Inquiry is made regarding the ethical propriety of part-time Assistant District Attorneys’ representation of criminal defendants within the same judicial district.
The inquiry of the Shelby County District Attorney and several part-time Assistant District Attorneys for said county presents the following facts:
City attorneys in the County’s municipal courts are also sworn in as part-time assistant district attorneys. These part-time Assistant District Attorneys prosecute all state criminal actions set in any municipal court within the county where the municipality provides sufficient personnel to the District Attorney for that purpose, pursuant to T.C.A. §8-7-103(1). A number of these part-time assistant district attorneys who prosecute state criminal matters in the municipal courts, also represent criminal defendants in the County’s General Sessions and Criminal Courts. We believe the current representation of criminal defendants as set forth in the inquiry is ethically inappropriate.
Both the American Bar Association and this Board have reiterated this long-standing principle in many prior Ethics Opinions. In ABA Formal Ethics Opinion 30 (1931), the ABA concluded that a prosecutor in one state could not ethically defend a defendant in another state. While these are not the precise facts as included within the instant inquiry, the rationale of this, and later opinions, compels the same result. In Opinion 30, the ABA believed that:
Other evils, detrimental to the proper enforcement of criminal laws, are not difficult to conceive, were prosecutors also acting as defenders of those accused of crime. Subjectively, the effect of such a practice must, in our opinion, be harmful to the interest of the public whose service is the prosecutors’s first and foremost duty...
In Formal Opinion 142 (1935), the ABA again emphasized this rationale in holding that it was ethically improper for a county assistant prosecutor (or his partner) to defend any client in a criminal case. Even though the version of the Canons at the time were different than our current Code of Professional Responsibility (Canon 6 of the ABA’s Canons of Professional Ethics was interpreted in this Opinion), the ABA’s position was clear:
A public prosecutor has as his client the state. It is obvious therefore that he cannot appear for any defendant in cases in which the state is an adverse party. The second paragraph of Canon 6 provides in substance that a lawyer cannot represent conflicting interests “except by express consent of all concerned given after a full disclosure of the facts.” In Opinion 16 it was held that the prosecutor could not represent both the public and the defendant, and that a law firm cannot serve two masters, because, “The positions are inherently antagonistic and this would be so irrespective of Canon 6. No question of consent can be involved as the public is concerned and it cannot consent.”
This Board has expressly adopted the reasoning of the ABA as set forth above in the past, and agrees with the ABA’s holding that the two positions are so inherently antagonistic, there can be, no consent to, or waiver of the conflict by the public. Even though the provisions of Canon 6 of the old Canons of Professional Ethics are not identical to this state’s Code of Professional Responsibility, similarly, there can be no consent to such a conflict by the public in Tennessee.
In Informal Opinion 1285 (1974), the ABA opined that municipal attorneys prosecuting municipal ordinance violations (who handled no state prosecutions under state statutes in the particular county), could represent criminal defendants in the county’s criminal courts who were charged solely with state law violations. This Opinion appears, on first blush, to be analogous to the facts of the instant inquiry. However, the facts in the instant inquiry demonstrate that the municipal prosecutors are also sworn as assistant district attorneys, and that they prosecute all alleged municipal and state law violations before the municipal courts in Shelby County. Even though the ABA held in Informal Opinion 1285 that the municipal prosecutors were not per se disqualified from defending criminal defendants charged with state violations, the approval given was also carefully limited to circumstances in which no municipal police officers from the municipality were involved.
The duties of a state prosecutor or assistant and such lawyer’s duties as criminal defense counsel in a state court are clearly in conflict. Prosecutors have taken an oath of office to uphold and apply state law in prosecutions and to assist municipal, county, and state law enforcement officers in prosecuting alleged crime. Zealous representation of criminal defendants very often will require vigorous cross-examination of the testimony of such law enforcement personnel, and in many instances will require challenging the very laws the prosecutor is charged to enforce. Even if cross-examination of such personnel would not involve the disclosure of confidences and secrets of the state or municipality, the desire to maintain a harmonious working relationship with these law enforcement officers could adversely affect the inquiring attorney’s zeal in conducting such cross-examination. On the other hand, if a prosecution results in acquittal or if the defendant receives a beneficial disposition of the charges, it is likely an appearance would be created that the disposition was the result of the assistant district attorney’s relationship with law enforcement personnel.
There is a strong possibility that the public’s confidence in the office of the District Attorney would be lost or the District Attorney’s effectiveness and zeal subjected to doubt, if such state prosecutors were allowed to represent criminal defendants in state court. Avoiding the appearance of impropriety requires such prosecutors to avoid the desired representation. Just as the public is unable to consent to or waive the conflict under DR 5-101(A), the public cannot waive the appearance of impropriety inherent in such representation and the assistant district attorney would violate Canon 9 in situations such as that presented by the inquiry.
Ethics opinions, cases and disciplinary rules from several states support this conclusion. In State ex rel. Sowa v. Sommerville, 280 S.E. 2d 85, 86 (W.Va. 1981), the West Virginia Supreme Court of Appeals concluded that attorneys acting as prosecutors (for state violations) and their assistants could not defend criminals in any county of the state, and that members of assistant prosecutors’ law firms could not accept private retainers to defend criminal cases. The West Virginia Court emphasized the clear conflict posed by the prosecutor’s duty of loyalty to the public with his or her duty to provide zealous defense to an accused in a criminal proceeding. Moreover, public policy in West Virginia relative to this conflict in loyalty has been expressed in Rule IV(c) of the West Virginia State Trial Court Rules, (T.C.R.) for Courts of Record, which absolutely prohibits state prosecuting attorneys and assistants from appearing as criminal defense counsel in any state Court of Record. The Minnesota Lawyers Professional Board, in Opinion No. 6 (6/24/74), held that it was ethically improper for a city or municipal attorney to accept the defense of any criminal case arising within the city or municipality which he serves, and improper to accept the defense of any criminal case in any other areas of the state where he would be required to challenge the validity of a state statute which he would be required to support while acting as a prosecutor.
In Iowa, DR 8-101(B) provides that “County attorneys and assistant county attorneys shall not engage in the defense of an accused in any criminal matter during the time they are holding this public office.” County attorneys and their assistants in Iowa enforce all state laws and prosecute all state misdemeanor offenses. Similarly, the Oregon State Bar concluded in Formal Opinion No. 1991-122 that a special prosecutor for certain state misdemeanor cases in a county’s state court would have a likely conflict under that state’s DR 5-105(A)(2), if such attorney sought to represent any private client adversely to the state. Alabama Ethics Opinion 87-08 holds that a law firm which allows its members to serve as part-time special assistant district attorneys in the prosecution of certain felonies in the circuit and district courts, could not allow any such members or associates of the firm to represent criminal defendants in municipal and district courts.
A number of states have adopted the ABA’s position as expressed in Formal Opinion 142, to the effect that it is ethically improper for a state prosecuting attorney (or county attorney with such authority) to defend a state criminal defendant in any other county in the respective state. See Michigan State Bar Opinion CI-887 (assistant county prosecutor may not represent defendants charged in other counties of the state); Kansas Opinion No. 80-48 (a county attorney may not represent criminal defendants in any other district court in which the state is a party litigant).
The limited authority granted municipal attorneys (not state prosecutors) to represent criminal defendants within the same county appears to be carefully circumscribed to circumstances where the prosecution is not initiated by that municipality’s Police Department, and circumstances where a county prosecuting attorney seeks only to defend municipal cases brought only by municipal police officers (South Carolina Opinion 93-22). However, neither of these circumstances is found in the instant inquiry, since the municipal attorneys are also parttime Shelby County Assistant District Attorneys with state prosecutorial authority, who seek to defend state prosecutions in the Shelby County General Sessions and Criminal Courts.
The Board has carefully reviewed the Tennessee Supreme Court’s decision in State v. Jones (In re Banks), 726 S.W. 2d 515, 520 (Tenn. 1987), where the Court held that county attorneys and their partners are not per se disqualified from representing criminal defendants. The Board does not find the opinion expressed herein to be inconsistent with State v. Jones in that the roles of state District Attorneys and Assistant District Attorneys are easily distinguishable from those of County Attorneys in Tennessee.
This 8th day of March, 2002.
Kim A. McMillan, Chair
Michelle A. Benjamin
Jack W. Robinson, Sr.
ADOPTED AND APPROVED BY THE BOARD