If a lawyer serves as a county's attorney, can the lawyer's firm represent land developers, contractors, or other private clients whose matters come before the county?

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 (including Formal Ethics Opinions 81-F-11, 81-F-13, 83-F-41, 83-F-53, 83-F-56, and 86-F-107) applied and refined this line of guidance. Treat this page as historical context, not current guidance.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 Hamilton County law firm asked the Board whether a firm member could serve as county attorney while the firm engaged in a comprehensive general practice, a considerable part of which involved representing land developers in the county. Because the initial request posed hypothetical questions, Disciplinary Counsel first issued an informal Advisory Ethics Opinion; the firm then resubmitted the request with specific factual situations for a formal opinion.

The Board found the answer generally in Disciplinary Rule 5-105 and its ethical considerations, and adopted what it called the "New Jersey Rule" from In Re: A. & B. (1965) and In Re: Dolan (1978). Under that rule, an attorney may not represent both a governmental body and a private client merely because disclosure was made and both are agreeable, and where the public interest is involved, an attorney may not represent conflicting interests even with everyone's consent. A municipal or agency attorney has an affirmative duty to disclose the conflict immediately, withdraw completely from representing both sides on the matter, and recommend the municipality retain independent counsel; disclosure alone does not cure the conflict. No attorney holding public office should let anyone try to gain an advantage from the attorney's official status. Land development in particular carries such a high likelihood of transactions with a municipality, given zoning applications, subdivisions, building permits, and code compliance, that a bar member should not represent a developer operating in a municipality where the member is municipal attorney or holds another municipal office of apparent influence. The New Jersey court held such dual representation forbidden even where the attorney advises neither side on the specific matter, because the dual representation itself is contrary to the public interest.

Applying that rule to the firm's five specific questions, the Board held: (1) the firm is disqualified from representing land developers operating in the county, anyone contracting with the county, recipients of county appropriations, or other clients before the county, though this does not bar representing such clients on land development outside the county or within municipalities inside the county the county does not regulate; (2) the firm may not represent other clients before county officials and agencies on contracts or other non-litigation matters even where the county is represented by separate counsel, because a client could too easily seek advantage by retaining the county attorney's firm; (3) the firm may not represent clients in matters before joint municipal-county bodies like a Planning Commission or Air Pollution Control Bureau, because the county attorney's advice is available to those bodies and gives the firm special influence; (4) the firm may represent clients whose interests differ from the State of Tennessee, so long as no county interest is directly involved and the county attorney's official duties are unrelated to the matter; and (5) the same answer applies to clients whose interests differ from the City of Chattanooga or other municipalities.

Common questions

Q: Can a county attorney's firm represent land developers operating in the same county?

A: No. The opinion concludes the firm "is disqualified from representing in any manner all land developers operating in Hamilton County," following the New Jersey Rule that dual representation involving land development in the county attorney's own jurisdiction "is forbidden."

Q: Does it matter that the county is represented by different lawyers in the specific matter?

A: No, the firm is still barred. The opinion holds the New Jersey Rule "prohibits this type representation since it is all too easy for a client to attempt to gain some advantage by virtue of the official status of his counsel."

Q: Can the county attorney's firm represent clients whose interests conflict with the State or other municipalities, rather than the county itself?

A: Yes, generally. The opinion states "we do not deem it a conflict of interest for the county attorney in his private capacity to represent clients whose interests conflict with those of the State, so long as no interest of the county government is directly involved."

Background and rules framework

The opinion applied Disciplinary Rule 5-105 (refusing employment when the interests of another client may impair independent judgment) of the Tennessee Code of Professional Responsibility, adopting the "New Jersey Rule" from In Re: A. & B. and In Re: Dolan. The modern correlates are Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (special conflicts of interest for former and current government officers and employees), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (refusing to accept or continue employment if the interests of another client may impair independent professional judgment), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (successive government and private employment), modern correlates

Cases:

• In Re: A. & B., 44 N.J. 331, 209 A.2d 101 (1965), origin of the "New Jersey Rule" barring dual representation of a public body and a private client
• In Re: Dolan, 76 N.J. 1, 384 A.2d 1076 (1978), reaffirming the New Jersey Rule

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-4

Original opinion text

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

81-F-4 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-4

Under date of October 17, 1980, the Ethics Committee of the Disciplinary Board of the Supreme Court of Tennessee received a request from a law firm in Hamilton County for a formal ethics opinion pursuant to Rule 42, Section 26. Under date of November 21, 1980, Disciplinary Counsel issued an Advisory Ethics Opinion No. 80-A-47 in view of the fact that the request posed hypothetical questions rather than specific factual situations. Subsequently, on December 6, 1980, the firm reiterated its request for a formal ethics opinion, setting out therein specific factual situations for consideration of the Ethics Committee.

The request concerned generally whether or not a member of the law firm could serve as county attorney while his firm engaged in a comprehensive general practice, a considerable portion of which involved the representation of land developers in the county.

Answer to these questions is generally found in Disciplinary Rule 5-105 of the Code of Professional Responsibility, together with the ethical considerations thereunder which have been adopted by the Supreme Court of Tennessee.

The Ethics Committee adopts what we will call the "New Jersey Rule" as set forth in the 1965 case of In Re: A. & B., 44 N.J. 331, 209 Atl.(2d) 101, and the 1978 case of In Re: Dolan, 76 N.J. 1, 384 Atl.(2d) 1076. We quote from the former case as follows:

'... an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests ...'Where public interest is involved, he may not represent conflicting interests even with consent of all concerned ...'

'... the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances, the Supreme Court considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.'

'... 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, and hence, it would be improper for an attorney so situated to accept a retainer if he is aware that the prospective client has that objective in mind.'...

'Nonetheless, the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. We all know from practical experience that the very nature of the work of the developer involves a probability of some municipal action, such as zoning applications, land subdivisions, building permits, compliance with the building code, etc.'

'It is accordingly our view that such dual representation is forbidden, even though the attorney does not advise either the municipality or the private client with respect to matters concerning them. The fact of such dual representation itself is contrary to the public interest.'

1. The first question presented is, "Is the firm disqualified from representing in any manner all land developers operating in Hamilton County, any persons who contract with the County, the recipients of appropriations from the County, or any other types of present or potential clients, because of our representation of Hamilton County?" Following that, the firm's letter of request states, "If Tennessee were to have the prophylactic rule like that in New Jersey, and if its broadest interpretation were followed in Tennessee, we would have conflicts of interest which could not be resolved by our continued representation of Hamilton County." We believe the answer to this question in the affirmative then becomes self-evident. This would not disqualify representation of such clients in development of land outside the county or within municipalities inside the county not regulated in any way by the county.

2. The second question is, "May the firm represent other clients before county officials and agencies, with regard to contracts, and in other matters (except litigation) affecting Hamilton County when the County is represented by other counsel with respect to whom the firm has no supervisory or other responsibility?" The adoption of the New Jersey Rule prohibits this type representation since it is all too easy for a client to attempt to gain some advantage by virtue of the official status of his counsel; that is, retaining the county attorney even though the county in that particular matter may be represented by other counsel.

3. The third question is, "May the firm represent clients in matters not directly affecting Hamilton County before the Planning Commission, the Air Pollution Control Bureau, and other local governmental agencies which are the joint creation of municipal and Hamilton County governments?" Adoption of the New Jersey Rule prohibits such. Since the legal advice of the county attorney is available to such bodies, he would have special influence with them by virtue of his relationship to them.

4. The next question is, "May the firm represent, both in litigation and in matters not involving litigation, clients whose interests differ from that of the State of Tennessee?" We do not deem it a conflict of interest for the county attorney in his private capacity to represent clients whose interests conflict with those of the State, so long as no interest of the county government is directly involved, and so long as the official duties of the county attorney are in no way related to the matter or litigation.

5. The next and last question is, "May the firm represent, both in litigation and in matters not involving litigation, clients whose interests differ from that of the City of Chattanooga and other municipalities?" On the face of this question, we see no conflict of interest in such representation, and the answer would be the same as that to question No. 4.

This 14th day of January, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings, Sr.

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD