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All in the Municipal Family

All in the Municipal Family. Concurrent Conflicts, Model Rule 1.7, and the Government Lawyer. All in the Municipal Family. Don’t you worry ‘bout a thing, mama. Everybody’s got a thing But some don’t know how to handle it. The “New Jersey Rule”.

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All in the Municipal Family

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  1. All in the Municipal Family Concurrent Conflicts, Model Rule 1.7, and the Government Lawyer

  2. All in the Municipal Family Don’t you worry ‘bout a thing, mama

  3. Everybody’s got a thing But some don’t 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)

  6. 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

  7. 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

  8. 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:

  9. 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 lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.

  10. 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)

  11. 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

  12. 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 …

  13. 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)

  14. 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

  15. Rule 1.13 • A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

  16. Conflicts among Agencies

  17. “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

  18. 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)

  19. 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)

  20. Similarities to AGs • “… we cannot mechanically apply the Code of Professional Responsibility to the AG’s office….” • State v. Klattendorf, 801 P.2d 548, 550 (Haw. 1990) • AG’s 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)

  21. 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)

  22. 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 public’s interest • AG had statutory obligation to represent PSC • Rule 1.7 necessitated that AG provide PSC with independent counsel

  23. 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)] • One’s own office

  24. Conflicts among Agencies and Constituents in the Same Action

  25. No per se rule? • “[T]he 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… [T]he 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)

  26. 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)

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

  28. Conflicts among Agencies and Constituents in Different Actions

  29. 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)

  30. 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)

  31. 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

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