Can a law firm defend coal mining clients against federal surface-mining violations when one of the firm's partners sits on the state's quasi-judicial Board of Reclamation Review?

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 Treat this page as historical context, not current guidance.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 law firm asked whether it could represent coal mining clients regarding a notice of violation or cessation order issued by the federal Office of Surface Mining, when one of the firm's partners was a member of the state Board of Reclamation Review, a similar state agency. Surface mining in Tennessee was regulated under an interim program by both federal and state law: the federal law was enforced through the Office of Surface Mining, an administrative law judge, the Board of Surface Mining and Reclamation Appeals, and the federal district court, while state violations were reviewed through the Commissioner of Conservation, the Board of Reclamation Review, and the Chancery Court. No firm member was associated with enforcement of the federal regulations, and the state board had no jurisdiction to review federal notices of violation, though an act violating federal law would in most instances also violate state law.

The partner, as a member of the Board of Reclamation Review, participated in adjudicatory hearings on surface-mining regulations, reclamation of mined lands, and pollution control, and was barred from having a financial interest in the mining industry or a related business.

The Board concluded that accepting a quasi-judicial position requiring the lawyer to conduct hearings and decide issues about state strip-mining violations bars him and his firm from acting as attorney for individuals or firms charged with similar federal violations, because the public and private interests are inconsistent, diverse, discordant, and incompatible. Such a practice would diminish public confidence in the administration of justice at both the federal and state level and would create a serious conflict between the lawyer's private client interests and the public interest the lawyer serves in adjudicating similar matters. The Board relied on ABA Ethics Opinions 16, 30, 34, 77, 118, and 134 on adverse influences and conflicting interests for public officers, and ABA Ethics Opinion 49, which held that a lawyer who has acted in a judicial capacity should refrain from employment that might reasonably appear to involve similar facts. It noted, separately, that whether the partner's firm membership independently disqualified him from the Board due to a financial interest in mining was a legal question outside the scope of an ethics inquiry.

Common questions

Q: Can a firm defend clients against federal mining violations if one partner adjudicates similar violations for the state?

A: No. The opinion concludes "it is improper for a member of the law firm to defend private interests of individuals or firms charged with violations of similar federal regulations adverse to the interests of the state agency or public body which a member of the firm represents in a quasi-judicial capacity."

Q: Does it matter that no firm member is involved in enforcing the federal regulations?

A: No, because the concern is the partner's quasi-judicial state role, not the firm's role in federal enforcement. The opinion states the acceptance of the quasi-judicial position "bars him and members of his firm from acting as attorney for individuals or firms charged with similar federal violations," regardless of the firm's lack of involvement on the federal enforcement side.

Q: What is the underlying concern with this arrangement?

A: The opinion explains that "the public and private duties are incompatible and the prestige of the public office [is] diverted to the private benefit and thereby demeaned," and that the practice "would not only diminish public confidence in the administration of justice at both the federal and state level, but would produce serious conflict between the private interests of the lawyer representing clients and the public interest of the lawyer adjudicating similar matters."

Background and rules framework

The opinion applied general conflict-of-interest principles for lawyers holding public or quasi-judicial office, drawing on ABA Ethics Opinions 16, 30, 34, 49, 77, 118, and 134. The modern correlates are Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (successive government and private employment), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (special conflicts for former and current government officers), modern correlates

Other opinions cited:

• ABA Ethics Opinions 16, 30, 34, 77, 118, and 134: adverse influences and conflicting interests for attorneys who are public officers
• ABA Ethics Opinion 49: a lawyer who has acted in a judicial capacity should refrain from employment reasonably appearing to involve the same facts

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-15

Original opinion text

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

81-F-15 - Public Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-15

An inquiry has been made as to whether or not a law firm is precluded from representing clients engaged in coal mining in this state regarding a notice of violation or cessation order issued by the federal agency, Office of Surface Mining, when one of the law partners is a member of a similar state agency, Board of Reclamation Review.

Surface mining in Tennessee is regulated by both federal and state law. The federal law provides for an interim program during which both federal and state regulations apply. The federal law is enforced by the Office of Surface Mining whose agents and inspectors may issue a Notice of Violation and in instances of imminent danger to the environment, or when the subject of a Notice of Violation has not been corrected, may issue a cessation order. The enforcement of the federal regulations occur through the Office of Surface Mining, an Administrative Law Judge, the Board of Surface Mining and Reclamation Appeals and the United States District Court, all federal agencies.

No member of the law firm is associated in any way with the enforcement of the federal surface mining regulations.

State regulation of surface mining is enforced through state law by state inspectors who are empowered to notify holders of mining permits in writing of any violation of the state law. Review of a state notice of violation is through the Commissioner of Conservation, the Board of Reclamation Review and the Chancery Court, all state agencies. A partner of the law firm is a member of the State Board of Reclamation Review and he is precluded from having a financial interest in the mining industry or in any related business.

There is no jurisdiction in the State Board for review of a notice of violation or cessation order issued by federal inspectors; however, an act that is in violation of federal law in most instances would also be a violation of state law.

The attorney, as a member of the Board of Reclamation Review, participates in adjudicatory hearings concerning regulations relating to surface mining, reclamation of surface mined lands, control of pollution of water and soil affected by surface mining to achieve soil stabilization, control soil erosion and obliterate the scars of stripping operations.

The acceptance of a quasi-judicial position which calls upon the lawyer to conduct hearings and determine issues concerning violations of state strip mining regulations bars him and members of his firm from acting as attorney for individuals or firms charged with similar federal violations. The public and private interests are inconsistent, diverse, discordant and incompatible. Such a practice would not only diminish public confidence in the administration of justice at both the federal and state level, but would produce serious conflict between the private interests of the lawyer representing clients and the public interest of the lawyer adjudicating similar matters. The public and private duties are incompatible and the prestige of the public office diverted to the private benefit and thereby demeaned.

Ethics Opinions 16, 30, 34, 77, 118 and 134 of the American Bar Association Committee on Professional Ethics (ABA) relate to adverse influences and conflicting interests and pass on questions concerning the propriety of the conduct of an attorney who is a public officer in representing private interests adverse to those of the public body which he represents. The principles applied in those opinions is that an attorney holding public office should avoid all conduct which may tend to lead the layman to conclude that the attorney, or law firm, is utilizing a public position to further the professional success or personal interests of the attorney or law firm.

Ethics Opinion 49 of the ABA has held that a lawyer who has occupied a judicial position or acted in a judicial capacity should refrain from accepting employment which might reasonably appear to involve similar facts upon which he acted in a judicial capacity.

Ethics Opinion 30 of the ABA points out that an attorney in the public employ should conduct himself so as to remain above all suspicion, even at personal sacrifice.

It is improper for a member of the law firm to defend private interests of individuals or firms charged with violations of similar federal regulations adverse to the interests of the state agency or public body which a member of the firm represents in a quasi-judicial capacity.

The question of whether or not the member of the firm is precluded from serving on the State Board due to a financial interest in the mining industry or in any related business is a legal question and is not the proper subject matter of an ethical inquiry.

This 26th day of August, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD