81-F-4 - County Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-4


Under date of October 17, 1980, the Ethics Committee of the Disciplinary Board of the Supreme Court of Tennessee received a request from a law firm in Hamilton County for a formal ethics opinion pursuant to Rule 42, Section 26. Under date of November 21, 1980, Disciplinary Counsel issued an Advisory Ethics Opinion No. 80-A-47 in view of the fact that the request posed hypothetical questions rather than specific factual situations. Subsequently, on December 6, 1980, the firm reiterated its request for a formal ethics opinion, setting out therein specific factual situations for consideration of the Ethics Committee.

The request concerned generally whether or not a member of the law firm could serve as county attorney while his firm engaged in a comprehensive general practice, a considerable portion of which involved the representation of land developers in the county.

Answer to these questions is generally found in Disciplinary Rule 5-105 of the Code of Professional Responsibility, together with the ethical considerations thereunder which have been adopted by the Supreme Court of Tennessee.

The Ethics Committee adopts what we will call the "New Jersey Rule" as set forth in the 1965 case of In Re: A. & B., 44 N.J. 331, 209 Atl.(2d) 101, and the 1978 case of In Re: Dolan, 76 N.J. 1, 384 Atl.(2d) 1076. We quote from the former case as follows:

'... an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests ...'Where public interest is involved, he may not represent conflicting interests even with consent of all concerned ...'

'... 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, and hence, it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.'...

'Nonetheless, the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.'

'It is accordingly our view that such dual representation is forbidden, even though the attorney does not advise either the municipality or the private client with respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest.'

1. The first question presented is, "Is the firm disqualified from representing in any manner all land developers operating in Hamilton County, any persons who contract with the County, the recipients of appropriations from the County, or any other types of present or potential clients, because of our representation of Hamilton County?" Following that, the firm's letter of request states, "If Tennessee were to have the prophylactic rule like that in New Jersey, and if its broadest interpretation were followed in Tennessee, we would have conflicts of interest which could not be resolved by our continued representation of Hamilton County." We believe the answer to this question in the affirmative then becomes self-evident. This would not disqualify representation of such clients in development of land outside the county or within municipalities inside the county not regulated in any way by the county.

2. The second question is, "May the firm represent other clients before county officials and agencies, with regard to contracts, and in other matters (except litigation) affecting Hamilton County when the County is represented by other counsel with respect to whom the firm has no supervisory or other responsibility?" The adoption of the New Jersey Rule prohibits this type representation since it is all too easy for a client to attempt to gain some advantage by virtue of the official status of his counsel; that is, retaining the county attorney even though the county in that particular matter may be represented by other counsel.

3. The third question is, "May the firm represent clients in matters not directly affecting Hamilton County before the Planning Commission, the Air Pollution Control Bureau, and other local governmental agencies which are the joint creation of municipal and Hamilton County governments?" Adoption of the New Jersey Rule prohibits such. Since the legal advice of the county attorney is available to such bodies, he would have special influence with them by virtue of his relationship to them.

4. The next question is, "May the firm represent, both in litigation and in matters not involving litigation, clients whose interests differ from that of the State of Tennessee?" We do not deem it a conflict of interest for the county attorney in his private capacity to represent clients whose interests conflict with those of the State, so long as no interest of the county government is directly involved, and so long as the official duties of the county attorney are in no way related to the matter or litigation.

5. The next and last question is, "May the firm represent, both in litigation and in matters not involving litigation, clients whose interests differ from that of the City of Chattanooga and other municipalities?" On the face of this question, we see no conflict of interest in such representation, and the answer would be the same as that to question No. 4.

This 14th day of January, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings, Sr.
F. Evans Harvill
John R. Rucker

APPROVED AND ADOPTED BY THE BOARD