83-F-41 - County Attorney




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 Rule 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.


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