The county attorney has inquired if he may simultaneously represent the county and an industrial development corporation created by the county.
The county attorney's duties are substantially the same as those set forth in TCA 5-15-305, which are to:
... serve as legal advisor to the (County) --- and all county boards, commissions, departments, offices and agencies; act as counsel for the county in any proceeding instituted by or against the county; and perform any other legal duties prescribed by (law) --- (emphasis added)
The county authorized the creation of the County Industrial Development Board pursuant to TCA 7-53-101 et seq. The Board is a public instrumentality of the county created to issue bonds for financing industrial, commercial and trade related projects for the county. The Board is authorized to employ such employees, including attorneys, as necessary to carry out the business of the Board.
In the typical bond financing transaction, the role of the attorney for the Board is to review and explain the documents to the Board and to ascertain that the Board is merely a conduit for the bond proceeds and is indemnified from liabilities. The attorney must also render an opinion that the Board is lawfully organized and empowered to enter into the bond transaction.
Disciplinary Rules 5-105(A) and (B) of the Code of Professional Responsibility provide, in part:
DR 5-105. REFUSING TO ACCEPT OR CONTINUE EMPLOYMENT: The Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests ....
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests ....
Differing interests are defined in the Code as:
... every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.
The American Bar Association Standing Committee on Ethics and Professional Responsibility stated in ABA Informal Opinion 1244 (1972):
(G)enerally no conflict of interest exists which would make it inappropriate or unethical for the same attorney to represent the Township in connection with those procedures culminating in the enactment of a zoning ordinance, and also the Zoning Hearing Board, in any hearing in which it is administering the ordinance or taking testimony in order to determine the validity of an ordinance.
The New York State Bar Association Committee on Ethics stated in New York State Ethics Opinion 501 (1979):
When ... the relationship between the two boards has become antagonistic to the point where one seeks to institute suit against the other, the theoretical harmony of their relationship must give way to the reality of their conflicting interests. Under such circumstances, we believe that counsel fully independent from the office of the town attorney should be retained to represent the zoning board of appeals ... The duty owed to the town board by the office of the town attorney, when coupled with that Board's preeminent authority, precludes the exercise of independent professional judgment on the part of an assistant regularly employed in the office of the town attorney concerning matters adverse to the interests of the town board. Any such assistant would virtually be required to serve two masters if asked to undertake the representation of a zoning board of appeals against which the town board has determined to bring suit.
In the absence of antagonistic interests between the county and the industrial development board and the absence of any other interest which would cause the impairment of the independent professional judgment of the attorney, the county attorney may simultaneously represent the county and an industrial development corporation created by the county.
This 18th day of January, 1984.
O. B. Hofstetter, Jr.
F. Evans Harvill
William R. Willis
APPROVED AND ADOPTED BY THE BOARD