MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE: February 12, 2008
RE:
City Attorney Representing Person From Whom City Police Seized Motor
Vehicle
The city recorder has the following question: Is it a conflict of interest for the city
attorney to represent a person attempting to recover from the city a motor vehicle seized by the
city police officers in a drug-related case?
I discussed the facts in this case with the city recorder and determined that the city
attorney did not represent any person charged for a criminal violation in connection with the
seizure of the vehicle; his representation was restricted to the representation of the person
attempting to recover his or her seized vehicle from the city.
It does not appear to me that the city attorney’s representation of the person whose
vehicle was seized was necessarily a conflict of interest, at least with respect to the Code of
Professional Responsibility that governs the practice of law by attorneys.
In Tennessee Formal Ethics Opinion 83-F-41, the question was whether a lawyer could
represent criminal defendants prosecuted by the county sheriff and his deputies when the
lawyer’s associate was the county attorney. In answering that question, the Board of Professional
Responsibility of the Supreme Court of Tennessee, referred back to Tennessee Formal Ethics
Opinion 81-F-4:
Tennessee Formal Ethics Opinion 81-F-4 adopted the “New Jersey
Rule,” and quoted the New Jersey Supreme Court as follows:
... the Supreme Court wished to publicize its view of the
responsibility of a member of the Bar when he is an attorney for a
municipality or other public agency and also represents private
clients whose interest 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, [the Court’s emphasis] 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. [Citation omitted by me.]
Tennessee Formal Ethics Opinion 83-F-41went on to declare that:
Tennessee Formal Ethics Opinion 81-F-23 held that it was
improper for a City Attorney to defend a person being prosecuted
in Criminal Court by the City Police Department. The opinion
further quoted the Kentucky Supreme Court as follows: By its very
nature criminal defense is an area of the law that is subjected to
intense public scrutiny. The public demand for professional
independence is great. Canon 9 of the Code states as follows: ‘A
lawyer should avoid even the appearance of impropriety.’- The
point is not whether impropriety exists but that any appearance of
impropriety is to be avoided.... In re Advisory Opinion of Kentucky
Bar Association, supra.
However, in State v. Jones, 726 S.W.2d 515 (1987), the Tennessee Supreme Court
considered the question of whether an attorney whose associate was the county attorney could,
pointing to Tennessee Formal Ethics Opinion 83-F-41, refuse to accept the criminal court’s
appointment of him to represent an indigent criminal defendant. The Court held that whether or
not Formal Ethics Opinion 83-F-41 was right or wrong, the lawyer was required to accept the
court’s order of appointment. But the Court also went on to “pass upon the validity of ethics
opinion 83-F-41 and clarify the status of ethics opinions...to prevent any further prejudice to the
judicial process.” [At 519]
Such opinions did not have the force of law, declared the High Court. With particular
respect to the validity of Ethics Opinion 83-F-41, continued the Court:
it is premised upon the assumption that the county attorney in
every county of this State has an identical lawyer-client
relationship with the sheriff and his deputies or that the mere title
of county attorney creates the appearance of a conflict of interest
that makes it impermissible under any circumstances for the county
attorney to represent a criminal defendant. We do not agree with
either hypothesis.... All agree that Ethics Opinion 83-F-41 clearly
and unambiguously bans all county attorneys, their partners and
associates in the State of Tennessee from representing a criminal
defendant, if the defendant is being prosecuted by county officers.
We find that to be an overbroad interpretation of the Code of
Professional Responsibility. Conflicts of interest, both actual and
perceived, cannot be dealt with by such sweeping blanket
pronouncements. There may be counties in this State where, upon
examination by the trial judge of the lawyer-client relationship
between the county attorney and the sheriff or upon examination of
the perception of the community of that relationship,
disqualification of the county attorney would be necessary. But,
unless and until such an adjudication is made upon an adequate
factual record, each appointment should be examined and a
determination made concerning whether any actual or perceived
conflict of interest exists that would prejudice the defense of the
case under consideration.
The other factual determination to be made before the application
of the ban is whether the criminal defendant is being prosecuted by
county officers. What constitutes “being prosecuted by county
officers” must be determined by the materiality of testimony of the
sheriff or his deputies in making out the ‘State’s proof of the
elements of the offense charged. Of course, it is axiomatic that the
rights of the criminal defendant demand that there be no actual or
perceived conflict of interest that would have any effect
whatsoever upon the defense of the charges pending. [At 520]
But in Tennessee Formal Ethics Opinion 2002-F-146, the question was whether part-time
district attorneys could represent criminal defendants within the same judicial district. The facts
behind that question were that the city attorneys in the Shelby County’s municipal courts were
sworn in as part-time assistant district attorneys, who prosecuted all state criminal actions set in
any municipal courts in the county (where the city provided adequate support for that purpose.)
Those city attorneys who were sworn as part-time district attorneys and prosecuted state cases in
the city courts, also represented criminal defendants in Shelby County’s Sessions court and in the
state criminal courts.
The Board of Professional Responsibility opined that “We believe the current
representation of criminal defendants as set forth in the inquiry is ethically inappropriate.”
The Board adopted the position and reasoning of the American Bar Association on the
question, but pointed to ABA Informal Opinion 1285 (1974) in which:
the ABA opined that municipal attorneys prosecuting municipal
ordinance violations (who handled no state prosecution under the
state statutes in the particular county), could represent criminal
defendants in the county’s criminal courts who were charged solely
with state law violations. This Opinion appears, on first blush, to
be analogous to the facts of the instant inquiry. However, the facts
in the instant inquiry demonstrate that the municipal prosecutors
are also sworn as assistant district attorneys, and that they
prosecute all alleged municipal and state law violations before the
municipal courts in Shelby County. Even though the ABA held in
Informal Opinion 1285 that municipal prosecutors were not per se
disqualified from defending criminal defendants charged with state
violations, the approval given was also carefully limited to
circumstances in which no municipal police officers from the
municipality were involved.
State v. Jones appears to apply to city attorneys as well as to county attorney, and stands
for the proposition that where such attorneys represent defendants in criminal cases, the question
of whether they have a conflict of interest depends upon the circumstances. Tennessee Formal
Ethics Opinion 2002-F-146 takes the position that city attorneys who prosecute state cases cannot
represent criminal defendants in the county’s state courts. I suspect that position would be
supported by the court as a “circumstance” that would generate a prohibited conflict of interest.
But in the City’s case, the city attorney prosecutes only municipal ordinance violations.
More important, he represented a person in the recovery of a vehicle seized by the Police
Department in a drug-related case. The U.S. Supreme Court in United States v. Ursery, 518
U.S. 267 (1996), held that such seizures were not criminal cases, citing three reasons:
1. Congress has historically authorized criminal actions and parallel In rem forfeiture
proceedings based on the same underlying events, and the U.S. Supreme Court has consistently
held that the Double Jeopardy Clause does not apply to such forfeitures because they do not
impose punishment.
2. An In rem civil forfeiture is a remedial civil sanction, which is against the “thing” (the
particular piece of property seized), rather than against a person.
3. Forfeiture is a civil proceedings. The forfeiture statutes and procedural enforcement
mechanisms themselves are distinctly civil in nature. [Also see Stuart v. State, 963 S.W.2d 28
(Tenn.1998).]
For those reasons, an attorney representing a person attempting to have a motor vehicle
seizure set aside is representing that person in a civil proceedings, even though the underlying
events leading to the seizure may involve criminal activity.
The “New Jersey Rule” adopted in Tennessee Formal Ethics Opinion 81-F-4, above,
appears to apply to civil as well as criminal cases. But that Opinion was cited for support in
Tennessee Formal Ethics Opinion 83-F-41, which the Tennessee Supreme Court rejected in State
v. Jones, above, for being too broad. But it strikes me that the Tennessee Supreme Court might
agree that a conflict of interest could exist in some motor vehicle seizure cases where the city
police seized the vehicle in a drug-related case, and where the city attorney is representing the
person attempting to recover the seized vehicle, even though the city attorney prosecutes only
ordinance violation cases, and even though such seizures are civil rather than criminal. But if
that is so, it also stands to reason that State v. Jones would also support the proposition that
whether such a conflict existed in a particular vehicle seizure case would depend upon the
circumstances. It appears to me that under Tennessee Code Annotated, ' 53-11-201 et seq.,
some persons seeking the recovery of seized vehicles might be able to distance themselves from
whatever drug transactions led to the seizure of the vehicle. For example, some such persons
may be holding security interests in the vehicle in question. Indeed, the state carries the burden of
proof by a preponderance of evidence “that the seized property was of a nature making its
possession illegal or was used in a manner making it subject to forfeiture....and the failure to
carry the burden of proof shall operate as a bar to any forfeiture under this chapter.” [Tennessee
Code Annotated, ' 53-11-201(d)(A)(2).]
In short, there does not appear to me that there is a blanket rule that makes every vehicle
seizure falling in the category contemplated by the City’s question a prohibited conflict of
interest.