85-F-88 - Government official representing private client

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-88


Inquiry is made concerning the propriety of representing claimants in an action for damages against the State while serving as Speaker of the State Senate and Lieutenant Governor of the State.

The propriety of an attorney-public official representing a private client in a proceeding involving the public body he is elected to represent was first addressed by the Board in Formal Ethics Opinion 81-F-4. The opinion adopted the "New Jersey Rule" set forth by the New Jersey Supreme Court in the case of In Re: A & B, 44 N.J. 331, 209 A.H.2d 101 (1965) and the case of In Re: Dolan, 76 N.J. 1, 384 Atl.2d 1076 (1978) as follows:

... an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests ... Where the public interest is involved, he may not represent conflicting interests even with the consent of all concerned....

... the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances, the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned....

... It is fundamental that no attorney who holds a public office should suffer anyone to attempt to gain an advantage by virtue of his official status and, hence, it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind ....

... Nonetheless, the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc. ....

... It is accordingly our view that such dual representation is forbidden even though the attorney does not advise either the municipality or the private client with respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest ....

Subsequent Formal Ethics Opinions of the Board have adopted the reasoning of the "New Jersey Rule." Formal Ethics Opinion 81-F-23 states that it is improper for a CityAttorney to defend a person prosecuted in Criminal Court by the City Police Department. Formal Ethics Opinion 83-F-41 states that it is improper to represent persons prosecuted by the County Sheriff's office when the attorney's associate is County Attorney. Formal Ethics Opinion 83-F-53 states that it is improper for a County Attorney to counsel the county in preparation of the county budget and also represent the sheriff and/or deputy sheriffs to increase their budget or salaries. Formal Ethics Opinion 83-F-57 states it is improper to represent a criminal defendant in state court on charges resulting from investigation and prosecution by the city police when the attorney's associate is City Attorney. Formal Opinion 83-F-58 states that it is improper for a judge of the County Juvenile Court to represent the County School Board in an action against the County Commissioner relative to the proper funding of the County School Board.

Ethics Opinion 186 of the American Bar Association states that a County Attorney may not represent a defendant in a criminal case. The opinion states:

The county attorney should not accept employment where his duties to his private client and his public duties may conflict either directly or indirectly. Furthermore, for the county attorney charged with public duties to accept employment adverse to this public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession. The county attorney ... should refrain from accepting such employment, as the interest of the accused for whom he appears and the interest of the county of which he is an officer are conflicting.

Ethics Opinion 1182 of the American Bar Association states that Disciplinary Rule 8-101(A)(2) of the Code of Professional Responsibility proscribes a lawyer using his public position to influence, or attempting to influence, a tribunal to act in favor of himself or of a client. The opinion reasons:

... a lawyer appearing before an administrative board, the compensation of whose members are fixed by the legislative or the appointment of whose members are either subject to approval by the Legislature or elected by the Legislature, is in a strong or powerful position 'to use his public position to influence, or attempt to influence,' the administrative board to act in his favor. His very appearance before such a board may be circumstantial evidence of such influence or attempt to influence ....

An attorney may not breach his fiduciary duty as a public official in the representation of private interests against the public body he represents. Therefore, the Speaker of the Senate and Lieutenant Governor of the State may not represent claimants in an action for damages against the State.

This 16th day of January, 1985.

ETHICS COMMITTEE:

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

APPROVED AND ADOPTED BY THE BOARD