Can a Tennessee district attorney represent a petitioner seeking an order of protection, and can a public defender represent the person it is sought against?

Plain-English summary

The AG's office answered three questions about who can appear at an order-of-protection hearing in Tennessee. Together they draw a clear line: order-of-protection proceedings are civil matters between private parties, and the public lawyers who staff Tennessee's criminal-justice system (district attorneys general and public defenders) do not stand in for the private parties.

On the district attorney side, a DA represents the State and the public interest. State law (Tenn. Code Ann. § 8-7-103) lists the DA's duties (prosecute crimes, cooperate with the AG, advise county officers on criminal law, etc.) and § 8-7-104 prohibits a DA from engaging in any other practice of law. Representing an individual petitioner in a civil protection-order case is outside the DA's authority and inside the prohibition. It also creates a conflict of interest: a DA cannot zealously advocate for a private client while simultaneously being responsible for public-interest decisions and exculpatory disclosures in a related criminal prosecution (see State v. Parks).

On the public defender side, the office is wholly statutory (Tenn. Code Ann. § 8-14-202) and its duties (Tenn. Code Ann. §§ 8-14-201, -204) are limited to representing indigent persons in criminal prosecutions, juvenile delinquency proceedings, habeas/post-conviction matters, and the related appeals. Defending against a civil petition for an order of protection is not on that list. The opinion noted one geographic exception: the ordinances that govern the Shelby County Public Defender's office do not prohibit such representation, so that office could provide it under its specific local enabling framework.

On the 1998 amendment to § 8-7-103, the legislature dropped the phrase "or in anywise interested" from subsection (1). The AG concluded the amendment did not affect Opinion No. 92-25's conclusion that a DA may prosecute criminal contempt if the DA chooses to, because that conclusion did not rest on the deleted phrase.

The opinion is careful to note that a DA acting outside his or her authority is not engaged in the "unauthorized practice of law" in the technical sense (a DA is a licensed attorney), but that does not make such actions lawful. The DA could face civil, criminal, or ethical liability for stepping outside the constitutional and statutory grant.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The district attorney general is an elected constitutional officer (Tenn. Const. art. VI, § 5). The constitutional role is criminal prosecution: "An Attorney for the State for any circuit or district, for which a Judge having criminal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district." The statutory framework at Tenn. Code Ann. §§ 8-7-101 through -112 fleshes that out.

Section 8-7-103 lists the DA's specific duties (prosecute state criminal violations, work with federal-court removals, cooperate with the state AG, advise county officers on criminal law, and submit annual reports). Subsection (6) and (7) allow delegation to assistants. None of these duties contemplates representing private individuals in civil cases.

Section 8-7-104 makes the boundary explicit: "District attorneys general are prohibited from engaging in the practice of law." That ban extends to private representation while in office. Section 8-7-401 makes clear that even crime victims are not the DA's clients in the case-against-defendant; they must hire their own counsel if they want personal representation.

The public defender's office is purely a creature of statute. Sections 8-14-201 through -204 set the duties: indigent criminal representation, juvenile delinquency, post-conviction work, and related appeals. Civil order-of-protection defense is not enumerated. Shelby County operates under additional local ordinances; those ordinances do not affirmatively authorize PD representation in protection-order cases but, importantly, also do not prohibit it.

The protection-order regime itself (Tenn. Code Ann. §§ 36-3-601 et seq.) treats the petitioner and respondent as private parties. Section 36-3-604(a)(2) and § 36-3-609 contemplate either pro se appearance or private counsel; neither anticipates a DA appearing on behalf of the petitioner.

Tennessee case law (State v. Superior Oil, 875 S.W.2d 658 (Tenn. 1994), quoting Foute v. State (1816)) frames the DA's role as judging "between the people and the government," not as a private champion. Jones v. Talley (1950) and State ex rel. Carney v. Crosby (Tenn. Ct. App. 2008) recognize DA participation in narrow civil categories (quo warranto, ouster, forfeiture), but only where the DA represents a public interest.

The conflict-of-interest concern crystallized in State v. Parks, 2012 WL 525500 (Tenn. Crim. App. Feb. 17, 2012): a DA cannot owe undivided loyalty to a private client while remaining bound by the prosecutorial duties of public service and Brady disclosure.

Common questions

Q: At the time of this opinion, could a Tennessee DA represent a victim seeking an order of protection?
A: No. The DA's authority is limited to criminal prosecution and certain enumerated civil actions on behalf of the public. Representing a private petitioner was outside that scope and would create a conflict of interest.

Q: Could a victim's family hire the DA in a private capacity?
A: No. Section 8-7-104 prohibits a sitting DA from any private practice of law.

Q: Why doesn't the protection-order statute let the DA stand in for the petitioner?
A: The statute (Tenn. Code Ann. §§ 36-3-601 et seq.) treats petitioners as private parties. Sections 36-3-604 and -609 contemplate pro se appearance or private counsel. The legislature could have given DAs standing here but chose not to.

Q: Could a public defender represent the person against whom an order of protection is sought?
A: Generally no, by statute. The PD's statutory duties are criminal and quasi-criminal representation. The opinion identified Shelby County as an exception: its local ordinances neither authorize nor prohibit the representation, so the Shelby County PD could provide it if it chose to.

Q: What about criminal contempt for violating an order of protection?
A: That's separate. The 1998 amendment removing "or in anywise interested" from § 8-7-103 did not change the conclusion in earlier AG Opinion 92-25 that DAs may prosecute criminal contempt if they choose to. Criminal contempt is on the criminal side of the line, within the DA's authority.

Q: If a DA represents a petitioner anyway, what's the consequence?
A: A footnote to the opinion notes that a district attorney acting outside the scope of his or her authority is not engaged in the "unauthorized practice of law" (a DA is a licensed attorney) but risks other civil, criminal, or ethical liability. The opinion did not spell out the specific enforcement mechanisms.

Citations and references

Constitutional provisions:

• Tenn. Const. art. VI, § 5 (Office of district attorney general)

Statutes:

• Tenn. Code Ann. §§ 8-7-101 to -112 (District attorneys general)
• Tenn. Code Ann. § 8-7-103 (DA duties)
• Tenn. Code Ann. § 8-7-104 (DA bar on practice of law)
• Tenn. Code Ann. § 8-7-401 (Victim representation)
• Tenn. Code Ann. §§ 8-14-201 to -204 (Public defenders)
• Tenn. Code Ann. §§ 36-3-601 et seq. (Orders of protection)

Cases:

• State v. Superior Oil, Inc., 875 S.W.2d 658 (Tenn. 1994) (Tennessee Supreme Court, DA role)
• Foute v. State, 4 Tenn. (3 Hayw.) 98 (1816) (Tennessee Supreme Court)
• Jones v. Talley, 230 S.W.2d 968 (Tenn. 1950) (Tennessee Supreme Court, quo warranto)
• State ex rel. Carney v. Crosby, 255 S.W.3d 593 (Tenn. Ct. App. 2008) (Tennessee Court of Appeals, ouster)
• State v. Parks, 2012 WL 525500 (Tenn. Crim. App. Feb. 17, 2012) (Tennessee Court of Criminal Appeals, DA conflict)

Prior AG opinions:

• Tenn. Att'y Gen. Op. No. 92-25 (Criminal contempt prosecution by DAs)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-006.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 10, 2016
Opinion No. 16-06
Role of District Attorney General and Public Defender in Proceedings Related to an Order of Protection

Question 1
May a district attorney general represent a petitioner at a hearing on a petition for an order of protection made pursuant to Tenn. Code Ann. § 36-3-601 et seq., or would such representation be beyond the duties set forth in Tenn. Code Ann. § 8-7-103 and thus constitute the unauthorized practice of law?

Opinion 1
No. A district attorney general has no authority to represent a petitioner seeking a protective order. A district attorney general represents the public interest, and representation of an individual victim is inconsistent with his constitutional and statutory duties and is prohibited by Tenn. Code Ann. § 8-7-104. In addition, representation of a victim in a civil action related to a criminal prosecution creates a conflict of interest for a district attorney general.

Question 2
May a public defender provide representation at the hearing for a person against whom an order of protection is sought pursuant to Tenn. Code Ann. § 36-3-601 et seq.?

Opinion 2
No, with one exception. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so.

Question 3
Public Chapter 1080 of the Public Acts of 1998 deleted the phrase "or in anywise interested" from Tenn. Code Ann. § 8-7-103 after Tennessee Attorney General Opinion No. 92-25 was issued. Would that statutory amendment alter Opinion No. 92-25, particularly with respect to the ability of district attorneys to prosecute criminal contempt "if they so desire?"

Opinion 3
No. The 1998 amendment to Tenn. Code Ann. § 8-7-103(1) is not relevant to the conclusion reached on the question of criminal contempt prosecution in Opinion No. 92-25 and so does not change that opinion.

ANALYSIS

1. Representation of a Petitioner Seeking a Protective Order

A district attorney general is an elected constitutional officer whose authority to act derives solely from the Tennessee Constitution and various statutes, in particular Tenn. Code Ann. §§ 8-7-101 through -112. A district attorney general represents the State of Tennessee and its people when performing his constitutional and statutory duties and is not authorized to represent individual petitioners seeking protective orders. See, e.g., State v. Superior Oil, Inc., 875 S.W.2d 658, 660-61 (Tenn. 1994) ("He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other . . . and . . . to combine the public welfare and the safety of the citizens, preserving both, and not impairing either," quoting Foute v. State, 4 Tenn. (3 Hayw.) 98, 99 (1816)).

The specific statutory duties and responsibilities of a district attorney general are to (1) prosecute violations of state criminal statutes; (2) prosecute criminal cases that have been removed from state court to any inferior federal court; (3) cooperate and assist the attorney general and reporter in cases in circuit and chancery courts in which the attorney general is required to appear to protect the state or public interest; (4) give an opinion to any county officer in his district on a question of criminal law relating to the duties of that county officer; and (5) submit certain enumerated written reports to the district attorneys general conference annually. See Tenn. Code Ann. § 8-7-103(1)-(5)(A)-(C). The district attorney general also has discretion to allocate available resources in performing his duties and responsibilities and to delegate his duties and responsibilities to assistant district attorneys general. Tenn. Code Ann. § 8-7-103(6)-(7). All of these duties are related to the district attorney general's role as the State's representative in criminal prosecutions.

Other statutes interspersed throughout the Code allow a district attorney general to participate in certain types of civil actions, such as quo warranto, ouster, or forfeiture actions. But his role in such civil actions is limited to protecting a public interest rather than a private one. See, e.g., Jones v. Talley, 230 S.W.2d 968, 970 (Tenn. 1950) (discussing the requirement that quo warranto actions be brought by the district attorney general to promote the public interest); State ex rel. Carney v. Crosby, 255 S.W.3d 593, 596 (Tenn. Ct. App. 2008) (discussing district attorney general's duties to institute ouster proceedings on behalf of the State under Tenn. Code Ann. § 8-47-101 et seq.); Jones v. Greene, 946 S.W.2d 817, 822 (Tenn. Ct. App. 1996) (noting that a judicial forfeiture under Tenn. Code Ann. § 53-11-452 is initiated by the district attorney general's filing of a civil forfeiture lawsuit).

Nothing in the Tennessee Constitution or statutes allows a district attorney general or his assistants to represent a particular victim or any other individual. To the contrary, district attorneys general are statutorily prohibited from doing so. They may not in any private capacity represent individuals, because while they are serving as district attorneys general they may not practice law in any other capacity. See Tenn. Code Ann. § 8-7-104 ("District attorneys general are prohibited from engaging in the practice of law."). Even victims in criminal cases are not the district attorney general's clients and must hire their own private attorneys if they wish to be personally represented in the prosecution. See Tenn. Code Ann. § 8-7-401; State v. Parks, No. E2010-02557-CCA-R3-CD, 2012 WL 525500, at 6 (Tenn. Crim. App. Feb. 17, 2012) (no perm. app. filed). Indeed, representing a victim in a civil proceeding related to a criminal case, such as a victim seeking an order of protection in a domestic case, would create a conflict of interest for a district attorney. See, e.g., Parks, 2012 WL 525500, at 6. A district attorney cannot zealously represent a client, as is a private attorney's ethical obligation, when he must "advocate for justice, make decisions that affect the public interest, and make timely disclosures of exculpatory materials." See id.

Nor do the statutes governing protective orders entitle a petitioner to have the district attorney general represent him or her in obtaining a protective order in a domestic abuse or sexual assault case. Rather, the statutes contemplate that a victim will either appear pro se or be represented by private counsel, and the district attorney general is not involved. See Tenn. Code Ann. §§ 36-3-604(a)(2), -609. Thus, the district attorney cannot represent victims in protective order proceedings.

2. Representation of a Person Defending Against a Petition for a Protective Order

The office of the district public defender is created wholly by statute. See Tenn. Code Ann. § 8-14-202. The duties of the public defender include (1) representing indigent persons through court appointments in the trial court in any criminal prosecution, juvenile delinquency proceeding involving a possible deprivation of liberty, or any habeas corpus or other post-conviction proceeding, (2) advising such persons of their rights to appellate review and perfecting any appeal, including filing motions for a new trial and all essential transcripts and records with the clerk of the appellate court, and (3) handling all appeals by indigent persons represented in the trial court. Tenn. Code Ann. §§ 8-14-201(1)-(2), -204(a)-(c). Representing an individual at a hearing to defend against a petition for a protective order that is being sought pursuant to Tenn. Code Ann. § 36-3-601 et seq. is not within the statutory duties of the public defender.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Footnote 1: Article VI, § 5 of the Constitution creates the office of the district attorney general by providing that "[a]n Attorney for the State for any circuit or district, for which a Judge having criminal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district. . . [and] [i]n all cases where the Attorney for any district fails or refuses to attend and prosecute according to law, the Court shall have the power to appoint an Attorney pro tempore."

Footnote 2: Assuming the district attorney must be a licensed attorney in Tennessee to hold that office, actions outside the scope of his or her authority would not constitute the "unauthorized practice of law." Unauthorized practice of law involves an unlicensed person who is rendering services in Tennessee using the professional judgment of a lawyer. See Tenn. Code Ann. §§ 23-3-101, -103; Tennessee Environmental Council, Inc. v. Tennessee Water Quality Control Bd., 254 S.W.3d 396, 403 (Tenn. Ct. App. 2007). However, a district attorney acting in an unauthorized manner risks other types of civil, criminal, or ethical liability.