Can a county attorney simultaneously represent the county and a county-created industrial development board on bond financing matters?

Currency note

This opinion was issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Formal Ethics Opinion 86-F-107(a) later overruled the Board's prior line of per se governmental-conflict opinions, including this one, "to the extent inconsistent" with a case-by-case approach. Treat this page as historical context, not current guidance.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 county attorney asked whether he could simultaneously represent the county and an industrial development corporation (the County Industrial Development Board) that the county had created under Tenn. Code Ann. 7-53-101 et seq. to issue bonds for industrial, commercial, and trade-related projects. The opinion described the attorney's role in a typical bond financing as reviewing and explaining the documents to the Board, confirming that the Board served only as a conduit for the bond proceeds and was indemnified from liabilities, and rendering an opinion that the Board was lawfully organized and empowered to enter the transaction.

The opinion applied Disciplinary Rules 5-105(A) and (B) of the Code of Professional Responsibility, which required a lawyer to decline or discontinue employment that would adversely affect the lawyer's independent professional judgment or involve representing "differing interests," defined in the Code as "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client." It looked to authority finding no conflict where one attorney serves two related public bodies absent antagonism: ABA Informal Opinion 1244 (1972), which found generally no conflict in one attorney representing a township in enacting a zoning ordinance and also representing its zoning hearing board, and New York State Ethics Opinion 501 (1979), which found independent counsel necessary only once two public boards' relationship turns antagonistic to the point of suit.

The opinion concluded that, in the absence of antagonistic interests between the county and the industrial development board and the absence of any other interest impairing the attorney's independent professional judgment, the county attorney could simultaneously represent the county and the industrial development corporation the county created.

Common questions

Q: Can a county attorney also serve as counsel to a county-created industrial development board?

A: Yes, absent antagonism. The opinion concluded that "[i]n the absence of antagonistic interests between the county and the industrial development board and the absence of any other interest which would cause the impairment of the independent professional judgment of the attorney, the county attorney may simultaneously represent the county and an industrial development corporation created by the county."

Q: What would change that answer?

A: Antagonism between the two bodies. The opinion relied on New York State Ethics Opinion 501, which found that once "the relationship between the two boards has become antagonistic to the point where one seeks to institute suit against the other," independent counsel must be retained; the permission rests on the absence of that conflict.

Q: What rule did the opinion apply?

A: Disciplinary Rules 5-105(A) and (B) of the Code of Professional Responsibility, which barred accepting or continuing employment that would adversely affect the lawyer's independent professional judgment or involve representing "differing interests," defined as "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client."

Background and rules framework

The opinion applied Disciplinary Rules 5-105(A) and (B) of the Tennessee Code of Professional Responsibility (the conflict-of-interest provisions then in force) together with the Code's definition of "differing interests." The modern correlate is Model Rule 1.7 (conflicts of interest: current clients), noted here as a navigational cross-reference rather than a rule the opinion itself applied. The opinion drew on ABA Informal Opinion 1244 (1972) and New York State Ethics Opinion 501 (1979) for the principle that one attorney may serve two related public bodies absent antagonism between them. Formal Ethics Opinion 86-F-107(a) later replaced the Board's per se governmental-conflict line with a case-by-case approach.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) and (B) (Tennessee Code of Professional Responsibility), declining or continuing employment involving differing interests
• Model Rule 1.7 (conflicts of interest: current clients), modern correlate

Statutes:

• Tenn. Code Ann. 5-15-305 (county attorney's duties)
• Tenn. Code Ann. 7-53-101 et seq. (industrial development boards)

Other opinions cited:

• ABA Informal Opinion 1244 (1972): one attorney representing a township and its zoning hearing board
• New York State Ethics Opinion 501 (1979): independent counsel required once two public boards become antagonistic

See also

• Tennessee Op. 81-F-13: Representing Clients Before City Boards While Defending the City
• Tennessee Op. 84-F-60: County Attorney Defending Criminal Cases Against Sheriff's-Office Witnesses
• Tennessee Op. 86-F-107(a): Governmental Attorney Conflicts Decided Case-by-Case
• Tennessee Op. 86-F-107: Governmental Attorney Per Se Conflict Rules (Vacated)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-59

Original opinion text

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

84-F-59 - County Attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 84-F-59

The county attorney has inquired if he may simultaneously represent the county and an industrial development corporation created by the county.

The county attorney's duties are substantially the same as those set forth in TCA 5-15-305, which are to:

... serve as legal advisor to the (County) --- and all county boards, commissions, departments, offices and agencies; act as counsel for the county in any proceeding instituted by or against the county; and perform any other legal duties prescribed by (law) --- (emphasis added)

The county authorized the creation of the County Industrial Development Board pursuant to TCA 7-53-101 et seq. The Board is a public instrumentality of the county created to issue bonds for financing industrial, commercial and trade related projects for the county. The Board is authorized to employ such employees, including attorneys, as necessary to carry out the business of the Board.

In the typical bond financing transaction, the role of the attorney for the Board is to review and explain the documents to the Board and to ascertain that the Board is merely a conduit for the bond proceeds and is indemnified from liabilities. The attorney must also render an opinion that the Board is lawfully organized and empowered to enter into the bond transaction.

Disciplinary Rules 5-105(A) and (B) of the Code of Professional Responsibility provide, in part:

DR 5-105. REFUSING TO ACCEPT OR CONTINUE EMPLOYMENT: The Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.

(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests ....

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests ....

Differing interests are defined in the Code as:

... every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.

The American Bar Association Standing Committee on Ethics and Professional Responsibility stated in ABA Informal Opinion 1244 (1972):

(G)enerally no conflict of interest exists which would make it inappropriate or unethical for the same attorney to represent the Township in connection with those procedures culminating in the enactment of a zoning ordinance, and also the Zoning Hearing Board, in any hearing in which it is administering the ordinance or taking testimony in order to determine the validity of an ordinance.

The New York State Bar Association Committee on Ethics stated in New York State Ethics Opinion 501 (1979):

When ... the relationship between the two boards has become antagonistic to the point where one seeks to institute suit against the other, the theoretical harmony of their relationship must give way to the reality of their conflicting interests. Under such circumstances, we believe that counsel fully independent from the office of the town attorney should be retained to represent the zoning board of appeals ... The duty owed to the town board by the office of the town attorney, when coupled with that Board's preeminent authority, precludes the exercise of independent professional judgment on the part of an assistant regularly employed in the office of the town attorney concerning matters adverse to the interests of the town board. Any such assistant would virtually be required to serve two masters if asked to undertake the representation of a zoning board of appeals against which the town board has determined to bring suit.

In the absence of antagonistic interests between the county and the industrial development board and the absence of any other interest which would cause the impairment of the independent professional judgment of the attorney, the county attorney may simultaneously represent the county and an industrial development corporation created by the county.

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

F. Evans Harvill

William R. Willis

APPROVED AND ADOPTED BY THE BOARD