86-F-105 - County Commissioner representing criminal defendants

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 86-F-105


Inquiry is made concerning the propriety of serving as a County Commissioner, voting and making decisions regulating and managing the county's law enforcement program and also representing criminal defendants prosecuted by county law enforcement officers.

Tennessee Formal Ethics Opinion 85-F-88 states that an attorney may not breach his fiduciary duty as a public official in representation of private interests against the public body he represents. The opinion prohibits the Speaker of the Senate and Lieutenant Governor of the State from representing claimants in an action for damages against the State. The opinion states:

---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.

Formal Ethics Opinion 81-F-23 states that it is improper for a city attorney to defend a person prosecuted by the City Police Department. 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. 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. 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. 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 proper funding of the county school board.

The public body which the attorney serves as an elected representative of the people is obligated to provide the citizens with an effective law enforcement program. The public body and criminal defendants have interests which are diverse. Each has the right to the independent judgment and loyalty of the attorney-commissioner free of any impairment or compromising influences. The attorney may not breach his fiduciary duty as a public official in representation of private interests against the public body he represents and is, therefore, prohibited from representing criminal defendants prosecuted by county law enforcement officers.

This 4th day of August, 1986.

ETHICS COMMITTEE:

C. T. Herndon III, Chairman
Michael E. Callaway
G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD