83-F-53 - County Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-53


Inquiry is made concerning the propriety of an attorney representing the County as delinquent tax attorney and other specific civil matters and also representing criminal defendants prosecuted by county law enforcement officers.

The attorney represents the County as delinquent tax attorney. The other specific civil matters also handled by the attorney are: Defending the County in denial of beer permits;  counseling in preparation of the county budget and in fiscal matters; preparation of capital outlay notes and litigation involving salary increases for county officials. None of these activities require collaboration with the sheriff, chief law enforcement for the county, except the defense of the beer permit denials and petitions to increase the sheriff's budget for increase of deputy sheriffs' salaries.

There is an inherent impairment of independent professional judgment of an attorney in representing the sheriff and/or deputy sheriffs to increase the sheriff's budget or deputies' salaries and defending the County in denial of beer permits where collaboration with the sheriff is required or the law enforcement effort of the County is involved, and also representing criminal defendants prosecuted by the county law enforcement officers. See Tennessee Formal Ethics Opinions 81-F-4, 81-F-18 and 83-F-41.

Tennessee Formal Ethics Opinion 81-F-23 holds that a City Attorney cannot defend a person prosecuted in Criminal Court by the City Police Department and cites In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, 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 ....

There is no inherent impairment of independent professional judgment of an attorney representing the County as delinquent tax attorney, counseling in preparation of the county budget and fiscal matters unrelated to the county law enforcement effort, preparation of capital outlay notes and also representing criminal defendants prosecuted by county law enforcement officers.

It is improper for the attorney to counsel the County in preparation of the county budget and also represent the sheriff and/or deputy sheriffs to increase the budget or salaries. This is an actual conflict of interest. Tennessee Formal Ethics Opinion 83-F-41 holds that it is clear that the public cannot waive the appearance of impropriety in matters such as conflicts of interest. Therefore, in such instances, the conflict of interest cannot be waived.

This 12th day of August, 1983.

ETHICS COMMITTEE:

W. J. Flippin
Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD