SERVING THE TRIBAL CLIENT’S INTERESTS

SERVING THE TRIBAL CLIENT’S INTERESTS (WHICH CAN—AND MOST OFTEN WILL—MEAN SACRIFICING YOUR OWN INTERESTS) Brian L. Lewis Greenberg Traurig, LLP

FIRST, YOU NEED TO IDENTIFY WHO THE CLIENT IS. • American Indian Nations Are Governmental Institutions and Organizations (That May Also Operate as Commercial Organizations in Various Forms). • ER 1.13 Provides the Rules for Organizations as Clients. • ER 1.13(a): The institution/organization—as a separate legal entity—is the client, which acts through its authorized officials, officers, and employees. • KEY – The institution itself is the client; not the people who act on its behalf.

IDENTIFYING THE CLIENT (JUST IN-CASE YOU MAY ACTUALLY BE SERVING AS A GOVERNMENT ATTORNEY) • Those representing wholly owned subordinate economic instrumentalities of the government: • Have a duty to protect and promote the public trust; • Have particular fiduciary duties beyond those of general care, competency and loyalty; and • Have responsibilities to the instrumentality, entity or enterprise of the government and the government itself. • Discussion of case law rules, including recent case Navajo Nation Oil and Gas Co. v. Window Rock Dist. Ct. and R. Joe, No. SC-CV-25-14 (Nav. Sup. Ct. June 20, 2014).

SECOND, YOU NEED TO SERVE THE CLIENT. • ER 1.1 – COMPETENCE • “A lawyer [or tribal court advocate] shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (emphasis added). • Comment [1] – • “In many instances, the required proficiency is that of a general practitioner.” • “[For] particular matter[s], relevant factors include[:] • the relative complexity and specialized nature of the matter, • the lawyer’s [or tribal court advocate’s] general experience, • the lawyer’s [or tribal court advocate’s] training and experience in the field in question, • the preparation and study the lawyer is able to give the matter and • whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

SERVING THE CLIENT • Competence • Comment [2] – “A lawyer need not necessarily have special training or prior experience . . . A newly admitted lawyer [or tribal court advocate] can be as competent as a practitioner with long experience. • Some important legal skills . . . are required in all legal problems. • Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve . . . • A lawyer can provide adequate representation in a wholly novel field through necessary study. • Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” (emphasis added).

SERVING THE CLIENT • Competence • Comment [5] – “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. • It also includes adequate preparation. • The required attention and preparation are determined in part by what is at stake . . . .” (emphasis added).

SERVING THE CLIENT • Competence – Emergencies • Comments [3] and [4] – In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical . . . • [H]owever, assistance should be limited to that reasonably necessary in the circumstances [to avoid jeopardizing] . . . • A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. . .” (emphasis added).

SERVING THE CLIENT • KEYS TO COMPETENCE – • Some matters you encounter will be more complex or call for a higher degree of specialized knowledge than you have at that time, and everyone is presented with an emergency at some point. • Employing fundamental legal skills, and working to perform the necessary study and adequate analysis to address the matter may remedy your shortfall(s). • Alternatively, one’s associating with other professionals who possess more experience or specialized knowledge in the field may remedy shortfall(s). • You can competently serve your tribal client with work – the more complex and high stakes the matter, the more work you will have to perform to serve the client.

SERVING THE CLIENT • ER 1.3 – DILIGENCE • “A lawyer [or tribal court advocate] shall act with reasonable diligence and promptness in representing a client.” • Comment [1] — A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer [or tribal court advocate], and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. • A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. • A lawyer is not bound [] to press for every advantage that might be realized . . .” (emphasis added).

SERVING THE CLIENT • Comment [2] — • “[W]ork load must be controlled so that each matter can be handled competently” • Comment [3] — • “Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions . . . • A lawyer's duty . . . does not preclude the lawyer from agreeing to a reasonable [] postponement that will not prejudice the [] client.” • Comment [4] — • “Unless [] terminated [via] Rule 1.16, a lawyer [or tribal court advocate] should carry through to conclusion all matters undertaken for a client. • If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved . . . • [T]he client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. • Doubt . . . should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose [otherwise to its detriment].”

SERVING THE CLIENT • KEYS TO DILIGENCE – • When there is any conflict between your interests and the client’s interests, your interests are second to the client’s interests. • Do not procrastinate. • Prioritize your matters, and lighten your work load when necessary to best serve the client’s interests. • Although agreeing to continuances is permitted (and may even promote your client’s long-term goals), such agreements cannot be entered into when prejudice to the client’s interests is possible. • Carry your representation out to the very end (e.g., entry of final judgment in the highest tribunal). • When in doubt, take the initiative to speak with the client (or the supervising legal official in your office) to be clear about the relationship.

THIRD, THE LAWYER MUST ACT TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS – EVEN WHEN THIS IS UNCOMFORTABLE OR NOT IN THE LAWYER’S OWN BEST INTERESTS ER1.13(b) — “If a lawyer [or tribal court advocate] for an organization knows (or should know) that an officer, employee or other person associated with the organization is engaged in action, intends to act[,] or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer [or tribal court advocate] shall proceed as is reasonably necessary in the best interest of the organization.”

ACTING TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS • knows (or should know) that an officer, employee or other person associated with the organization is[:] • engaged in action, • intends to act[,] or • *refuses to act* in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and • that is likely to result in substantial injury to the organization, • then the lawyer [or tribal court advocate] shall proceed as is reasonably necessary in the best interest of the organization.” (emphasis added).

ACTING TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS • ER 1.13(b) — • “Unless the lawyer [or tribal court advocate] reasonably believes (note: discretionary) that it is not necessary in the best interest of the organization to do so, • the lawyer [or tribal court advocate] shall (note: mandatory) refer the matter to higher authority in the organization, including, if warranted by the circumstances (note: reasonable person standard) to the highest authority that can act on behalf of the organization as determined by applicable law.”

ACTING TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS • ER 1.13(c) — • “[D]espite the lawyer’s [or tribal court advocate’s] efforts . . . The highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, • that is clearly a violation of law,and [] • the lawyer [or tribal court advocate] reasonably believes (note: discretionary, with reasonable person standard to be applied ex post) that the violation is reasonably certain (note: discretionary, with reasonable person standard to be applied ex post) to result in substantial injury (note: reasonable person standard) to the organization, • THEN . . .

ACTING TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS • “[T]he lawyer may (discretionary) reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, • but only if(discretionary) and to the extent the lawyer reasonably believes (discretionary with reasonable person standard applied ex post) necessary to prevent substantial injury to the organization.” (emphasis added). • This does not apply to “information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.” ER 1.13(d).

ACTING TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS • ER 1.13(e) — This duty to the institutional/organizational client may continue even after termination of employment. • ER 1.13(f) & (g) — The lawyer or tribal court advocate may also represent the institution’s/organization’s personnel with proper authorization from the other necessary personnel within the institution/organization; • However, at the outset of discussing such representation, the lawyer or tribal court advocate must inform the institution’s/organization’s personnel at the outset of any potential conflicts of interest with the client’s interests. • The principles of sovereign immunity and ultra vires conduct provide whether such representation is permissible, and the scope of such representation. • E.g.: The Navajo Nation Department of Justice defends actions brought against officials in their official capacities, 2 N.N.C. § 1961(B) (stating the NNDOJ’s purpose “is to provide legal services to the Navajo Nation government . . .”), and in their individual capacities until a court determines as a matter of law that their actions were ultra vires. Compare 2 N.N.C. §§ 1964(B), (F), and (I) (providing for NNAG to authorize representations of the Nation’s personnel until court holds otherwise). • Note: ER 1.13(f) — A lawyer/tribal court advocate should always identify and communicate any potential conflicts of interest with the client’s interests to the client’s personnel at the time such potential conflicts are known or reasonably should be known.

KEYS TO PROMOTING AND PROTECTING THE TRIBAL CLIENT’S BEST INTERESTS • IDENTIFY THE CLIENT • KNOW THE CLIENT’S BEST INTERESTS, ANDSERVE THE CLIENT’S BEST INTERESTS THROUGH BEING COMPETENT AND DILIGENT • COMMUNICATE, INFORM, AND BE FAIR WITH THE CLIENT’S OFFICERS, PERSONNEL AND AGENTS AT ALL TIMES • TAKE ACTION TO PROMOTE AND PROTECT THE CLIENT’S BEST INTERESTS WHEN OTHERS ARE ACTING, INTENDING TO ACT, OR FAILING TO ACT, AND SUCH ACTS, INTENDED ACTS, OR FAILURES ARE HARMFUL TO THE CLIENT’S BEST INTERESTS – AND • TAKE SUCH ACTION, DESPITE THE DISCOMFORT OR HARM TO YOUR OWN INTERESTS THAT TAKING SUCH ACTION MAY CREATE FOR YOU OR OFFICERS, PERSONNEL AND AGENTS OF THE ORGANIZATIONAL CLIENT.

SPECIAL CONFLICTS OF INTEREST FOR FORMER & CURRENT GOVERNMENT ATTORNEYS • ER 1.11(d)(1): makes current government attorneys subject to ER 1.7 (Conflicts of Interest: Current clients) and ER 1.9 (Duties to Former Clients). • 2 N.N.C. § 3748(A): “When a public official or employee is required to take official action on a matter in which [he or she] as a personal economic interest [and eliminating the interest is not feasible], such public official or employee shall: • 1. Prepare and sign a written statement describing the matter requiring action and the nature of the potential conflict . . . and [he or she] shall deliver copies of such statement to the responsible party for inclusion in the official record of any vote or other decision or determination and also to the [Office of Hearings and Appeals – or perhaps Ethics and Rules Office]; - cont’d -

SPECIAL CONFLICTS OF INTEREST FOR FORMER & CURRENT GOVERNMENT ATTORNEYS • 2. Abstain from [taking any official action or trying] . . . To influence any vote, official decision or determination [that] could favor or advance such person’s personal economic interest in such matter; and • 3. Abstain from voting or otherwise participating in the official decision or determination of such matter, unless otherwise directed by the authorized presiding official of the governmental body making such decision or determination, or otherwise legally required by law . . . , or unless such person’s vote, position, recommendation or participation is contrary to their personal economic interest.

SPECIAL CONFLICTS OF INTEREST FOR FORMER & CURRENT GOVERNMENT ATTORNEYS • ER 1.11(a)(1): expressly makes government attorneys subject to ER 1.9 –Duties to Former Clients. • ER 1.11(a)(2) states: “a lawyer who has formerly served as a public officer or employee of the government: . . . Shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless [informed consent given.]” (emphasis added). • 2 N.N.C. § 3751(A): “in which such former public official or employee personally and substantially participated, through approval, disapproval, recommendation, rendering of advice, investigation or otherwise . . . .” • 2 N.N.C. § 3751(B): “With respect to any such matter [that] was actually pending among such former public official’s or employee’s responsibilities, but in which such person did not participate as set forth in Subsection (A), the prohibitions set forth hereunder shall apply for the period of two years [after the end of his or her government employment.]” (emphasis added).

KEYS TO AVOIDING CONFLICTS OF INTEREST • IDENTIFY AND DISCLOSE ACTUAL OR POTENTIAL CONFLICTS AS SOON AS POSSIBLE • ERR ON THE SIDE OF CAUTION AND ABSTAIN – FROM ANY SITUATION THAT COULD EVEN POTENTIALLY REASONABLY CREATE AN APPEARANCE OF IMPROPRIETY • IF COMPLETE ABSTENTION IS NOT FEASIBLE, PREPARE A WRITTEN AND SIGNED STATEMENT DESCRIBING THE MATTER THAT REQUIRES ACTION AND THE NATURE OF THE POTENTIAL CONFLICT, AND DELIVER THIS STATEMENT TO OHA OR THE E & R OFFICE, AND THEN – • ABSTAIN FROM PARTICIPATION IN THE MATTER TO THE GREATEST DEGREE POSSIBLE

KEYS TO AVOIDING CONFLICTS OF INTEREST • AFTER PUBLIC SERVICE ENDS – • AVOID MATTERS IN WHICH YOU PARTICIPATED PERSONALLY AND SUBSTANTIALLY (UNLESS YOU GET PROPER CONSENT) • AVOID MATTERS THAT WERE OTHERWISE ACTUALLY PENDING AMONG YOUR RESPONSIBILITIES AS A GOVERNMENT ATTORNEY FOR TWO YEARS • WHEN IN DOUBT, GET INFORMED CONSENT IN WRITING, AND WHERE POSSIBLE, WAIVERS IN WRITING

SERVING THE TRIBAL CLIENT’S INTERESTS