81-F-15 - Public Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-15

 

An inquiry has been made as to whether or not a law firm is precluded from representing clients engaged in coal mining in this state regarding a notice of violation or cessation order issued by the federal agency, Office of Surface Mining, when one of the law partners is a member of a similar state agency, Board of Reclamation Review.

Surface mining in Tennessee is regulated by both federal and state law. The federal law provides for an interim program during which both federal and state regulations apply. The federal law is enforced by the Office of Surface Mining whose agents and inspectors may issue a Notice of Violation and in instances of imminent danger to the environment, or when the subject of a Notice of Violation has not been corrected, may issue a cessation order. The enforcement of the federal regulations occur through the Office of Surface Mining, an Administrative Law Judge, the Board of Surface Mining and Reclamation Appeals and the United States District Court, all federal agencies.

No member of the law firm is associated in any way with the enforcement of the federal surface mining regulations.

State regulation of surface mining is enforced through state law by state inspectors who are empowered to notify holders of mining permits in writing of any violation of the state law. Review of a state notice of violation is through the Commissioner of Conservation, the Board of Reclamation Review and the Chancery Court, all state agencies. A partner of the law firm is a member of the State Board of Reclamation Review and he is precluded from having a financial interest in the mining industry or in any related business.

There is no jurisdiction in the State Board for review of a notice of violation or cessation order issued by federal inspectors; however, an act that is in violation of federal law in most instances would also be a violation of state law.

The attorney, as a member of the Board of Reclamation Review, participates in adjudicatory hearings concerning regulations relating to surface mining, reclamation of surface mined lands, control of pollution of water and soil affected by surface mining to achieve soil stabilization, control soil erosion and obliterate the scars of stripping operations.

The acceptance of a quasi-judicial position which calls upon the lawyer to conduct hearings and determine issues concerning violations of state strip mining regulations bars him and members of his firm from acting as attorney for individuals or firms charged with similar federal violations. The public and private interests are inconsistent, diverse, discordant and incompatible. Such a practice would not only diminish public confidence in the administration of justice at both the federal and state level, but would produce serious conflict between the private interests of the lawyer representing clients and the public interest of the lawyer adjudicating similar matters. The public and private duties are incompatible and the prestige of the public office diverted to the private benefit and thereby demeaned.

Ethics Opinions 16, 30, 34, 77, 118 and 134 of the American Bar Association Committee on Professional Ethics (ABA) relate to adverse influences and conflicting interests and pass on questions concerning the propriety of the conduct of an attorney who is a public officer in representing private interests adverse to those of the public body which he represents. The principles applied in those opinions is that an attorney holding public office should avoid all conduct which may tend to lead the layman to conclude that the attorney, or law firm, is utilizing a public position to further the professional success or personal interests of the attorney or law firm.

Ethics Opinion 49 of the ABA has held that a lawyer who has occupied a judicial position or acted in a judicial capacity should refrain from accepting employment which might reasonably appear to involve similar facts upon which he acted in a judicial capacity.

Ethics Opinion 30 of the ABA points out that an attorney in the public employ should conduct himself so as to remain above all suspicion, even at personal sacrifice.

It is improper for a member of the law firm to defend private interests of individuals or firms charged with violations of similar federal regulations adverse to the interests of the state agency or public body which a member of the firm represents in a quasi-judicial capacity.

The question of whether or not the member of the firm is precluded from serving on the State Board due to a financial interest in the mining industry or in any related business is a legal question and is not the proper subject matter of an ethical inquiry.

This 26th day of August, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings
F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD