85-F-83 - County Attorney

FORMAL ETHICS OPINION 85-F-83


Inquiry is made concerning the propriety of a County Attorney assisting a County
official in filing a pro se petition against the County Executive and assisting the
parties in preparing and executing an agreed pro se order granting salary increases
to the deputy clerks.


The County Attorney proposes to draft, prepare and file a petition on behalf of the County Court
Clerk against the County Executive, pursuant to TCA 8-20-101 et seq., seeking salary increases
for the deputy clerks. In addition, he will prepare and assist in the execution and filing of an
agreed order approved by the parties. The name of the County Attorney will not appear as
attorney of record for either party, nor will his name appear on the documents as attorney for
either party.
In reference to assisting pro se litigants, American Bar Association Informal Opinion 1414 states:
Extensive undisclosed participation by a lawyer ... that permits the
litigant falsely to appear as being without substantial professional
assistance is improper ... the practice has been condemned in Klein
v. H. N. Whitney, Goodby & Co., 341 F.Supp. 699 (S.D.N.Y.
1971) and in the related case of Klein v. Spear, Leeds & Kellogg,
309 F.Supp. 341 (S.D.N.Y. 1970).
Questions concerning the impairment of independent professional judgment and waiver of
conflicts of interests by public entities are also material to the inquiry. Tennessee Formal Ethics
Opinion 83-F-53 addresses these matters as follows:
It is improper for the attorney to counsel the county in preparation
of the county budget and also represent the sheriff and/or deputy
sheriffs to increase the budget or salaries. This is an actual conflict
of interest. Tennessee Formal Ethics Opinion 83-F-41 holds that it
is clear that the public cannot waive the appearance of impropriety
in matters such as conflicts of interests. Therefore, in such
instances, the conflict of interest cannot be waived.
The County Attorney is the agent, servant and employee of the county entity, the legislative body,
which is charged with conducting the financial affairs
85-F-83 Page 2
of the county. There is an impairment of independent professional judgment when the County
Attorney attempts to aid, counsel, advise or assist a county official in seeking salary increases
which are financed by county funds. There can be no waiver of the conflict when the public
interests are involved.
It is, therefore, improper for the County Attorney to assist a County official in filing a pro se
petition against the County Executive and to assist the parties in preparing and executing an
agreed pro se order granting salary increases to the deputy clerks.
This 2nd day of January , 1985.
ETHICS COMMITTEE:
Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD