PUBLIC
SECRETS AND PUBLIC INTEREST:
GOVERNMENT
LAWYERS, CONFIDENCES AND CONFLICTS
By Cathleen
Cavell
The practice circumstances
of government lawyers differ in fundamental ways from those of the private
sector lawyer whose practice forms the model from and for which attorney ethical
rules were devised. The category "government lawyer" includes a
broad range of work: agency, municipal, legislative counsel; prosecutors;
public defenders; adjudicators; and more.
The Massachusetts
Rules of Professional Conduct, which now set out the ethical rules governing
lawyers in the Commonwealth, are more mindful of the circumstances of government
lawyers than the former Code of Professional Responsibility. The preliminary
Scope section of the Rules devotes paragraph 4 to a general discussion of
the differences in ethical responsibilities that government lawyers may encounter.
Paragraph 4 emphasizes the altered lawyer–client relationship encountered
in government practice.
Unlike private
practice lawyers, the first question for many government lawyers is "Who
is my client?" Since most of a lawyer’s ethical responsibilities derive
from the duty of loyalty to the client, the identity of the client is primary.
The task of identifying
the government lawyer’s client is not straightforward. Is it the lawyer’s
supervisor? The division head? The agency itself? The public interest? Without
conclusively identifying the client, the government lawyer cannot conform
his or her conduct to the preservation of client confidences required by Mass.
R. Prof. C. 1.6 or the examination of possible conflicting representations
required by Mass. R. Prof. C. 1.7.
Mass. R. Prof.
C. 1.13, Organization as Client, addresses some of these issues without resolving
them. Comment 6, entitled Government Agency, recognizes that defining the
client may be tricky for a government lawyer. But the rule also requires a
lawyer to clarify the identity of the client in dealing with the organization’s
"constituents" when the organization’s interests are adverse to
those of the constituents. Rule 1.13 (d) and Comment 7.
Maybe one solution
for the government lawyer is to be very clear about who is not the
client. Members of the public often misconstrue the role of government lawyers
and assume that you represent them. It is probably safe to assume that your
role needs explaining. Thus, spelling out that you do not represent, for example,
everyone who has dealings with your agency, may dispel such misconceptions.
This practice, accompanied by the question "Are you represented by counsel?"
will help comply with the requirement of Mass. R. Prof. C. 4.3 (a) that a
lawyer who has reason to know that an unrepresented person misunderstands
the lawyer’s role should try to correct the misconception.
Because government
lawyers usually represent multiple clients, they often face actual or potential
conflicts of interest between current or prospective clients. Comment 8A to
the conflict of interest general rule, Mass. R. Prof. C. 1.7, makes explicit
the different weight of conflicts in the government context. Noting that the
government lawyer’s situation is "special," the comment affirms:
"public policy considerations may permit representation of conflicting
interests in some circumstances where representation would be forbidden to
a private lawyer." Such public policy considerations have always informed
the analysis of conflicts in this area.
Concerns for protecting
confidentiality are at the root of most conflicts analysis. Clearly, as in
the case of a private attorney, where a client has reposed confidences in
a government lawyer, that lawyer cannot subsequently represent another in
opposition to the first client. When two public agencies or officials whom
the government lawyer has represented enter into a dispute with one another,
assuming that client confidences are not an issue, the conflict rules have
always been applied in a less rigorous fashion. Although confidentiality may
be important in representing government officials in their individual capacity,
disputes between agencies are unlikely to turn on factual issues but rather
on interpretations of the law. Hence, representation of two opposing agencies
normally does not present the same kind of problem.
However, if the
conflict falls within Rule 1.7 (b) because the representation "may be
materially limited by the lawyer’s responsibilities to another client,"
a strategy often employed in Massachusetts agency disputes is the appointment
of a special assistant attorney general or special municipal counsel from
outside the agency.
When a government
lawyer anticipates representing not only the agency but an employee or officer
of the agency in the same matter, the lawyer must identify conflicts and potential
conflicts at the outset. Employees may assume you are their attorney as soon
as a matter arises. You must explain to the individual client that the employee’s
confidences may be subject to disclosure to the employer.
Several important
issues arise at the initial meeting with the employee: courts have deemed
the first interview with the employee to be an initial consultation with counsel,
finding that an attorney-client relationship is created. Even if this is not
assumed automatically, the employee’s reasonable belief that the government
lawyer represented the employee may be sufficient for the relationship to
attach. If the government lawyer states that he or she represents the employer
only and needs to assess the situation, this may suffice to defeat the formation
of an attorney-client relationship.
The lawyer’s fitness
to protect the interests of the agency employee and the agency itself is problematic
where one client’s defense may implicate the other: for example, the employer
asserts that employee was acting outside the scope of employment; or the employee
claims immunity for actions performed in good faith in the execution of an
unconstitutional official policy.
To protect against
later conflict problems, the attorney must
- disclose the potential
for conflict to the employee and to the agency at the outset, anticipating
as many scenarios as possible,
- give both clients the opportunity
to consult independent counsel, and
- ascertain that each waives
potential claims against the other.
The consent and
waiver should be in writing. Even so, if conflicts arise later, the lawyer
must withdraw, usually from both representations.
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Cathleen Cavell is
an assistant bar counsel with the Massachusetts Board of Bar Overseers. An
expanded version of this article will appear as a chapter in MCLE’s 1999 edition
of Ethical Lawyering in Massachusetts.
