Inquiry is made concerning the propriety of the county attorney
representing defendants charged with unlawful activity in cases wherein
the sheriff and/or deputy sheriffs are witnesses for the prosecution and the
county has precluded and prohibited the county attorney from representing
the sheriff and/or deputy sheriffs; and, precluded and prohibited the county
attorney from participating in discussions with or counseling the county in
any and all matters relating to the law enforcement efforts by or on behalf
of the county.
Tennessee Formal Ethics Opinion 83-F-57 holds that the vicarious disqualification rule of
the Code of Professional Responsibility prohibits representation of a criminal defendant
on charges resulting from investigation and prosecution by the city police when the
attorney's associate is city attorney.
The opinion states:
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
possibility of impairment of 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 Ethics Committee of the Board stated in Formal Ethics Opinion 83-F-53:
There is no inherent impairment of independent
professional judgment of an attorney representing the
county as delinquent tax attorney, counseling in preparation
of the county budget and fiscal matters unrelated to the county
law enforcement effort, preparation of capital outlay notes
and also representing criminal defendants prosecuted by
county law enforcement officers.
However, the above opinion, 83-F-53, holds that there is an inherent impairment of
independent professional judgment of an attorney 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 governmental entity is charged with the responsibility of providing a law
enforcement effort and is responsible to provide an adversarial system to administer
justice to those charged with unlawful activity. The attorney who counsels and serves the
governmental entity in providing the law enforcement effort and judicial system has an
inherent impairment of professional responsibility to the governmental entity and also to
the person charged when undertaking to represent both interests. The conflicting and
inconsistent interests and responsibilities cannot be waived or excused.
Therefore, the attorney representing the governmental entity may also represent
defendants charged with unlawful activity when law enforcement officers or employees
of the governmental entity are prosecutors or witnesses only in event the attorney is
precluded and prohibited from representing the law enforcement officers or employees;
and, is precluded and prohibited from participating in discussions or counseling with the
governmental entity in any and all matters relating to the law enforcement efforts or
judicial system of the governmental entity; and, provided the governmental entity has
actually obtained independent professional legal advice and counseling relating to its
responsibilities to provide law enforcement services and system of justice.
This 18th day of January , 1984.
O. B. Hofstetter, Jr.
F. Evans Harvill
William R. Willis
APPROVED AND ADOPTED BY THE BOARD