Inquiry is made concerning the propriety of the county attorney representing defendants charged with unlawful activity in cases wherein the sheriff and/or deputy sheriffs are witnesses for the prosecution and the county has precluded and prohibited the county attorney from representing the sheriff and/or deputy sheriffs; and, precluded and prohibited the county attorney from participating in discussions with or counseling the county in any and all matters relating to the law enforcement efforts by or on behalf of the county.
Tennessee Formal Ethics Opinion 83-F-57 holds that the vicarious disqualification rule of the Code of Professional Responsibility prohibits representation of a criminal defendant on charges resulting from investigation and prosecution by the city police when the attorney's associate is city attorney. The opinion states:
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 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 Ethics Committee of the Board stated in Formal Ethics Opinion 83-F-53:
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.
However, the above opinion, 83-F-53, holds that there is an inherent impairment of independent professional judgment of an attorney 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 governmental entity is charged with the responsibility of providing a law enforcement effort and is responsible to provide an adversarial system to administer justice to those charged with unlawful activity. The attorney who counsels and serves the governmental entity in providing the law enforcement effort and judicial system has an inherent impairment of professional responsibility to the governmental entity and also to the person charged when undertaking to represent both interests. The conflicting and inconsistent interests and responsibilities cannot be waived or excused.
Therefore, the attorney representing the governmental entity may also represent defendants charged with unlawful activity when law enforcement officers or employees of the governmental entity are prosecutors or witnesses only in event the attorney is precluded and prohibited from representing the law enforcement officers or employees; and, is precluded and prohibited from participating in discussions or counseling with the governmental entity in any and all matters relating to the law enforcement efforts or judicial system of the governmental entity; and, provided the governmental entity has actually obtained independent professional legal advice and counseling relating to its responsibilities to provide law enforcement services and system of justice.
This 18th day of January, 1984.
O. B. Hofstetter, Jr.
F. Evans Harvill
William R. Willis
APPROVED AND ADOPTED BY THE BOARD