A lawyer’s most important ethical duties are to clients. These include: • Loyalty • protect the client’s property, (Rule 1.15), • confidentiality, (Rule 1.6), and • avoid conflicts of interest, (Rules 1.7-1.13, 2.2, 3.7, 5.4(c) and 6.3); • Diligence, (Rules 1.2, 1.3, 1.4); • Competence, (Rule 1.1); and • Candor, (Rule 8.4(c)).
a lawyer shall abide by a client’s decisions concerning the objectives of representation and [. . .] shall consult with the client as to the means by which they are to be pursued. RPC 1.2 Who’s decisions must a government lawyer abide? Who does the lawyer consult?
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. RPC 1.13(a) Entities aren’t real people. They can’t speak. Who is the duly authorized constituent?
When a constituent communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6. For example, Rule 1.6 protects the confidentiality of a lawyer’s constituent interviews if the organization asks its lawyer to investigate allegations of wrongdoing. However, the constituents are NOT clients of the lawyer. The lawyer may not disclose information to the constituents unless authorized by the organizational. Comment 2 to RPC 1.13 What constituents are NOT clients for government lawyers?
In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client to the constituent and reasonably attempt to ensure that the constituent realizes that the lawyer’s client is the organization rather than the constituent. RPC 1.13(f) Who should the government lawyer remind that he or she is not the client?
A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. RPC 1.13(g) Who must give written consent?
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. RPC 1.7(a) What situations for a government lawyer create a concurrent conflict of interest?
If a potential conflict appears, the lawyer must advise the constituent that the lawyer cannot represent him or her and recommend independent counsel. • The lawyer must also advise the constituent that their discussions may not be privileged.
Rule 1.13 not clear for government lawyers • The client may be: • elected or appointed official • a specific agency • a branch of government, like the executive branch, or • the government as a whole
Case Study: Cindy Ossias • Lawyer for the California Department of Insurance. • Investigated insurance settlements from the 1994 Northridge earthquake and recommended fines for insurance companies in violation of the law. • Commissioner Chuck Quackenbush, elected official over the Insurance Department, authorized secret settlements. Insurance companies would donate to Quackenbush’s private foundations. • In 2000, Ossias disclosed these secret settlements to state legislators who were investigating the Insurance Department. • Quackenbush placed Ossias on administrative leave and complained to the state bar.
Specific Client Model • Start within the government entity or agency • To what entity was I assigned? • Who has authority to speak for that entity? • Who has authority to speak in this case?
ExampleNRS 228.110 • The Attorney General and the duly appointed deputies of the Attorney General shall be the legal advisers on all state matters arising in the Executive Department of the State Government. • No officer, commissioner or appointee of the Executive Department … shall employ any attorney … unless the Attorney General and the deputies of the Attorney General are disqualified…
Example • What if you are assigned to the Department of Taxation? • Who sets the objectives? Who do you consult? • Executive Director? Tax Commission? • What if the Executive Director and the Tax Commission disagree?
Public Interest Model • Start with the single client model • If there is a conflict between the person with authority and the public interest, then seek a higher authority • Agency < branch < outside branch < the public
Problems representing an Official • Not an entity, so RPC 1.13 would not apply • Wouldn’t represent other constituents • Whistleblower protections would not apply • Can you be zealous if the official has conflicting positions with other agencies, the branch, other branches, or the public interest?
Problems representing the Agency • Inherent conflicts • The Attorney General represents most state agencies • Who determines the ultimate objectives? • With whom do you consult as to the means to pursue an action?
Problems representing the Entire Government • Separation of Powers • Can’t represent the executive, legislative, and judicial branch simultaneously • Even various agencies within a branch face inherent conflicts
Problems representing the Public Interest • How does the lawyer determine the public interest? • Political views could affect how the lawyer views the public interest. • Who gives direction to the lawyer? Who is the decisionmaker?
In re Grand Jury Subpoena886 F.2d 135 (6th Cir. 1989) • Federal prosecutor sought meeting minutes from Detroit City Council • During the closed sessions corporate counsel, who represents city administration, attended to discuss condemnation proceedings • Detroit government is bifurcated into legislative (council) and executive (administration), the City Council had an independent attorney present • City Council must order condemnation, but administration and corporate counsel take action by filing suit
In re Grand Jury Subpoena886 F.2d 135 (6th Cir. 1989) • Federal district court found no attorney-client privilege because corporation counsel traditionally represented administration and city council hired independent counsel. • 6th Circuit reversed and remanded because: • City code requires City council to approve and send to corporation counsel to file suit • Condemnation proceedings were filed in the name of the City of Detroit • Although City Council hired outside council, they had no authority to file suit
Reed v. Baxter134 F.3d 351 (6th Cir. 1998) • Two city councilmen receive constituent complaints and call a meeting with the fire chief, city manager, and city attorney to investigate a fire department promotion. • During the meeting, the city attorney informed the councilmen that he had advised the fire chief to promote an African-American because of a prior controversy. • Applicants passed over for captain in the fire department file reverse discrimination suit and want to depose participants.
Reed v. Baxter134 F.3d 351 (6th Cir. 1998) • Not a city council meeting (would have been open anyway) • City code made city council board of appeals for EEOC complaints • Councilmen called the meeting in response to complaints from constituents about the promotion process • The interests of the councilmen and the interests of the city executives were not the same • The councilmen were not clients at a meeting with their lawyer, but elected officials investigating the executive branch
Civil Serv. Comm’n v. Superior Court209 Cal. Rptr. 159, 164 (Cal. Ct. App. 1985) • San Diego County has a subordinate agency, the Civil Service Commission. • Commission investigates personnel complaints filed by county employees and empowered to make rulings based on those investigations. • Two laid-off employees filed complaints against the County’s department of social services. • Commission staff consulted with county counsel during the investigation. • Commission ordered reinstatement of the affected employees. • County sued and kept county counsel. • Commission obtained independent counsel and moved to disqualify county counsel.
Civil Serv. Comm’n v. Superior Court209 Cal. Rptr. 159, 164 (Cal. Ct. App. 1985) • Commission is a County agency, but it is quasi-independent • County Board supervises most county agencies, but not the Commission • County charter requires the Board to appeal Commission rulings • “Where an attorney advises or represents a public agency with respect to a matter as to which the agency possesses independent authority, such that a dispute over the matter may result in litigation between the agency and the overall entity, a distinct attorney-client relationship with the agency is created.”
Whistleblower ProtectionsRPC 1.13(b) • IF constituent action is or would be • A violation of the organization’s legal obligation; AND • Likely to result in substantial injury to the organization • THEN the lawyer shall refer the matter to higher authority in the organization.
Whistleblower ProtectionsRPC 1.13(b) • Ask the constituent to reconsider unless the matter requires immediacy. • Before blowing the whistle consider: • the seriousness of the violation and its consequences, • the responsibility in the organization and the apparent motivation of the person involved, and • the policies of the organization concerning such matters. • Reveal only the minimum amount of information necessary.