85-F-83 - County Attorney

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-83


Inquiry is made concerning the propriety of a County Attorney assisting a County official in filing a pro se petition against the County Executive and assisting the parties in preparing and executing an agreed pro se order granting salary increases to the deputy clerks.

The County Attorney proposes to draft, prepare and file a petition on behalf of the County Court Clerk against the County Executive, pursuant to TCA 8-20-101 et seq., seeking salary increases for the deputy clerks. In addition, he will prepare and assist in the execution and filing of an agreed order approved by the parties. The name of the County Attorney will not appear as attorney of record for either party, nor will his name appear on the documents as attorney for either party.

In reference to assisting pro se litigants, American Bar Association Informal Opinion 1414 states:

Extensive undisclosed participation by a lawyer ... that permits the litigant falsely to appear as being without substantial professional assistance is improper ... the practice has been condemned in Klein v. H. N. Whitney, Goodby & Co., 341 F.Supp. 699 (S.D.N.Y. 1971) and in the related case of Klein v. Spear, Leeds & Kellogg, 309 F.Supp. 341 (S.D.N.Y. 1970).

Questions concerning the impairment of independent professional judgment and waiver of conflicts of interests by public entities are also material to the inquiry. Tennessee Formal Ethics Opinion 83-F-53 addresses these matters as follows:

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 interests. Therefore, in such instances, the conflict of interest cannot be waived.

The County Attorney is the agent, servant and employee of the county entity, the legislative body, which is charged with conducting the financial affairs of the county. There is an impairment of independent professional judgment when the County Attorney attempts to aid, counsel, advise or assist a county official in seeking salary increases which are financed by county funds. There can be no waiver of the conflict when the public interests are involved.

It is, therefore, improper for the County Attorney to assist a County official in filing a pro se petition against the County Executive and to assist the parties in preparing and executing an agreed pro se order granting salary increases to the deputy clerks.

This 2nd day of January, 1985.

ETHICS COMMITTEE:

Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD