All in the Municipal Family

1
All in the Municipal Family

• Concurrent Conflicts,
• Model Rule 1.7, and the
• Government Lawyer

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All in the Municipal Family

• Dont you worry bout a thing, mama

3
Everybodys got a thing But some dont know how
to handle it
4
The New Jersey Rule

• In order to avoid the appearance of impropriety,
  a lawyer or law firm may not contemporaneously
  represent two public agencies, boards, or courts
  within the same public entity.
• In re Supreme Court Advisory Committee on
  Professional Ethics Opinion No. 697, 911 A.2d 51,
  53 (N.J. 2006)

5
The New Jersey Rule

• In order to avoid the appearance of impropriety,
  a lawyer or law firm may not contemporaneously
  represent two public agencies, boards, or courts
  within the same public entity.
• In re Supreme Court Advisory Committee on
  Professional Ethics Opinion No. 697, 911 A.2d 51,
  53 (N.J. 2006)

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Appearance of Impropriety

• 1969 ABA Model Code of Professional Conduct
• Canon 9 A Lawyer Should Avoid Even the
  Appearance of Impropriety
• DR 9-101
• 1983 ABA Model Rules of Professional
  Responsibility did not carry concept forward

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Model Rules

• Contains rule governing concurrent representation
  
• Model Rule 1.7
• Makes rule expressly applicable to government
  lawyers
• Model Rule 1.11(d)
• Prompts reconsideration of municipal family
  doctrine

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Model Rule 1.7

• (a) Except as provided in paragraph (b), a lawyer
  shall not represent a client if the
  representation involves a concurrent conflict of
  interest. A concurrent conflict of interest
  exists if

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Model Rule 1.7 (cont.)

• (1) the representation of one client will
  directly adverse to another client or
• (2) there is a significant risk that the
  representation of one or more clients will be
  materially limited by the lawyers
  responsibilities to another client, a former
  client or a third person, or by a personal
  interest of the lawyer.

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Model Rule 1.7 - Conditions

• (b) Notwithstanding the existence of a concurrent
  conflict of interest under paragraph (a), a
  lawyer may represent a client if
• (1) the lawyer reasonably believes that the
  lawyer will be able to provide competent and
  diligent representation to each affected client
  
• Rule 1.1 (competence) and Rule 1.3 (diligence)

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Model Rule 1.7 - Conditions

• (b) Notwithstanding the existence of a concurrent
  conflict of interest under paragraph (a), a
  lawyer may represent a client if
• (2) the representation is not prohibited by
  law
• In some jurisdictions, governments may not
  consent to a conflict
• AR, NJ, WV, WY

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Model Rule 1.7 - Conditions

• (b) Notwithstanding the existence of a concurrent
  conflict of interest under paragraph (a), a
  lawyer may represent a client if
• (3) the representation does not involve the
  assertion of a claim by one client against
  another client represented by the lawyer in the
  same litigation or other proceeding before a
  tribunal and

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Model Rule 1.7 - Conditions

• (b) Notwithstanding the existence of a concurrent
  conflict of interest under paragraph (a), a
  lawyer may represent a client if
• (4) each affected client gives informed consent
  confirmed in writing.
• Comments 18, 19, 20
• Rule 1.0(e) (informed consent)

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Identifying conflicts

• Conflicts among different government agency
  clients
• Conflicts among government agencies and
  constituents in the same action
• e.g., 1983
• Conflicts among government agencies and
  constituents in different actions

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Rule 1.13

• A lawyer employed or retained by an organization
  represents the organization acting through its
  duly authorized constituents.

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Conflicts among Agencies
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Clients

• Rule 1.7 is cast in terms of responsibility to
  client
• a lawyer shall not represent a client if the
  representation involves a concurrent conflict of
  interest.
• Follows from Rule 1.13 that a government lawyer
  can have multiple clients within the government

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Clients

• The practical reality is that every employee,
  appointee or elected official in state government
  who may be advised by the AG, or receive some
  legal service from the AG, is a potential client
  of the AG.
• State v. Klattendorf, 801 P.2d 548, 551 (Haw.
  1990)

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Analogy to AGs

• Cases analogize city and county attorneys to
  state attorneys general
• County of Kauai v. Baptiste, ___ P.3d ___ (Haw.
  2007) (concurrent representation by county
  attorney)
• Sammamish Community Municipal Corporation v. City
  of Belleview, 27 P.3d 684 (Wash. Ct. App. 2001)
  (concurrent representation by city attorney)

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Similarities to AGs

• we cannot mechanically apply the Code of
  Professional Responsibility to the AGs office.
• State v. Klattendorf, 801 P.2d 548, 550 (Haw.
  1990)
• AGs status requires accommodation, not
  exemption, under the rules of professional
  conduct
• Attorney General v. Michigan P.S.C., 625 N.W.2d
  16, 28 (Mich. Ct. App. 2000)

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Common representation allowed

• It is accepted practice for different attorneys
  within the same public office to represent
  different clients with conflicting or potentially
  conflicting interests so long as an effective
  screening mechanism exists within the office
  sufficient to keep the clients interests
  separate.
• Sammamish Community Munc. Corp. v. City of
  Belleview, 27 P.3d 684, 688 (Wash. Ct. App. 2001)

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Common representation not allowed

• Attorney General v. Michigan Public Service
  Commission, 625 N.W.2d 16 (Mich. Ct. App. 2000)
• AG was party plaintiff obliged to represent the
  publics interest
• AG had statutory obligation to represent PSC
• Rule 1.7 necessitated that AG provide PSC with
  independent counsel

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Michigan P.S.C.

• Risk that representation would be limited by
  personal interest of the lawyer Rule 1.7(a)(2)
• I.e., interest of attorney general qua attorney
  general
• Representation involved assertion of claim by one
  client against another client represented by AG
  in same litigation Rule 1.7(b)(3)
• Ones own office

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Conflicts among Agencies and Constituents in the
Same Action
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No per se rule?

• The appropriate rule for dealing with
  potential conflict of interests in the context of
  a section 1983 action must be grounded upon
  common sense, experience, and realism The
  joint representation of clients with potentially
  differing interests is permissible provided there
  is a substantial identity of interests between
  them . The elements of mutuality must
  preponderate over the elements of
  incompatibility.
• Petition for Review of Opinion 552, 507 A.2d 233,
  238 (N.J. 1986)

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Per se rule?

• Because all attorneys in the law department
  represent the city, none of them are free also to
  represent an individual employee
• Barkley v. City of Detroit, 514 N.W.2d 242 (Mich.
  Ct. App. 1994)

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Administrative context

• City attorneys cannot represent city employee
  facing discharge before a personnel board also
  advised by the city attorneys office
• Quintero v. City of Santa Ana, 114 Cal. App.4th
  810 (Cal. Ct. App. 2003)

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Conflicts among Agencies and Constituents in
Different Actions
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Interagency conflicts in separate actions

• Interagency conflicts, whether in the same or
  different actions, require that the rules of
  professional conduct be adapted to the
  circumstances
• See State v. Klattendorf, 801 P.2d 548 (Haw.
  1990) (involving representation of same
  constituent in separate actions)

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Agency and constituent

• No conflict when lawyers representing sheriff in
  his official capacity in overtime dispute with
  deputies sued sheriff in his individual capacity
  on theory that he, not county, was deputies
  employer
• Madison County v. Hopkins, 857 So.2d 43 (Miss.
  2003)

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Conclusion

• ABA rejected NAAG proposal that Rule 1.7 not
  apply to lawyers in government service
• Courts and ethics bodies left to adapt the rule
  to the government lawyer
• Given the range of potential conflicts, no
  consensus emerges on how to adapt the rule