Requests for reconsideration of Formal Ethics Opinion 86-F-107 have been made by nine City Attorneys, four County Attorneys, two City Commissioners including a Mayor, one County Commissioner, one City Judge, one City Prosecutor, the Tennessee Municipal Attorney's Association and the Tennessee Municipal League.
The contentions of the parties requesting reconsideration are that the opinion is unduly oppressive in placing extraordinary ethical responsibilities on attorneys serving as governmental attorneys or public officials; and, that application of the vicarious disqualification rule also places an undue burden on the partners and associates of attorneys serving as governmental attorneys or public officials. It is also contended that the opinion may effectively prevent governmental entities from obtaining part-time attorneys or attorneys on an as-needed basis thereby imposing disastrous financial hardships on almost every city and county government in the state.
The portion of the opinion which is most critically attacked is the prohibition of governmental attorneys or public officials, and their associates, from representation of other clients when police officers or other agents or the public entity are material witnesses in the legal matter.
The Board has previously issued 108 Formal Ethics Opinions pursuant to Section 26 of Tennessee Supreme Court Rule 9. Several of these opinions relate to governmental interests and differing interests, to-wit: 81-F-23, 83-F-41, 83-F-53, 83-F-56, 83-F-57, 83-F-58, 84-F-59, 84-F-60, 85-F-83, 85-F-88, 85-F-92, 86-F-105, and 86-F-107.
In these opinions the Board has interpreted Canon 5 of the Code of Professional Responsibility and the Disciplinary Rules thereunder, and also DR 8-101, as prohibiting governmental attorneys or attorney-public officers, or their associates, from private employment of clients before the governmental body he represents, representing clients in criminal or civil matters wherein government agents or employees are material witnesses, representing government agents or employees against the governmental entity, or defending clients in the court(s) operated by the governmental entity.
On March 10, 1987 the Supreme Court of Tennessee, in the case of State of Tennessee vs. Jesse Jones, In Re: Larry S. Banks, Attorney, 726 S.W.2d, 515, passed upon the validity of Ethics Opinion 83-F-41. Ethics Opinion 83-F-41 declared that county attorneys cannot represent criminal defendants prosecuted by county officers. The Court found Ethics Opinion 83-F-41 to be overbroad, stating that actual and perceived conflicts of interest cannot be dealt with by such sweeping blanket pronouncements, and that each incident should be examined and determined on a case-by-case basis.
Therefore, in consideration of the requests for reconsideration, and the holding of the Supreme Court of Tennessee in the above cited case, Formal Ethics Opinion 86-F-107 is vacated and set aside.
In all matters involving governmental interests and differing interests the question of a conflict of interest is a factual one depending upon the use of the attorneys influence to affect the outcome or decision in the particular matter under consideration; or, whether the attorney's professional judgment on behalf of a client was or will be in fact affected by his interest as a public official or governmental attorney. There is no presumption of impropriety.
To the extent that the prior opinions cited herein conflict with this interpretation they are overruled.
This 10th day of June, 1987.
William R. Willis, Jr.
Henry R. Hancock
Cecil D. Branstetter
G. Wilson Horde
Charles T. Herndon, III
Michael E. Callaway
Jerry C. Colley
W. J. Flippin
Edwin C. Townsend
APPROVED AND ADOPTED BY THE BOARD