rule 5-105(D) of the Code of Professional
Responsibility. The partner or associate of the county attorney is also prohibited from
such representation.
Tennessee Formal Ethics Opinion 83-F-53 holds that there is an inherent impairment of
independent professional judgment of an attorney in representing the sheriff and/or
deputy sheriffs to increase the sheriff's budget or deputies' salaries, and defending the
county in denial of beer permits where collaboration with the sheriff is required or the law
enforcement effort of the county is involved, and also representing criminal defendants
prosecuted by county law enforcement officers.
The public is unable to waive the appearance of impropriety in matters such as this.
There is an apparent impairment of independent professional judgment of the attorney
and his duty to represent the client zealously by vigorous cross-examination of the police
officers, possibly alienating them or discrediting their testimony. The public also has a
right to expect that the adversarial system of justice will perform to the fullest extent and,
therefore, is unable to waive the
83-F-57 Page 3
possibility of impairment of the vigorous prosecution of the case by the city police
officers due to the attorney's associate being in a position of counseling and advising the
board of mayor and aldermen who have authority and control over the city police
department.
The appearance of impropriety and vicarious disqualification rules of the Code prohibit
the attorney from representing the criminal defendant prosecuted by the city police
department when the attorney's associate is the city attorney.
This 24th day of October , 1983.
ETHICS COMMITTEE:
Edwin C. Townsend
Henry H. Hancock
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD