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Ethical Issues Arising from the Attorney General’s Office Representation of the State

1. Ethical Issues Arising from the Attorney General’s Office Representation of the State. ALBERT J. LAMA Chief Deputy Attorney General Office of New Mexico Attorney General GARY K. KING. 2. GENERAL ETHICAL RULES REGARDING CONFLICT OF INTEREST THAT ALL ATTORNEYS SHOULD BE AWARE OF:.

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Ethical Issues Arising from the Attorney General’s Office Representation of the State

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  2. Ethical Issues Arising from the Attorney General’s Office Representation of the State • ALBERT J. LAMA • Chief Deputy Attorney General • Office of New Mexico • Attorney General • GARY K. KING 2

  3. GENERAL ETHICAL RULES REGARDING CONFLICT OF INTEREST THAT ALL ATTORNEYS SHOULD BE AWARE OF: • Individuals who have conflicts of interest • Organizations that have conflicts of • interest 3

  4. INDIVIDUALABA Model Rule 1.7-Conflict of Interest: Current Clients • A lawyer shall not represent a client if the representation • involves a concurrent conflict of interest. A concurrent • conflict of interest exists if: • The representation of one client will be directly adverse to another client; or • There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a form client or a third person or by a personal interest of the lawyer. 4

  5. ABA Model Rule 1.11-Special Conflicts of Interest for Former and Current Government lawyers • Except as law may otherwise expressly permit, a • lawyer currently serving as a public officer or • Employee: 1.Is subject to Rules 1.7 and 1.9: and 2.Shall not: (i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing. 5

  6. ABA MODEL RULE 1.13 Organization As Client • A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents • If a lawyer for an organization knows that an officer, employee or other person association 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….. 6

  7. ABA Model Rule 1.13-Organization as Client(Continued) • Unless a lawyer reasonably believes that is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to a higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law 7

  8. Role of the Attorney GeneralCivil • A threshold question involving any • litigation involving the Attorney General’s • Office is: who is the client? 8

  9. Attorneys General have been given independent enforcement duties to advance and protect “the public interest” 9

  10. The exclusive province of the stateAttorney General • …….is the “right to represent the state as to • litigation involving a subject matter of statewide • interest” • Mountain States Legal Found v. Costle, 630 F.2d • 754, 771 (10th Cir. 1980) 10

  11. Therefore, the issue of who is the client can be problematic • Can different agencies of state government be the • same client for purposes of ABA Model Rule1.7? • ABA Formal Op. 97-405, the identity of client may be determined by agreement between lawyer and state agency, so long as determination does not “defeat the reasonable expectation of [the lawyer’s] other clients…. 11

  12. Representing State Agencies v. Representing the Interest of the StateInherent in the attorney general’s duty to “prosecute” is the power to initiate civil lawsuits when, his judgment, the interest of the state is in need of protection.State ex rel. Bingaman v. Valley Sav. & Loan Ass’n, 97 N.M. 8, 636 P.2d 279 (1981) 12

  13. According to the ABA Model Rules of Professional Conduct: • [T]he responsibilities of government lawyers may • include authority concerning legal matters that • ordinarily reposes in the client in private client- • lawyer relationships…Such authority in various • respects is generally vested in the attorney general • and the state’s attorney in state government 13

  14. According to the ABA Model Rules of Professional Conduct:(Cont.) • Lawyers under the supervision of these officers • may be authorized to represent several • government agencies in intragovernmental legal • controversies in circumstances where a private • lawyer could not represent multiple private • clients. These Rules do not abrogate any such • authority. 14

  15. New Mexico Supreme Court has ruled on the question of representation of a state agency client vs. the interest of the state.Mountain States Tel. & Tel. Co. v. Corporation Comm’n, 99 N.M. 1, 653 P.2d 501 (1982) 15

  16. Client v. ClientConflicts • Attorney General v. PSC, 625 N.W. 2d 16 (Mich. App. 2000) • The Attorney General challenged the order of Public • Service Commission granting Detroit Edison Power • Company’s motion to terminate proceedings regarding • their request for a suspension of its power supply cost • recovery clause. The Attorney General was both the • appellant in the proceeding and acted as counsel for the commission 16

  17. Client v. Client(Cont.) • The court ruled that the rules of professional • responsibility generally recognized a clear conflict • of interest when an attorney general acted as a • party litigant in opposition to an agency or • department that he/she also represented in the • same cause of action…. 17

  18. Commwealth v. Pa, Pub. Util. Comm’n, 394 A.2d 683 (Pa. Commw. 1978) • Is there a conflict of interest if the Attorney General represents a state agency and also is required to enforce an administrative order against that agency client, when it arises from the same circumstances? 18

  19. Commwealth v. Pa, Pub. Util. Comm’n, 394 A.2d 683 (Pa. Commw. 1978)(Cont.) • There is no irreconcilable conflict of interest • under the stated facts….The AG is fulfilling • his statutorily mandated duty to represent • the Commonwealth, or a department • thereof. There are situations which simply • require the AG to wear two hats. 19

  20. State Water Res. Control Bd. v. Superior Court, 97 Cal. App. 4th 907 (2002) • AG was appropriately disqualified from representing the state water board and state department of game and fish simultaneously because such representation was prohibited by statute. 20

  21. Safeguards and Best Practices to avoid Recusal or Disqualification • Be aware of who the office does and does not represent • Develop an office conflict policy • Obtain informed consent, confirmed in writing, from each client. See Model Rule 1.7 • Hire outside counsel • Screening: “isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.” (Definitions: Model Rules of Professional Conduct 1.0) 21

  22. Role of the Attorney General-CriminalPeople v. Waterstone, 2010 Mich. App. LEXIS 428 • There arises a dilemma when a client is also criminally investigated or prosecuted by the Attorney General’s Office. • Does a conflict of interest exist under the rules of professional responsibility specifically when the prosecutor has become privy to confidential information? • The AG should be disqualified under facts of a case where the AAG has learned confidential information from the Defendant in the course of representing him or her in a case 22

  23. AVOIDING CONFLICTS: Lessons from Waterstone • “Cases regarding prosecutor disqualification examine whether the prosecutor learned confidential information that he or she ethically may not use against the defendant and whether knowledge of that information may be imputed to other members of the prosecutor’s office.” 23

  24. AVOIDING CONFLICTS: Lessons from Waterstone(Cont.) “Defendant’s affidavit indicates that she shared confidential information with [the AGs Office] and told [it] the basis for the rulings she made during the … trial. “Courts recognize that a presumption arises that, during representation, a client discloses potentially damaging confidences to his or her attorney.” 24

  25. ADMINISTRATIVE CIVIL CRIMINAL GENERAL AREAS FOR CONSIDERATION: PARALLEL PROCEEDINGS POLICY 25

  26. Discovery/Notice • A criminal division does not direct a civil division’s investigative activities or vice versa. • The state may not deliberately mislead a person as to the possibility of a criminal or civil action. • The state must give notice that it is free to pursue civil, administrative or criminal actions 26

  27. SAMPLE NOTICE: • “The State is free to choose civil, administrative or criminal actions and the decision to take one type of action does not preclude pursuing any other type of action. However, it is the policy of the attorney general that no employee shall confirm or deny that a criminal investigation is being conducted into a particular matter.” 27

  28. Exchange of InformationCivil to Criminal • The civil action must be brought, in good faith, in pursuit of that civil action and may not be brought for the sole purpose of gathering information for the criminal action • It is appropriate for the civil division to alert the criminal division of any information obtained as a result of a legitimate civil purpose 28

  29. Exchange of InformationCriminal to Civil • It is appropriate for the criminal division to alert the civil division of any information obtained as a result of a legitimate criminal purpose (subject to grand jury confidentiality, below) • Grand Jury Materials: Pursuant to NMSA 1978, Section 21-6-6 grand jury information is secret and may not be shared beyond the members of the prosecuting attorney’s staff. 29

  30. Exchange of InformationCriminal to Civil Continued • Attempt to obtain as much information as possible independent of the grand jury process; and • compartmentalize and segregate the evidence obtained by grand jury. 30

  31. Assess the need in your respective AGO Office for an internal policy that maintains appropriate walls between civil and criminal divisions in instances where a parallel proceeding may be contemplated or is ongoing 31

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