Inquiry is made concerning the propriety of representing a criminal defendant in state court on charges resulting from investigation and prosecution by the city police department when the attorney's associate is city attorney.
Five members of the city police department were material eye witnesses to events immediately preceding a homicide. The accused defendant is a controversial former public official of the county. One of the city police officers is the affiant to the criminal warrant which alleges material facts relating to the events before the homicide and to investigative facts after the homicide. The case has received widespread public attention including considerable coverage by the television media.
The city attorney, in this instance, is elected by the board of mayor and aldermen. His duties defined in the city charter are to attend meetings of the board and give such legal counsel as required by the board, to prepare ordinances, to attend all litigation wherein the city may be a party, and to transact such other business related to city government as may be imposed by ordinance. Neither the city charter nor any city ordinances charge the city attorney with the duty or responsibility of advising the city police department concerning the prosecution of criminal cases in state court or advising the police department concerning any investigation or prosecution of criminal activity or related matters.
The city police department relies upon the office of the local district attorney general for legal advice in connection with criminal activity. The city attorney is not consulted for advice as to probable cause relating to criminal proceedings, advice as to search warrants or any other legal counsel in connection with investigations or related duties performed by the police department. The only way the city attorney becomes involved in matters relating to criminal activities is in connection with civil matters which may arise; such as, civil rights actions, confiscation proceedings or other civil proceedings arising from actions or activities of the city police.
Tennessee Formal Ethics Opinion 81-F-18 states that an attorney representing the Tennessee Law Enforcement Officers Association should not represent criminal defendants when the representation may alienate officers or directors of such association or jeopardize the corporate representation. The opinion cites In Re: Advisory Opinion of Kentucky Bar Association, 613 SW 2d 416, jurisdiction and quotes the opinion as follows:
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.
Tennessee Formal Ethics Opinion 83-F-23 holds that a city attorney cannot defend a person prosecuted in criminal court by the city police department and further quotes In Re: Advisory Opinion of Kentucky Bar Association, (supra) 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 ....
Tennessee Formal Ethics Opinion 83-F-41 holds that the public cannot waive the appearance of impropriety inherent in the county attorney representing criminal defendants prosecuted by county law enforcement officers and pursuant to the vicarious disqualification provision of Disciplinary Rule 5-105(D) of the Code of Professional Responsibility. The partner or associate of the county attorney is also prohibited from such representation.
Tennessee Formal Ethics Opinion 83-F-53 holds that 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 county law enforcement officers.
The public is unable to waive the appearance of impropriety in matters such as this. There is an apparent impairment of independent professional judgment of the attorney and his duty to represent the client zealously by vigorous cross-examination of the police officers, possibly alienating them or discrediting their testimony. The public also has a right to expect that the adversarial system of justice will perform to the fullest extent and, therefore, is unable to waive the possibility of impairment of the vigorous prosecution of the case by the city police officers due to the attorney's associate being in a position of counseling and advising the board of mayor and aldermen who have authority and control over the city police department.
The appearance of impropriety and vicarious disqualification rules of the Code prohibit the attorney from representing the criminal defendant prosecuted by the city police department when the attorney's associate is the city attorney.
This 24th day of October , 1983.
Edwin C. Townsend
Henry H. Hancock
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD