Can a firm represent private clients before city boards and negotiate city contracts while also doing case-by-case trial work defending the city and its police officers?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A general-practice firm represented clients before various entities of a city, such as the City Council and the Metropolitan Planning Commission, and in securing long-term contracts from the city. Separately, the city's legal department asked the firm to do trial work on a case-by-case basis, generally defending the city and its police officers in suits by citizens alleging negligence or civil rights violations. The firm was not on retainer to the city, and it was not the "municipal attorney" referred to in the Board's earlier Opinion 81-F-4.

The Board reasoned that representing the city in specific tort cases does not involve the firm in giving general legal advice to the city or in city policy matters, unlike the role of a city attorney or the city attorney's assistants. Because of that distinction, the Board found no likelihood that the firm's special influence, arising from representing private clients before city boards and the council and in contract negotiations, would factor into those municipal entities' decisions.

The Board concluded that such representation would not violate the Canons of Ethics. It added a caveat: if the firm were instead offered employment representing one of the specific boards, or its members, before which the firm practices, then Opinion 81-F-4 would apply to bar such employment.

Common questions

Q: Can a firm represent private clients before a city's boards while also handling the city's litigation defense?

A: Yes, on these facts. The opinion concludes "such representation would not constitute a violation of the Canons of Ethics," because the firm's case-by-case trial defense work "does not involve the attorney in giving general legal advice to the City nor in matters of city policy."

Q: Does it matter that the firm is not the city's retained "municipal attorney"?

A: Yes, that distinction is central. The opinion notes the firm is "not on retainer to the City of Blank, nor are we the 'municipal attorney' as referred to in Ethics Opinion No. 81-F-4," which is what keeps this arrangement outside the rule barring a municipal attorney's firm from representing private clients before the city.

Q: Would the answer change if the firm instead represented one of the specific boards it appears before?

A: Yes. The opinion states "if the firm were to be offered employment representing one of the specific Boards, or the members thereof, before which the firm practices, then Opinion No. 81-F-4 would apply to prevent such employment."

Background and rules framework

The opinion distinguished the firm's case-by-case trial defense role from the "municipal attorney" role addressed in Formal Ethics Opinion 81-F-4 (which adopted the "New Jersey Rule" barring an attorney who advises a municipality generally from also representing private clients before it). The modern correlate is Model Rule 1.7 (conflicts of interest), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest), modern correlate

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-4: adopted the "New Jersey Rule" for attorneys representing both a public agency and conflicting private clients

See also

• Tenn. Ethics Op. 81-F-4: County Attorney and the New Jersey Rule
• Tenn. Ethics Op. 84-F-59: County & Dev Board Counsel

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-13

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

81-F-13 - Representation of clients before Boards

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-13

This firm engages in the general practice of law. At various times we represent clients before various entities of the City of Blank. For example, we may represent a client before City Council, the Metropolitan Planning Commission, or in securing long-term contracts from the City of Blank. On the other hand, we have been asked by the City of Blank, specifically the legal department, to do trial work on a case by case basis. The trial work given to us generally has to do with the representation of the City and/or police officers as a result of suits filed by citizens of Blank alleging negligence by police officers and/or civil rights violations.

We are not on retainer to the City of Blank, nor are we the "municipal attorney" as referred to in Ethics Opinion No. 81-F-4.

The representation of the City in specific cases involving tort suits against the City does not involve the attorney in giving general legal advice to the City nor in matters of city policy, as is the case with one who is employed as the City Attorney or one of his assistants. Accordingly, there is no likelihood that the special influence of such attorneys, representing clients before City Boards and the City Council, and in negotiating contracts with the City, will be a factor in the decisions of those municipal entities.

Accordingly, such representation would not constitute a violation of the Canons of Ethics.

If the firm were to be offered employment representing one of the specific Boards, or the members thereof, before which the firm practices, then Opinion No. 81-F-4 would apply to prevent such employment.

This 10th day of July, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD