83-F-56 - Representing Criminal Defendants




Inquiry is made concerning the propriety of representing defendants charged with crimes in cases wherein the Sheriff and/or officers of the Sheriff's Department are witnesses for the prosecution while also representing the Sheriff in defense of alleged civil rights violations wherein the officers will be material witnesses.

The Supreme Court of Kentucky, in review of an ethics opinion adopted by the Board of Governors of the Kentucky Bar Association, In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, unanimously held:

The opinion states that an attorney who represents the Fraternal Order of Police in grievances and other civil matters may not practice criminal law in the same jurisdiction.

This court recognizes the American Bar Associations's Code of Professional Responsibility as a sound statement of the standards of conduct required of members of the bar.

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.

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.' As we said in O'Hara v. Ky. Bar Association, Ky., 535 SW 2d 83 (1975), 'The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided ....'

The opinion of the Board of Governors is affirmed.

The above opinion has been cited in Tennessee Formal Ethics Opinion 81-F-18 which holds that an attorney may not represent a criminal defendant in instances where it may alienate or jeopardize the corporate representation of the Law Enforcement Officers Association; and, has also been cited in Tennessee Formal Ethics Opinion 83-F-41 which holds that a County Attorney cannot represent criminal defendants prosecuted by the county officers.

The "New Jersey Rule" which has been cited and adopted in Tennessee Formal Ethics Opinion 81-F-4 states:

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.

The public interest is involved in 42 USC 1983 actions against the Sheriff for alleged civil rights violations and also involved in prosecution and defense of persons charged with crimes. Where the defense of sheriffs for alleged civil rights violations and the defense of persons charged with a crime involves the sheriff or deputies who are material witnesses in each instance and involves disputed or conflicting testimony which fetters the judgment or loyalty of the attorney to each client, there is a conflict and it would be improper for the attorney to accept defense of the criminal cases where such conflict exists. The impropriety exists for the duration of the representation of the sheriff and extends through the duration of any appeal thereof and applies to all members of the firm.

However, where no conflict does exist and where the testimony of the common witnesses is not disputed or controverted, an attorney may accept criminal cases while such civil rights action is pending.

The fact that a member of the Sheriff's Department is a witness in a criminal action does not, of itself, preclude an attorney from accepting employment of a criminal defendant and at the same time continue to represent the sheriff in a civil rights action or accept such employment in a civil rights case, so long as the attorney has no conflict as set forth above.

The inquiring attorney states that the sheriff is a nominal defendant in the 42 USC 1983 civil rights violation action due to the fact that the sheriff's liability insurance carrier employed him to represent the sheriff.

The fact that the sheriff's liability insurance carrier employed the attorney to represent the sheriff does not make the sheriff a nominal party. Attorneys employed by an insurance carrier to represent their insured have a direct attorney-client relationship with the insured. The attorney is obligated to represent the client-insured zealously and owes his complete loyalty to the insured.

This 22nd day of September, 1983.


Edwin C. Townsend
W. J. Flippin
Henry H. Hancock