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Commonwealth of Massachusetts


September 1999

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.



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