everyday ethical dilemmas faced by government attorneys ...everyday ethical dilemmas faced by...
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Everyday Ethical Dilemmas Faced by Government Attorneys
(and those that want to be)
Leslie A.T. Haley, Park Haley LLP
November 2016
I. How are government lawyers different? R3d § 97 cmt. b
A. Goals of the Government
1. Corporations and other private entities usually have well-defined
objectives (e.g. maximizing profit for the benefit of the shareholders
2. Government’s purposes cannot be captured in a simple formula. Goal is
broad and vague: pursue the public interest
B. Structure of Authority
1. Corporations and other private entities usually have well-defined
hierarchical structure and relatively clear lines of authority, culminating in
the CEO and ultimately the board of directors.
2. Government is much more diffuse and structured to achieve separation of
powers, checks and balances.
3. Government lawyer may possess more discretion in some situations than
lawyers representing private organizations.
C. Applicable Law
1. Governmental officials and government lawyers subject to legal
constraints not applicable to lawyers in private sector
a. Congress has passed more than 100 statutes giving particular
agencies separate litigating authority.
b. EX: 18 U.S.C. § 205 (prohibiting government employees from
representing parties in actions against the United States or District
of Columbia); 18 U.S.C. § 207 (placing restrictions on successive
government and private employment); 18 U.S.C. § 208 (financial
conflict of interest statute).
2. Government lawyer may enjoy some legal rights not available to private
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sector lawyers, e.g. protections against political retaliation
3. Confidentiality
a. On the one hand, reduced confidentiality in government generally
because so much government information is available to the public
(open meetings laws, FOIA, etc.)
b. On the other hand, for some government information there is a
heightened duty of confidentiality, e.g., national security issues;
information collected from private individuals; trade secrets
II. Government Lawyer’s Enabling Authority
A. “A first step in the analysis of the duties and obligations of a government lawyer
is a determination of the specific statutory framework that authorizes the
government lawyer to act.” NYC Op. 2004-03.
1. Litigation: litigating authority is typically given to a specific law
department
a. Federal: Department of Justice under the direction of the U.S.
Attorney General largely has a monopoly on federal litigation
(though some independent agencies have statutory authority to
litigate separately)
b. State: state attorney general
c. County: county attorney
d. City: corporation counsel
2. Agency work: government agencies are often authorized to hire and fire
their own (non-litigating) lawyers
B. “The work of most government law departments is carried out by assistants to the
statutorily-designated attorney, operating by delegation of authority in a
hierarchical structure.”
III. Who is the “Client” of the Government Lawyer?
This is a common problem when representing agencies that are within a parent
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organization, ie: the county or city. It can be very difficult to draw the line between the
organization, who is your client, and the constituents of that organization, for whom you provide
legal counsel and assistance as well.
Several models of agency representation exist. The agency may be represented by:
- The attorney general’s office,
- The commonwealth attorney’s office,
- The county attorney’s office,
- In-house counsel, or
- Private, independent contract attorneys.
In Virginia the agency is the client; not the social worker, not the public and not the child’s best
interest. Rule 1.13 deals with attorney’s representing organizations.
RULE 1.13 Organization as Client
(a) A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
(d) In dealing with an organization's directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the client when it is
apparent that the organization's interests are adverse to those of the constituents with whom the
lawyer is dealing.
Since the attorney represents the agency he must be very clear when dealing with the different
constituents of the agency that he represents the agency as a whole and not the individual
members/employees that work for the agency. As Rule 1.13 tells us, the agency acts through its
constituents, but early on the attorney must establish who he takes direction from on any given
case.
If the agency’s interests and the individual social worker’s interests diverge the lawyer has
additional duties. The lawyer’s ethical duty is to proceed in the best interest of the organization.
The lawyer should remind the social worker that they represent the agency and that the social
worker may need to seek independent counsel. Rule 1.13, Cmt. [10] states that:
[10] When the organization's interest may be or become adverse to those of one or more
of its constituents, the lawyer should advise any constituent, whose interest the lawyer finds
adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer
cannot represent such constituent, and that such person may wish to obtain independent
representation. Care must be taken to assure that the individual understands that, when there is
such adversity of interest, the lawyer for the organization cannot provide legal representation for
that constituent individual, and that discussions between the lawyer for the organization and the
individual may not be privileged.
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Suppose the agency lawyer is preparing for the upcoming permanency hearing in a case where
the social worker and the lawyer disagree on the disposition of the case. If they cannot resolve
their disagreement, the lawyer can consult the social worker’s supervisor and explain the reasons
for their position. If the supervisor and lawyer can reach agreement then the lawyer can proceed,
if not, the lawyer can go up the chain of command if the lawyer has concerns that the
supervisor’s position may not be in the best interests of the agency or violates the law.
Additionally, despite the fact that the lawyer represents the agency and not the individual social
worker, communications generally are protected by Rule 1.6, so communications the lawyer has
with the social worker and supervisor are protected which is helpful in the event that there is a
disagreement about how the case should be handled.
A. There is no “universal definition of the client of a government lawyer.” R3d § 97
cmt. c.
1. Possibilities:
a. Public interest or just the public
(1) Generally thought to be too amorphous and vague
(2) Lawyers who try to determine the public interest for
themselves are often thought to be subverting established
government processes for determining “the public interest”
out of contesting interests
(3) Even if “public interest” is defined as a statute or a court
interpretation of a statute, these can often be interpreted in
a variety of ways, and these interpretations may not be
static but in constant state of revision.
(4) On the other hand, some cases endorse the idea in the
abstract
b. The government as a whole
(1) See Hawaii Rule 1.13 cmt. [7]: “Although in some
circumstances the client may be a specific agency, it is
generally the government as a whole. For example, if the
action or failure to act involves the head of a bureau, either
the department of which the bureau is a part or the
government as a whole may be the client for purposes of
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this rule. Moreover, in a matter involving the conduct of
government officials, a government lawyer may have
authority to question such conduct more extensively than
that of a lawyer for a private organization in similar
circumstances.”
(2) Concern here is that lawyer who acts against the wishes of
his agency head (perhaps because he believes those actions
are contrary to legislative act or judicial opinion)
insufficiently upholds notions of separation of powers and
checks and balances.
c. The branch of government in which the lawyer is employed,
perhaps as represented by the highest authority in that branch
(1) But for executive agency lawyers, Governor or President
does not hire, fire, or supervise day-to-day activities of
these lawyers.
(2) Ignores the role of agency heads, appointed to carry out the
wishes of the chief executive.
d. The agency or department in which the lawyer works
(1) “Everyday” answer for most government lawyers
(2) Under 1.13(a), the “agency” acts through its “duly
authorized constituents.”
(3) Thus, for example, if agency head changes, the lawyer must
follow the directions of the new head, even if they differ
from previous directions of former head.
e. Responsible officers who make decisions for the agency: generally
not the case under MR 1.13(a)
2. Who the client is may change depending on the circumstances and the
purpose for asking the question. Thus, advance or overall answer to the
question may not be possible. Factors to consider:
a. Terms of retention
b. Hiring authority
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c. Scope and nature of lawyer’s services, e.g. whether litigation is
involved
d. Regulatory arrangements relevant to lawyer’s work
e. History and tradition’s of office in which lawyer works
f. Legal character of proposed government action/inaction
g. Constitutional or statutory authority of agency to make decision
without executive direction or review
3. Nevertheless, “for many purposes, the preferable approach on the question
[of who is the client] . . . is to regard the respective agencies as the clients
and to regard the lawyers working for the agencies as subject to the
direction of those officers authorized to act in the matter involved in the
representation.” R3d § 97 cmt. c.
a. Humphrey v. McLaren, 402 N.W.2d 535 (Minn. 1987): agency
(and in some cases the entire government) is the client, not the
individual head of the agency; state AG not disqualified under
former client conflict of interest rules from suing former director of
Public Employees Retirement Fund to recover money allegedly
improperly paid to former director.
b. Federal Bar Ass’n Op. 93-1: under normal circumstances,
government lawyer’s client is agency employing the lawyer.
Exceptions:
(1) Lawyer represents an employee of the government charged
with misconduct (e.g. court martial or personnel hearing)
(2) Responsible agency heads are involved in corrupt or clearly
illegal conduct; lawyer’s client then, by statute and
regulation, becomes the branch of government
4. Question of law, not ethics
B. Issues Relevant to the Who Is the Client Debate
1. Structure of governmental hierarchy and scope of discretion:
a. Who is the client becomes important when there is a conflict about
how to proceed between the agency head and the lawyer, the
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governor or president, the legislative branch, and/or the judiciary.
b. Many of these conflicts can be resolved by looking to the degree of
discretion reserved to agency heads and the hierarchical structure
of the relevant government.
2. Bounds of the law:
a. Key question here is how government lawyer is supposed to
determine the bounds of the law, i.e. where does legitimate
exercise of policy discretion end and violation of law begin, and in
making this judgment, can lawyer act as an “advocate” and follow
any directive for which some colorable legal argument can be
made, or must the lawyer act as a “counselor,” and make his best
judgment of what the law “is.”
b. Once the bounds of the law are exceeded, then lawyer generally
has broader obligations (see below).
3. Consequences of not following ethics rules or law:
a. Discipline
(1) Like lawyers in the private sector, government lawyers face
little practical risk of discipline from state disciplinary
authorities for getting these questions “wrong.”
(2) Some agencies have adopted the ABA’s ethics rules as
internal agency ethics rules. How often are these enforced?
b. Civil liability: Unlike private sector lawyers, government lawyers
may face lower risk of civil liability, such as malpractice and
breach of fiduciary duty, and fraud (aside from stealing money
from one’s agency or the like).
c. Criminal liability: like private sector lawyers, government lawyers
face potential criminal liability but again, this is relatively rare.
Hypothetial 1:
As full time DSS counsel I’m really caught when one of the social workers tries to direct my
“opinion” about the handling of a case when I know that her desired result goes against the
“policy” of DSS in these type cases.
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I think:
a. I can’t do that because DSS is my client;
b. I need to listen to the social worker because each case is different and they know it best;
c. DSS is wrong to have a “policy” that applies to all cases;
d. I really haven’t done my job in advising DSS about my role and the law;
e. I should use my own judgment as to what should be done (after all, I’m the lawyer).
Hypothetical 2:
So, what I’ve learned is:
a. I need to be “educating” my client about the law;
b. I need to understand my role and client;
c. I need to be educating social workers and the agency about my role;
d. I need to be following the law;
e. I need to be prepared for all my cases in advance;
f. All of the above.
Analysis:
An often overlooked rule is 2.1 dealing with a lawyer’s duty to advise their client. The rule
explicitly encourages lawyers to provide advice to clients that goes beyond purely legal advice.
It encourages lawyers to advise on moral, social, economic, or other factors relating to the
client’s situation. The comments to Rule 2.1 make clear that a client is entitled to
straightforward advice expressing the lawyer’s honest assessment, and that legal advice often
involves unpleasant facts and alternatives that a client may not want to confront.
Remember, the social worker is not the client. DSS counsel needs to advise and counsel with his
client (the constituent within the organization who has the highest authority in the matter) and
discuss all aspects of his concerns with this case.
Competence:
A larger problem may be that the lawyer can’t get a handle on his caseload. He is concerned
because he feels unprepared and not competently representing the interests of his client. The
underlying question becomes the issue of whether or not this is a matter of case overload or
simply inexperience. Reasonable diligence and promptness means that the lawyer needs to be
mindful of their caseload in managing their time. If the lawyer is simply overwhelmed because
his case load is overly burdensome then he needs to take this concern to his employer/agency.
The Ethics Committee has recently opined that the ethics rules, including competency and
diligence, apply uniformly to Commonwealth Attorneys acting unethically by taking cases they
do not have time to handle properly. There is no safe harbor under Rule 5.1 (Responsibilities of
Partners and Supervisory Attorneys). LEO 1798.
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Rule 1.1 requires that the lawyer provide competent representation to a client. Competence
involves many factors; including, the relative complexity and specialized nature of the matter,
the lawyer’s general experience, the lawyer’s training and experience in the field in question, the
preparation and study the lawyer is able to give the matter and whether it is feasible to refer the
matter to, or associate or consult with, a lawyer of established competence in the field in
question. Rule 1.1 Comment [1].
If it’s because of inexperience then the lawyer needs to find a fellow attorney who is willing to
provide him some assistance, guidance and mentoring with his cases. All of us have experienced
moments of feeling inadequately prepared due to inexperience in a matter. Mentoring is
becoming lost in the profession but is an important part of assisting young or inexperienced
attorneys in new areas of the law.
Competence also requires understanding your role and responsibilities as to your client. When a
lawyer represents an agency or organization this is sometimes much more difficult to do. Once
you establish who the client is then the role and responsibilities flow from there. Remember that
competence then requires protecting the client’s position and confidences, etc. as the lawyer’s
duties run to the client.
Rule 1.3 requires that the lawyer act with reasonable diligence and promptness in representing a
client. Diligence also requires that the lawyer understand all pertinent laws and practice formats
related to their client’s matters. DSS counsel needs to be informed of all pertinent laws, practice
forms, compliance requirements, and protocols that relate to this practice. They need to be
mindful of educating their clients about these areas and keeping them up-to-date on changes as
they occur. A good practice would be to annually hold seminars to educate folks within your
constituent organization about changes in the law and practice that relate to them. Part of the
role of counsel is education and communicating with the client.
Hypothetical 3:
So what happens now when the social worker tells me that sometimes she’s so overwhelmed
with her caseload that she “doctors” her case records to reflect home visits, etc.?
What do I do:
a. nothing;
b. advise her to stop ;
c. tell her supervisor;
d. advise my client.
Analysis:
Protecting Client Confidences:
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Suppose a social worker admits to the agency lawyer that she has altered dates on her case
record. What are the lawyer’s duties to her, to other parties, and to the court?
A lawyer representing the child welfare agency represents the agency, not the individual social
workers or employees. Generally, communications are protected by Rule 1.6 despite the fact
that the lawyer represents the agency, not the individual social worker. For example, if an
organizational client requests its lawyer to investigate allegations of wrongdoing, interviews
made in the course of that investigation between the lawyer and the client’s employees or other
constituents are covered under Rule 1.6. If the actions of the social worker threaten substantial
injury to the child welfare agency, the lawyer could not be compelled to reveal communications
to someone outside the organization.
However, the lawyer must reveal knowledge of the social worker’s wrongdoing to others within
the agency, including supervisors. This is because the lawyer has a duty to proceed as is
reasonably necessary to promote the best interest of the organization. For example, in the case
scenario above, the lawyer may not have to reveal the social worker’s wrongdoing to anyone
outside the agency.
The lawyer however should reveal the wrongdoing to a supervisor or higher authority within the
organization because the lawyer’s primary ethical responsibility is to protect the best interest of
the organization. The lawyer may need to proceed “up the chain of command” within the agency
to resolve concerns.
Duties to the social worker:
Sometimes the child welfare agency’s interest may become adverse to an employee (in this case
the social worker). Suppose the social worker wants to proceed in one direction and that is
antagonistic to the agency’s policy?
The lawyer’s ethical duty is to proceed in the best interest of the organization. When the
agency’s interests and the case worker’s interest diverge additional duties arise with respect to
the worker. Rule 1.13 says that the lawyer should advise the caseworker that the lawyer cannot
represent them and that she might want to obtain independent representation and that any
communication and discussions between the lawyer and the case worker may not be privileged.
Rule 1.13
(b) If a lawyer for an organization knows that an officer, employee or other person
associated 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, or a
violation of law which reasonably might be imputed to the organization, and is likely to result in
substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the
best interest of the organization. In determining how to proceed, the lawyer shall give due
consideration to the seriousness of the violation and its consequences, the scope and nature of the
lawyer's representation, the responsibility in the organization and the apparent motivation of the
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person involved, the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the organization
and the risk of revealing information relating to the representation to persons outside the
organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation
to appropriate authority in the organization;
(3) referring the matter to higher authority in the organization, including, if
warranted by the seriousness of the matter, referral to the highest authority that can act in
behalf of the organization as determined by applicable law.
(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority
that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a
violation of law and is likely to result in substantial injury to the organization, the lawyer may
resign or may decline to represent the client in that matter in accordance with Rule 1.16.
IV. Inter-Agency Conflicts/Conflicts
A. If government lawyer represents two agencies with conflicting interests, lawyer
may be bound by conflict of interest rules.
1. NYC Op. 2004-03 states that representations that would violate the ethics
rules governing conflicts of interest are “to be avoided.”
2. A number of state cases allow state AG to represent two state agencies
with conflicting interests in litigation. See, e.g., People’s Ins. Counsel
Division v. Allstate Ins. Co., 969 A.2d 971 (Md. 2009) (citing cases); State
ex. rel. Allain v. Mississippi Public Service Comm’n, 418 So.2d 779 (Miss.
1982); Environmental Protection Agency v. Pollution Control Bd., 372
N.E.2d 50 (Ill. 1977).
3. However, a conflict of interest may be found if the state AG intervenes as
a party in opposition to a state agency her office represents in litigation.
Granholm v. PSC, 625 N.W.2d 16 (Mich. App. 2000).
B. On the other hand, government lawyers may be authorized to mediate conflicting
positions between agencies
1. ABA Model Rules Scope [18] states that government lawyers “may be
authorized to represent several government agencies in intragovernmental
legal controversies in circumstances where a private lawyer could not
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represent multiple clients.”
2. NYC Op. 2004-03: “where a government lawyer is charged with
protecting the interests of the federal government, the state, or a locality,
nothing in the disciplinary rules restrains the government lawyer from
attempting to mediate a common position between agencies with
conflicting interests.”
3. Cf. In-house corporate counsel who must help company mediate dispute
between two divisions of the company.
Conflicts questions are determined on a case-by-case analysis under the application of Rule 1.7
and 1.9 dealing with current and former clients. Since you only handle cases for DSS on a
contract basis you would therefore only have conflicts as to future matters that involved the same
or substantially related case information from previous DSS matters you handled for the agency.
Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client,
a third person or from the lawyer’s own interests. The key question is whether pursuing one
client’s objectives will prevent the lawyer from pursuing another client’s objectives, and whether
confidentiality may be compromised. Rule 1.7 (a)(1) prohibits representing a client if that
client’s interests are directly adverse to another client, even if the matters are unrelated. Even if
there is no direct adverseness, representation is also prohibited under Rule 1.7 (a)(2) if 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, a third person or by a personal interest
of the lawyer.
Whether or not the lawyer’s representation in one matter may be “materially limited” by his
responsibilities to other clients (or vice versa) depends on the extent to which either client would
be adversely affected by the outcome of the other’s matter, and on whether the lawyer’s
diligence or judgment on behalf of one client would be compromised by his relationship or
identification with the other. This in turn may depend upon the issues at stake in a matter, the
particular role the lawyer is playing, and the intensity and duration of his relationship with the
lawyers he is opposing.
Questions to consider include: does representing one client foreclose alternatives for another?
Will confidential information from Client A be compromised in representing Client B? Can the
lawyer comply with the duties owed to each client, including the duty to pursue each client’s
position? Will the client “reasonably fear that the lawyer will pursue that client’s case less
effectively out of deference to the other client?” Can the lawyer ask for consent?
Conflict of interest analysis can get complicated, not only determining whether there is a
conflict, but what to do if there is. Withdrawal is usually, but not always, mandatory. Most
withdrawals based upon conflict of interest will be mandatory, not permissive withdrawals, but
even after withdrawal the lawyer must still maintain confidences.
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Hypothetical 4:
But what happens now when my client, DSS, is advocating one position for a child, but the
School Division, represented by my colleague down the hall, objects?
What should our office do?
a. continue to represent the DSS and the School Division but create a “chinese wall” for
informational purposes;
b. continue to represent either DSS or the School Division;
c. get independent counsel for both;
d. see if DSS and the School Division will consent to the continued representation of both.
Analysis:
You definitely have a conflict here. Since you work for a specific constituent agency of the
organizational client you are looking for assistance in applying the conflict’s analysis of Rule
1.7.
Remember Rule 1.7 does not allow concurrent representation of clients whose interests are
directly adverse to another or if there is a significant risk that the representation of one client
will be materially limited by the representation of another client. Notwithstanding the existence
of this concurrent conflict a lawyer may represent a client if each affected client consents after
consultation and the lawyer believes they will be able to provide competent and diligent
representation. This consent, under Rule 1.7(b), needs to be memorialized in writing.
In LEO 1836, the Ethics Committee recently opined that a City Attorney has multiple constituent
groups they provide representation to. The City Attorney may render legal opinions or
conclusions with which a constituent might strongly disagree or perceive as favoring another
constituent, but since the City Attorney’s role is lawyer for the entire organization that would not
be a conflict of interest.
Moreover, an attorney serving in his role as an advisor may be ethically driven to candidly tell
his client things the client does not want to hear. There is additional discussion in this LEO
regarding “screening” attorneys who represent designated constituents from other attorneys and
their constituent representation, only with the consent of authorized constituent members who
can make these decisions on behalf of the entire organization. LEO 1836.
Ultimately, under 1.2 and 1.13 the agency determines the position. However, representing
multiple constituents within the same organization with divergent interests may create an
irreconcilable conflict of interest.
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The decisions of constituents of the organization ordinarily must be accepted by the lawyer even
if their utility or prudence is doubtful. Decisions concerning policy and operations, including
ones entailing serious risk, are not as such in the lawyer's province. However, different
considerations arise when the lawyer knows that the organization may be substantially injured by
action of a constituent that is in violation of law. In such a circumstance, it may be reasonably
necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the
matter is of sufficient seriousness and importance to the organization, it may be reasonably
necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the
organization. Substantial justification should exist for seeking review over the head of the
constituent normally responsible for it. The stated policy of the organization may define
circumstances and prescribe channels for such review, and a lawyer should encourage the
formulation of such a policy. Even in the absence of organization policy, however, the lawyer
may have an obligation to refer a matter to higher authority, depending on the seriousness of the
matter and whether the constituent in question has apparent motives to act at variance with the
organization's interest. Review by the chief executive officer or by the board of directors may be
required when the matter is of importance commensurate with their authority. At some point it
may be useful or essential to obtain an independent legal opinion. Rule 1.13 Comment [3].
V. “Official Capacity” Parties as Client Agency Constituents
A. Nature of lawsuits naming agency official in his or her “official capacity”
1. Although these suits are in form against a named officer, they are in reality
a suit against the government agency or office
2. Example: actions against officers to compel performance of official duties
(mandamus actions, habeas corpus, agency proceedings); to obtain judicial
review of orders; to prevent officers from acting in excess of authority
3. Not included: actions seeking to secure money judgments against named
officers, enforceable against their personal assets
B. Representational Role of the Government Lawyer
1. Generally government lawyer in these suits represents the agency alone
and not the official personally, unless circumstances suggest otherwise.
R3d § 97 cmt. c.
2. Manchin v. Browning, 296 S.E.2d 909 (W.Va. 1982): state AG is
obligated to provide Secretary of State with legal representation in his
official capacity in litigation challenging Secretary’s actions, despite the
fact that AG agrees with plaintiff in that litigation.
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VI. Representation of Agency Constituents
A. Government lawyers may be authorized to represent government employees in
their personal capacity
1. Federal government: 28 C.F.R. § 50.15(a)
B. Government lawyer appointed to represent government employee in his or her
personal capacity has a full-fledged lawyer-client relationship with that employee
and owes full ethical duties to that employee.
C. Conflict of interest rules may prevent joint representation of employee and agency
1. NYC Op. 2004-3:
a. Conflicts of interest must be explored at the outset of the
relationship. “During this process the government lawyer and the
government employee must both have a clear understanding of
whether preliminary discussions are privileged and who controls
the privilege, the agency or the employee. . . . If the privilege
belongs to the individual, there should be a clear understanding as
to whether or not the information gained during the representation
may be shared with the agency client. . . . If information disclosed
by the individual will be shared with the agency, and especially if
the agency has authority to assert or waive the privilege with
respect to such information, the government lawyer must consider
whether an essentially unprivileged discussion (from the
perspective of the employee) will be sufficiently ‘full and frank’ to
prove a reliable basis for a conflict determination.”
b. If “a government agency and an individual agency constituent are
both parties, the availability of different defenses for governmental
entities than for individuals may lead to an insurmountable
conflict.”
c. “If a non-waivable conflict surfaces during a privileged interview
of a government employee, the government lawyer may be
disqualified from further representation of the agency as well as of
the employee.”
2. Cases involving claims of conflict of interest arising out of joint
representation by government lawyer of agency and constituent
a. Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984),
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modified, 748 F.2d 69: impermissible conflict of county attorney
who represented county police officer and county in claim for
personal injuries of man whom officer beat after discovering him
with officer’s wife.
3. Consent to conflicts:
a. Must determine who is authorized to consent on behalf of
government
b. Who has standing to challenge the government’s consent to joint
representation?
VII. Wrongdoing by an Agency Constituent
A. Reporting Up the Ladder, MR 1.13(b)
1. Requires the government lawyer to understand who the client is and who
is “the highest authority that can act on behalf of the organization.”
2. R3d § 97 cmt. j: “With respect to referral of a matter to a higher authority,
such a referral can often be made to allied governmental agencies, such as
the government’s general legal office, such as a state’s office of attorney
general.”
B. Withdrawal
1. Mandatory withdrawal, MR 1.16(a)(1): lawyer must withdraw if “the
representation will result in violation of the rules of professional conduct
or other law.”
C. Mandatory reporting statutes
1. Many government agencies are subject to statutes and regulations
governing the reporting of waste, fraud, and abuse.
2. U.S. Department of Justice standards state that “Department employees
shall report to their U.S. Attorney or Assistant Attorney General, or other
appropriate supervisor, any evidence or nonfrivolous allegation of
misconduct that may be in violation of any law, rule, regulation, order, or
applicable professional standards.”
3. 28 U.S.C. § 535(b): “Any information, allegation, matter, or complaint
witnessed, discovered, or received in a department or agency of the
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executive branch of the Government relating to violations of Federal
criminal law involving Government officers and employees shall be
expeditiously reported to the Attorney General by the head of the
department or agency, or the witness, discoverer, or recipient, as
appropriate, unless– (1) the responsibility to perform an investigation with
respect thereto is specifically assigned otherwise by another provision of
law; or (2) as to any department or agency of the Government, the
Attorney General directs otherwise with respect to a specified class of
information, allegation, or complaint.”
4. Federal Bar Ass’n Op. 73-1, The Government Client and Confidentiality,
32 Fed. Bar. J. 71 (1973): “does not believe there are any circumstances in
which corrupt conduct may not be disclosed by the federally employed
lawyer,” apart from circumstances involving personal representation of an
individual by the government lawyer.
VIII. Ethical Provisions Relating to Government Lawyers
A. ABA Model Rules of Professional Conduct
1. MR 1.13 cmt. [9]: The duty defined in this Rule applies to governmental
organizations. Defining precisely the identity of the client and prescribing
the resulting obligations of such lawyers may be more difficult in the
government context and is a matter beyond the scope of these Rules. See
Scope [18]. Although in some circumstances the client may be a specific
agency, it may also be a branch of government, such as the executive
branch, or the government as a whole. For example, if the action of
failure to act involves the head of a bureau, either the department of which
the bureau is a part or the relevant branch of government may be the client
for purposes of this Rule. Moreover, in a matter involving the conduct of
government officials, a government lawyer may have authority under
applicable law to question such conduct more extensively than that of a
lawyer for a private organization in similar circumstances. Thus, when the
client is a governmental organization, a different balance may be
appropriate between maintaining confidentiality and assuring that the
wrongful act is prevented or rectified, for public business is involved. In
addition, duties of lawyers employed by the government or lawyers in
military service may be defined by statutes and regulation. This Rule does
not limit that authority. See Scope.
2. Scope [18]: Under various legal provisions, including constitutional,
statutory and common law, the responsibilities of government lawyers
may include authority concerning legal matters that ordinarily reposes in
the client in private client-lawyer relationships. For example, a lawyer for
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a government agency may have authority on behalf of the government to
decide upon settlement or whether to appeal from an adverse judgment.
Such authority in various respects is generally vested in the attorney
general and the state’s attorney in state government, and their federal
counterparts, and the same may be true of other government law officers.
Also, 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.
3. MR 1.0 cmt. [3]: “With respect to the law department of an organization,
including the government, there is ordinarily no question that the members
of the department constitute a firm within the meaning of the Rules of
Professional conduct.” Thus, for example, imputation of conflicts MR
1.10(a), applies.
B. Restatement (Third) Law Governing Lawyers
1. § 97: A lawyer representing a governmental client must proceed in the
representation as stated in § 96, except that the lawyer:
(1) possesses such rights and responsibilities as may be defined by
law to make decisions on behalf of the governmental client that are
within the authority of a client under §§ 22 and 21(2);
(2) except as otherwise provided by law, must proceed as stated in
§§ 96(2) and 96(3) with respect to an act of a constituent of the
governmental client that violates a legal obligation that will likely
cause substantial public or private injury or that reasonably can be
foreseen to be imputable to and thus likely result in substantial
injury to the client;
(3) if a prosecutor or similar lawyer determining whether to file
criminal proceedings, must do so only when based on probable
cause and the lawyer’s belief, formed after due investigation, that
there are good factual and legal grounds to support the step taken;
and
(4) must observe other applicable restrictions imposed by law on
those similarly functioning for the governmental client.
2. No case citations to R3d § 97 yet
C. ABA Model Code of Professional Responsibility
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1. EC 7-11: The responsibilities of a lawyer may vary according to the . . .
obligation of a public officer.
2. EC 7-14: A government lawyer who has discretionary power relative to
litigation should refrain from instituting or continuing litigation that is
obviously unfair. A government lawyer not having such discretionary
power who believes there is lack of merit in a controversy submitted to
him should so advise his superiors and recommend the avoidance of unfair
litigation. A government lawyer in a civil action or administrative
proceeding has the responsibility to seek justice and to develop a full and
fair record, and he should not use his position or the economic power of
the government to harass parties or to bring about unjust settlements or
results.
Hypothetical 5: Definition of Client – Government Entities
You joined your state’s attorney general’s office immediately after law school, and have
developed an interesting practice representing state-operated colleges. One of your college
clients just asked for your help in pursuing a matter adverse to another state entity (which funds
and processes state and employee health care claims). You have never worked for the state health
care agency.
May you represent the state-operated college in a matter adverse to the state-operated
health plan?
Analysis
The question here is whether a lawyer’s representation of one arm of the government
precludes the lawyer’s involvement in matters adverse to other arms of the government.
The ABA addressed this issue in ABA LEO 405 (4/19/97). The ABA explained that
determining whether a lawyer may represent one government entity while being adverse to
another depends upon “whether the two government entities involved must be regarded as the
same client” or whether one representation may be “materially limited” by the other, in which
case the conflict might be curable with consent. The ABA also explained that determining if
governmental entities are the same client is a “matter of common sense and sensibility” including
such factors as: entities’ understandings and expectations; any understanding between the entities
and the lawyers; whether the government entities have “independent legal authority with respect
to the matter for which the lawyer has been retained”; the entities’ stake in the substantive issues
or shared concerns about the outcome. In discussing adversity, the ABA explained that
determining if one representation would be “materially limited” by another representation
depends on whether the matter would affect the “financial well-being or programmatic purposes”
of either client. In some situations, a lawyer’s representation of a government entity “on an
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important issue of public policy so identifies her with an official public position” that the lawyer
could not oppose the government, even on an entirely unrelated matter.
The Restatement (Third) of Law Governing Lawyers § 97 cmt. c acknowledges that a
government lawyer ultimately represents to the public, but notes that such a definition is “not
helpful.” The Restatement proposes as the “preferable approach” an arrangement regarding “the
respective agencies as the clients” and the lawyers representing those agencies “as subject to the
direction of those officers authorized to act in the matter involved in the representation.” The
Restatement concludes that “[i]f a question arises concerning which of several possible
governmental entities a government lawyer represents, the identity of the lawyer’s governmental
client depends on the circumstances.”
Courts generally take the same approach. For instance, in Brown & Williamson Tobacco
Corp. v. Pataki, 152 F. Supp. 2d 276 (S.D.N.Y. 2001), the court refused to disqualify the law
firm of Covington & Burling from representing plaintiff Brown & Williamson in a lawsuit
against New York State, despite the law firm’s long-term representation of New York state
agencies on unrelated matters. The court explained that the identity of the law firm’s client was
not necessarily determined by the agency with which the law firm contracted, or the face that the
law firm’s bills are directed to “State of New York.” The court eschewed a “formalistic”
approach, and instead found that “the agencies responsible for the matters specified in [the law
firm’s] contract are its clients.” Id. At 287.
Virginia takes the same basic approach. Virginia Rule 1.7 Comment [14] explains that:
Government lawyers in some circumstances may represent government
employees in proceedings in which a government agency is the opposing
party.
A number of Virginia Legal Ethics Opinions take the same approach. Virginia LEO 1785
(11/14/03) (holding that a part-time County Attorney may not represent a Board of Supervisors
in a lawsuit against the county’s Board of Zoning Appeals, because the County Attorney was
either currently representing or had formerly represented the Board of Zoning Appeals in the
matter – thus treating the different governmental entities as separate clients for conflicts of
interest purposes); Virginia LEO 1776 (5/19/03) (each jurisdiction’s Public Defender and each
jurisdiction’s Capital Defense Unit should be considered separate legal entities for conflicts
purposes, because each office acts independently, has a secure computer system and bears none
of the indicia of the offices in a multi-office law firm; although a single state Commission
oversees all of the offices, this fact should not result in a presumption that information in one
office is shared with other offices; a Public Defender in an office may represent a capital
defendant in a matter adverse to a client formerly represented by another lawyer in that office,
“unless the defense of the current client would require the use of [protected] information
obtained in the representation of the former client.”); Virginia LEO 964 (3/1/88) (explaining that
the Virginia Attorney General represents Virginia governmental departments as units, thus
impliedly recognizing that the state “government” is not a single monolithic client for conflicts
purposes); Virginia LEO 495 (9/3/82) (explaining that a lawyer may be adverse to a school board
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although the lawyer’s partner represents the Board of Supervisors, because the governmental
entities are separate “with neither being a parent body of the other”).
The best answer to this hypothetical is PROBABLY YES.
Hypothetical 6: Separate Representation of Government Officials
You have known the current governor since childhood, and for many years have been
either her formal or informal advisor. When she was elected governor, you joined your state’s
Attorney General’s office and continued to serve as one of her advisors. Your lifelong friend has
recently fallen on hard times, and the federal government is investigating her for possible illegal
conduct. You just received a subpoena to testify about communications you had with the
governor, and you naturally want to avoid disclosing those communications.
May you rely on the attorney-client privilege in refusing to answer questions about
communications you had with the governor?
Analysis
Although the Virginia State Bar has not frequently addressed this issue, it has
acknowledged that government lawyers may represent government employees in certain
circumstances – with full disclosure and consent.a
The Bar’s analysis did not include a discussion of the privilege ramifications of the
separate representation.
In a number of high-profile federal cases, several courts have forced government lawyers
to provide testimony to grand juries about communications they had with other government
employees. These courts reason that [government lawyers owe their duty to the government as a
whole] not just to the agency with which they most often work. Therefore, they generally cannot
claim the attorney-client privilege in refusing to testify in a criminal investigation focusing on a
governmental entity.
On the other hand, a recent Second Circuit case has taken the opposite approach. United
States v. Doe (In re Grand Jury Investigation), 399 F. 3d 527 (2d Cir. 2005). The District Court
a Virginia LEO 1661 (2/28/96) (a City Attorney may represent a police officer in a case in which both
compensatory damages and punitive damages are sought, even though the city would not be responsible for the
payment of any punitive award; the city and the officer agree on the basic underlying facts and believe that they will
advance consistent defenses; still, the City Attorney must advise the officer in writing that the officer has the right to
seek independent counsel to defend the punitive damage claim, and that the lawyer “would be required to withdraw
from representation if discovery reveals the appropriateness of antagonistic defenses or that the officer acted
contrary to City policy or outside the scope of his employment”, the Bar analogized the situation to a lawyer hired
by an insurance company representing an insured – “although paid by the insurer, the lawyer must represent the
insured with undivided loyalty”; may not disclose or use confidences or secrets “which may create a policy defense
for the insurance company”; and must withdraw if the insured and insurer disagree about whether to settle the case).
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had compelled ex-Connecticut Governor Rowland’s former chief legal counsel to answer
questions about conversations she had with then-Governor Rowland. The Second Circuit
reversed, finding that Governor Rowland enjoyed a personal attorney-client relationship with the
government lawyer – meaning that the lawyer could refuse to testify. The Second Circuit relied
primarily on cases recognizing that the government itself can enjoy an attorney- client
relationship with a government lawyer (which is beside the point), and acknowledged that its
opinion conflicts with an earlier Seventh Circuit decision and “is in sharp tension” with decisions
by the Eighth and D.C. Circuits. Id. at 536 n.4.
It will be interesting to see if this split among the Circuits results in a United States
Supreme Court decision on this issue.
The best answer to this hypothetical is NO (PROBABLY).
Hypothetical 7: Ex Parte Contacts with a Private Corporate Adversary’s Employees
You work in the attorney general’s office, and you are defending a state agency in a
breach of contract case brought by a local company. After you analyze the plaintiff’s initial
document production, you determine that there are two key witnesses with knowledge of
plaintiff’s alleged damages – a billing clerk still employed by the plaintiff, and the plaintiff’s
former chief financial officer. You think that the plaintiff’s damage theory is a lawyer creation
that is inconsistent with the historical record. You would like to privately interview these
witnesses without advising the plaintiff’s lawyers.
(a) May you interview the plaintiff’s billing clerk without advising the plaintiff’s lawyers?
(b) May you interview the plaintiff’s former chief financial officer without advising the
plaintiff’s lawyers?
Analysis
Under Virginia Rule 4.2, a lawyer cannot:
Communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.
Virginia Rule 4.2 applies to this situation, since you want to communicate with
representatives of an adverse party. Here, the question is whether the adverse party’s current or
former employees fall within the definition of “adverse party” for purposes of the rule.
(a) In Virginia, Virginia Rule 4.2 Comment [4] prohibits ex parte contacts only with a
corporate adversary’s: (1) “control group” (defined as those with “authority to bind
the corporation”); and (2) “persons who may be regarded as the ‘alter ego’ of the
organization.”
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On the other hand, in one Legal Ethics Opinion the Virginia Bar indicated that lawyers
initiating such ex parte contacts must disclose their adversarial role, and then try “to ascertain
whether that employee feel that his employment or his situation requires that he first
communicate with counsel for the corporate entity.” Virginia LEO 905 (3/17/89). A lawyer
concluding that the employee “feels” this way must presumably end the communication.
In addition, Virginia practitioners do not dare follow the Virginia Bar’s approach without
checking substantive case law. For some reason, Virginia federal courts have applied the ABA
approach (discussed below) rather than the Virginia approach. To make it even more confusing,
the Virginia federal courts have adopted what was then the ABA approach (which prohibited ex
parte contacts with a corporate adversary’s employees whose statements would be considered
party admissions). If the Virginia federal courts’ rulings have been simply an adoption of the
ABA approach, would it be safe to assume that the federal courts would now adopt the new ABA
approachb -- which indicates that such employees are fair game for ex parte contacts? If the
federal courts were adopting the ABA approach as their own substantive law, then the answer to
that question might well be no.
All in all, lawyers would be wise to think long and hard before contacting a corporate
adversary’s employee.c
(b) In Virginia, Virginia Rule 4.2 cmt. [4] indicates on its face that the prohibition on
ex parte contacts “does not apply to former employees or agents of the organization.”
The Comment even indicates that “an attorney may communicate ex parte with such
former employee or agent even if he or she was a member of the organization’s
internal ‘control group.’” Virginia state courts would presumably follow this
approach (there appears to be no case law).
b The ABA has recently changed its approach. Comment [7] to ABA Model Rule 4.2 indicates that :
In the case of a represented organization, this Rule prohibits communications with a constituent of
the organization who supervises, directs or regularly consults with the organization’s lawyer
concerning the matter or has authority to obligate the organization with respect to the matter or
whose act or omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for
communication with a former constituent. If a constituent of the organization is represented in the
matter by his or her own counsel, the consent by that counsel to a communication will be
sufficient for purposes of this Rule.
The ABA Ethics 2000 Task Force deleted from the off-limits corporate employees those “whose statement may
constitute an admission on the part of the organization.”
Under the ABA approach, the off-limits employees would include the company’s “control group” and
employees whose acts or omissions (in connection with the pertinent matter) may render the company liable. This
approach renders off limits all employees whose statements may constitute admissions by the corporation) certainly
makes more employees fair game for ex parte contacts. c In addition to all of the ethics issues, lawyers who make such ex-parte contacts might find themselves
witnesses in the case – raising additional ethics and disqualification issues.
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However, the Virginia federal courts are split. The Eastern District Court would
presumably follow the ABA approach, while the Western District has explicitly
indicated that even former employees of a corporate adversary are off limits.
The best answer to hypothetical (a) is PROBABLY YES and the best answer to hypothetical (b)
is MAYBE.
Hypothetical 8: Ex Parte Contacts with a Public Adversary’s Employees
You are with the attorney general’s office lawyer and assist state school boards in dealing
with special education issues. You have had an increasing problem with lawyers for anxious and
upset parents directly contacting school administration officials and employees without advising
you beforehand. Your client wants to know the ground rules for such ex parte contacts.
(a) May a lawyer for a parent conduct ex parte communications with the head of the school
administration?
(b) May a lawyer for a parent conduct ex parte communications with a lower level school
administration employee?
Analysis
(a)-(b) The issue of private citizens or their lawyers communicating with government
officials or employees implicates First Amendment principles as well as ethics principles.
Ironically, the ABA issued an ethics opinion that takes exactly the opposite approach. In
ABA LEO 408 (8/2/97), the ABA indicated that First Amendment considerations allowed an
adverse lawyer to communicate ex parte with government officials “who have authority to take
or to recommend action,” as long as the lawyer’s “sole purpose” was to “address a policy issue.”
The ABA required that the lawyer in such a setting provide advance notice to the government’s
lawyer about the communication.
On the other hand, the ABA indicated that a lawyer’s communication with lower-level
government employees do not implicate the First Amendment. For this reason, a lawyer could
not conduct ex parte communications with government employees who are “not authorized to
take or recommend action in the matter, or where the purpose of the communication is to
develop evidence as well as address a policy issue.”
Best Answer
Under the Virginia approach, the best answer to hypothetical (a) is PROBABLY NO and
the best answer to hypothetical (b) is PROBABLY YES
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Hypothetical 9: Request to Avoid Ex Parte Communications
You are a lawyer with the AG’s office representing another local government agency
with several hundred employees that has been sued for racial discrimination. You suspect that
Plainntiff’s counsel will begin calling some of your agency's current and former employees to
gather evidence. You would like to take whatever steps you can to protect your client/agency
from these interviews.
(a) May you send a memorandum to all current agency employees "directing" them
not to talk with the plaintiff's lawyer if she calls them?
(b) May you send a memorandum to all current agency employees "requesting" them not to
talk with the plaintiff's lawyer if she calls them?
(c) May you advise agency employees that they are not required to talk to the plaintiff's
lawyer if the lawyer calls them?
Analysis
The ABA permits some defensive measures as an exception to the general prohibition on
lawyers providing any advice to unrepresented persons.
A lawyer shall not . . . request a person other than a client to refrain
from voluntarily giving relevant information to another party
unless:
(1) the person is a relative or an employee or other agent of
a client; and
(2) the lawyer reasonably believes that the person's
interests will not be adversely affected by refraining from giving
such information.
ABA Model Rule 3.4(f) (emphases added).
The Rule seems self-evident, although the ABA added a small comment.
Paragraph (f) permits a lawyer to advise employees of a
client to refrain from giving information to another party, for the
employees may identify their interests with those of the client. See
also Rule 4.2.
Virginia and ABA Model Rule 3.4 cmt. [4] (emphasis added). The ABA has not reconciled its
use of the term "request" in the black-letter rule and its use of the term "advise" in the comment.
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The former seems weaker than the latter, and the distinction might make a real difference in the
effect that the lawyer's communication has on the client employee/agent. An employee receiving
an ex parte contact from an adversary might think that she can ignore her employer's lawyer's
"request" to refrain from talking to the adversary's lawyer, but might feel bound if the employer's
lawyer has "advised" her not to give information to the adversary's lawyer.
The Restatement addresses this issue as part of its ex parte contact provision. The
Restatement uses the "request" standard, and even specifically warns that lawyers may run afoul
of other rules if they "direct" their client employees/agents not to speak with an adversary's
lawyer. The Restatement also answers a question that the ABA Model Rules leave
open -- whether lawyers' requests that their client employees/agents not give information to the
adversary limit in any way the adversary's lawyers from trying to obtain such information. The
Restatement indicates that it does not.
A principal or the principal's lawyer may inform employees or
agents of their right not to speak with opposing counsel and may
request them not to do so (see § 116(4) & Comment e thereto). In
certain circumstances, a direction to do so could constitute an
obstruction of justice or a violation of other law. However, even
when lawful, such an instruction is a matter of intra-organizational
policy and not a limitation against a lawyer for another party who
is seeking evidence. Thus, even if an employer, by general policy
or specific directive, lawfully instructs all employees not to
cooperate with another party's lawyer, that does not enlarge the
scope of the anti-contact rule applicable to that lawyer.
Restatement (Third) of Law Governing Lawyers § 100 cmt. f (2000) (emphases added).
Most states take this approach.
(a) The ABA and state ethics rules only allow a lawyer to "request" that current client
employees not provide information to the corporation's adversaries. The Restatement explains
that "[i]n certain circumstances, a direction to do so could constitute an obstruction of justice or a
violation of other law. " Restatement (Third) of Law Governing Lawyers § 100 cmt. f (2000)
(emphasis added).
(b) The ABA, the Restatement and state ethics rules allow company lawyers to take
this step. Another option is for the company's lawyers to advise company employees that they
are free to meet with lawyers for the company's adversary, but that the company lawyers would
like to attend such meetings.
(c) Lawyers may find themselves facing another ethics rule if they do more than
"request" that an employee or former employee not voluntarily provide facts to an adversary.
For instance, lawyers advising an employee or former employee that they do not have to speak
with the adversary's lawyer almost surely are giving legal advice to an unrepresented person.
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The ABA Model Rules provide that:
The lawyer shall not give legal advice to an unrepresented person,
other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are or
have a reasonable possibility of being in conflict with the interests
of the client.
ABA Model Rule 4.3. A comment provides further guidance.
The Rule distinguishes between situations involving unrepresented
persons whose interests may be adverse to those of the lawyer's
client and those in which the person's interests are not in conflict
with the client's. In the former situation, the possibility that the
lawyer will compromise the unrepresented person's interests is so
great that the Rule prohibits the giving of any advice, apart from
the advice to obtain counsel. Whether a lawyer is giving
impermissible advice may depend on the experience and
sophistication of the unrepresented person, as well as the setting in
which the behavior and comments occur.
ABA Model Rule 4.3 cmt. [2].
The best answer to (a) is PROBABLY NO; the best answer to (b) is YES; the best
answer to (c) is MAYBE; the best answer to (d) is PROBABLY YES.
ELECTRONIC COMMUNICATIONS GENERALLY
Advances in technology have brought new methods of communication and information
storage to the practice of law, including e-mail, mobile telephones, facsimile machines, digital
document creation and storage, electronic bulletin boards, chatrooms, and listservs.
A lawyer's duties with respect to protecting the confidentiality of client information—
whether under the ethics rules or the evidentiary attorney-client privilege—remain the same
regardless of the method by which the information is communicated or stored. However, the
unique features of electronic communication and storage require that special attention be paid to
(1) the specific precautions necessary to protect client information; and (2) the possibility of
triggering a duty of confidentiality by unintentionally forming a lawyer-client relationship—or,
more likely, a lawyer-“prospective client” relationship.
When a lawyer sends, receives, or stores client information in electronic form, the
lawyer's duty to protect that information from disclosure to unauthorized individuals is the same
as it is for information communicated or kept in any other form. However, electronic information
has features that affect both the means required to protect client information and the manner in
which the duty is triggered in the first place.
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Those features include:
A. Decreased control over the nature and amount of information received from others,
as well as a decreased ability to identify the sender prior to opening an e-mail. This
creates the possibility that by merely opening an e-mail, the lawyer may create a
lawyer-“prospective client” relationship with the sender (whose identity might have
been previously unknown), triggering a number of professional obligations, including
the duty of confidentiality.
B. Greater susceptibility to unauthorized access. Electronic communications may be
more susceptible to interception by unauthorized or unknown persons than are other
forms of communication. Creation and storage of client information in electronic
form via outside service providers also heighten the risk of unauthorized disclosure.
C. The existence of metadata (embedded information about a document, such as when it
was created, who has worked on it, and how it has been changed), which creates a
greater risk of unknown or inadvertent disclosure. Many electronic documents
contain metadata that is usually hidden from users' view and that may include
protected information. Its invisibility creates a heightened risk that the information
won't be removed before the electronic documents are turned over to others.
D. Increased opportunity for inadvertent disclosure of client information due to the
greater ease of transmitting large amounts of information electronically.
An additional concern becomes the issue of the client’s use of their own e-mail,
cellphone, social media sites and other electronic devices and resources. It quickly becomes the
lawyer’s responsibility to advise and assist the client in managing those resources as well, since a
compromise of client information by opposing party or counsel can be extremely detrimental to
the client’s matter.
I. E-MAILS
Some older ethics opinions forbade use of cellular and cordless phones and unencrypted
e-mail without client consent. However, more recent authorities condone the use of electronic
communication, even without encryption, reasoning that the expectation of privacy is the same
as for ordinary telephone use. In this regard, some opinions rely partly on the fact that the
unauthorized interception of electronic communications is a federal crime under the Electronic
Communication Privacy Act, 18 U.S.C. §§2511, 2701. As the ABA's Standing Committee on
Ethics and Professional Responsibility reasoned in ABA Formal Ethics Op. 99-413 (1999):
[E]-mail communications, including those sent unencrypted over the Internet, pose no greater
risk of interception or disclosure than other modes of communication commonly relied upon as
having a reasonable expectation of privacy. The level of legal protection accorded e-mail
transmissions, like that accorded other modes of electronic communication, also supports the
reasonableness of an expectation of privacy for unencrypted e-mail transmissions. The risk of
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unauthorized interception and disclosure exists in every medium of communication, including e-
mail. It is not, however, reasonable to require that a mode of communicating information must be
avoided simply because interception is technologically possible, especially when unauthorized
interception or dissemination of the information is a violation of [the ECPA].
So while security related to email usage with co-counsel or opposing counsel seems
protected, what about email communications with your client. As Rule 1.6 states, the duty of
protecting the client’s confidences belongs to the lawyer, therefore, it is prudent that when
considering email communications with a client the lawyer considers several factors, such as:
1. Is the client’s email address personal or a business address?
2. Is the client’s email access on a personal computer or shared computer (meaning
employer computer or household computer)?
3. Is the client’s access to that email secure (or have they shared their password with
others)?
E-Mail Cautions:
1. Make sure you know who the intended recipients are and to whom copies should be
sent.
2. The client’s file should be documented to show appropriate contact information on
client at time of Intake.
3. Determination should be made at time of Intake of client’s matter as to whether e-
mail communication is an appropriate form of communication based on the nature of
the matter and information.
4. A system should be developed to insure that copies of e-mails are put into the file as
documentation of matters communicated (an electronic file should be established to
track all electronic communications).
5. “Reply” or “reply all”? Make sure you use e-mail responses appropriately. Just
because opposing counsel copies his client on an e-mail communication to lawyer
that does not give lawyer permission to cc: his response to opposing party as well.
Think about this as you would a letter with a cc: at the bottom; lawyer would never
cc: opposing party in his response even though opposing counsel copies his client on
the letter. Same rules apply as per Rule 4.2. Lawyer cannot cc: his e-mail response
to opposing party without opposing counsel’s permission or he will have violated
Rule 4.2 regarding communications with person’s represented by counsel.
6. When appropriate, use an e-mail form that indicates the materials contained are
attorney-client privileged and intended only for the party to whom they were directed.
The note should further indicate that should someone other than the intended recipient
receive the communication, the attorney’s office should be contacted immediately
and the communication returned without having been read. (See Virginia LEO 1702
addressing this issue which adopted the conclusion reached in ABA Formal Opinion
92-368 (subsequently withdrawn by ABA Formal Opinion 05-437). Virginia LEO
1702 states that a lawyer who “receives materials that on their face appear to be
subject to the attorney-client privilege or otherwise confidential, under circumstances
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where it is clear they were not intended for the receiving lawyer, should refrain from
examining the materials, notify the sending lawyer and abide by the instructions of
the lawyer who sent them.” (Note that Virginia has not adopted ABA Model Rule
4.4(b) which states: RESPECT FOR RIGHTS OF THIRD PERSONS:(b) A lawyer
who receives a document or electronically stored information relating to the
representation of the lawyer's client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent shall promptly
notify the sender.)
II. CLIENT’S USE OF EMPLOYER’S COMPUTER
Several cases have examined what happens when employees communicate with their
personal attorneys via employer-provided networks or computers. The courts analyzed whether
the employer clearly reserved the right to monitor employees' electronic communications, thus
eliminating any reasonable expectation of confidentiality and vitiating any claim of privilege.
III. SOCIAL MEDIA AND RELATED ISSUES
Regardless of your practice area, online connections are fraught with the same ethical
pitfalls as in-person interaction with potential clients and others. With the volume of
communication made possible by social networking sites, these ethical risks are only magnified:
Commenting on pending trials or revealing specific case results without a disclaimer.
Recklessly criticizing judges or other attorneys, or giving that impression.
Revealing privileged or confidential information.
Exposing the law firm to claims of defamation or harassment.
Sending messages that appear to be legal advice, which can create unintended attorney-
client relationships.
Violating ethics rules against solicitation of legal work.
Practicing law in a jurisdiction where you are not licensed.
Receiving messages that contain malware or illegal materials.
A. Diligence and competence (Rule 1.1 and 1.4) require the lawyer to:
1. Understand if/how clients are using social networking,
2. Advise clients as to their further use of social networking to their best advantage, and
3. Use social networking sites as investigative tools (opposing party, witnesses, jurors)
B. Confidentiality (Rule 1.6):
1. Messages via Twitter or other social networks must be treated with the same
degree of reasonable care as messages via e-mail or other traditional
communications.
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2. Discussion about pending legal matters raises problems, and generally should be
left to traditional e-mail format.
C. Pretexting
Before beginning a jury trial, many attorneys are turning to social networking sites as an
invaluable research tool into the suitability of citizens on the jury list. Judges are increasingly
checking probationer’s web pages for evidence of drug and alcohol violations. But, diligent
research becomes an ethical violation when this passive collection of available information leads
to more active online investigations. A defense attorney or investigator, for example, cannot
“friend” a prosecution witnesses in an attempt to glean impeachment evidence.
Virginia Rule 8.4(c) prohibits the “dishonesty, fraud, deceit or misrepresentation”
required to pretextually “friend” someone online only to garner information useful to a client or
harmful to the opposition. And, under Rule 8.4(a) a lawyer cannot use another person to
circumvent the Rules, so paralegals and investigators must also be careful how much they dig
online.
The Philadelphia Bar Association’s ethics committee declared unethical a lawyer’s plan
to collect information about an adverse litigation witness by hiring an investigator to
gain access to the witness’s personal online social networking profiles (Philadelphia
Bar Ass’n Professional Guidance Comm., Op. 2009-02, March 2009).
Employing a third party to befriend an adversarial witness through an online social
network in order to obtain access to the witness’s personal pages clearly constitutes
unethical deception, the committee said, because the plan involves concealing “the
highly material fact” that any information collected from those pages would later be
used to impeach the witness. The committee concluded that the proposed course of
conduct would violate Pennsylvania Rules of Professional Conduct 8.4(c) (conduct
involving dishonesty, fraud, deceit, or misrepresentation), 4.1(a) (knowingly making
false statements of material fact to third person) and 8.4(a) (violating Rules through acts
of another). And, the attorney was held accountable for the investigator’s conduct under
Rule 5.3(c)(1), which makes lawyers responsible for behavior the lawyer “orders” or
“ratifies.”
Furthermore, when communicating with any person online, whether under a friendly
pretext or after appropriate disclosures, attorneys should also bear in mind the dictates of Rules
4.2 and 4.3 for dealing with those represented by counsel or with unrepresented persons.
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IV. DOCUMENTS
A. Inadvertent Receipt/Disclosure of Document
Because electronic communication makes it possible to transmit large amounts of data
with relative ease, it therefore presents greater opportunities for inadvertent disclosure of client
information, including privileged information. Since Virginia has not adopted Model Rule
4.4(b) this issue is most recently addressed in LEO 1702 (referenced previously).
The question of whether the attorney-client privilege is waived when a lawyer
inadvertently transmits privileged information to another is a question of substantive law that
varies from one jurisdiction to another. Generally speaking, courts have taken one of three
positions on it:
• the “strict” position that inadvertent disclosure always destroys the privilege; e.g., Wichita
Land & Cattle Co. v. Am. Fed. Bank FSB, 148 F.R.D. 456 (D.D.C. 1992) (“[d]isclosure of
otherwise-privileged materials, even where the disclosure was inadvertent, serves as a waiver of
the privilege”);
• the “lenient” position that only a knowing waiver by the client can destroy the privilege;
e.g., Mendenhall v. Barber-Greene Co., 531 F. Supp. 936 (S.D. Fla. 1991) (“mere inadvertent
production by the attorney does not waive the client's privilege’); or
• the “intermediate” position that the effect on the privilege depends on the circumstances of the
disclosure; e.g., Elkton Care Ctr. Assocs. v. Quality Care Mgmt., 805 A.2d 1177, 18 Law. Man.
Prof. Conduct 572 (Md. Ct. Spec. App. 2002) (discussing three approaches and adopting
intermediate position; court identifies five factors to consider in deciding whether circumstances
amount to waiver of privilege); Amersham Biosciences Corp. v. PerkinElmer Inc., No. 03-4901
(JLL), 2007 WL 329290 (D.N.J. Jan. 31, 2007) (applying five-factor test to party's inadvertent
disclosure of privileged metadata).
The Restatement embraces the intermediate position. Restatement (Third) of the Law
Governing Lawyers (2000) §79 cmt. h (Reporter's Note indicates that majority of courts “take the
intermediate position” and “preserve the privilege unless, in effect, the client's own negligence
produced the compromising disclosure”).
A great case example: A client sent a law firm a compact disk containing several hundred
e-mails. The client asked the firm to review the information, remove privileged material, and
produce the remainder to an adversary's discovery manager for conversion to paper format. A
firm lawyer reviewed most of the files, deleted some that he considered privileged, and failed to
review others that the firm's software could not open. Copies of the deleted files, however,
remained on the disk in the form of metadata and the discovery manager's software was able to
retrieve, convert, and produce to the adversary both the deleted files and the files that the lawyer
could not open.
The court held that the law firm's efforts to protect privileges did not display the
“reasonable diligence” necessary to preserve privileges, with the result that all privileges were
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lost as to the entire contents of the disk. Amersham Biosciences Corp. v. PerkinElmer Inc., No.
03-4901 (JLL), 2007 WL 329920 (D.N.J. Jan. 31, 2007).
B. Metadata
Many types of computer software create information that is not visible on the screen or in
the printed document, but that can be accessed by those with knowledge of the software's
properties. This hidden information, sometimes referred to as “metadata,” may reveal such
details about the document's authorship, preparation, prior drafts, and revisions, and therefore
about the attorney's legal strategy—even information that the drafter thought had been erased
from the visible document. See, e.g., Advante Int'l Corp. v. Mintel Learning Tech., No. C 05-
01022 JF(RS), 2008 WL 108900 (N.D. Cal. Jan. 8, 2008) (analyzing discoverability of “redline”
version—that is, with deletions still visible—of draft interrogatory response inadvertently
produced on client's hard disk.)
Duty to Prevent Disclosure of Metadata
Several ethics opinions have concluded that lawyers who transmit electronic documents
to third parties have a duty to ensure that no client information is revealed in embedded
metadata. Both Rule 1.1 regarding competent representation and Rule 1.6 regarding
confidentiality require lawyer’s attention to understanding metadata.
Similarly, a lawyer's failure to take reasonable precautions to remove metadata containing
client information before producing it to an adversary in litigation may waive the attorney-client
privilege. SeeAmersham Biosciences Corp. v. PerkinElmer Inc., No. 03-4901 (JLL), 2007 WL
329290 (D.N.J. Jan. 31, 2007) (law firm waived attorney-client privilege and work product
protection concerning client e-mails by producing compact disk containing information in hidden
metadata files and files inaccessible to producing firm but later recovered by adversary's outside
discovery manager); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)
(defendant waived attorney-client privilege as to metadata removed in original production by
failing to timely raise objection; ordered to produce).
Searching for Others' Metadata
Jurisdictions are split on the question whether it is ethically permissible for a receiving
lawyer to search for metadata in electronic documents. Virginia has taken no position on the
issue of metadata. The ABA's Standing Committee on Ethics and Professional Responsibility
concluded that a receiving lawyer is free to look for hidden, embedded information and use
it. ABA Formal Ethics Op. 06-442, 22 Law. Man. Prof. Conduct 555 (2006); accord Maryland
Ethics Op. 2007-09, 22 Law. Man. Prof. Conduct 626 (2006) (lawyer receiving metadata may
look for and use it, and need not notify sender when it is found).
Other ethics committees, however, have advised that a receiving lawyer should refrain
from looking for embedded data in electronic documents. Alabama Ethics Op. 2007-02, 23 Law.
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Man. Prof. Conduct 219 (2007) (“mining of metadata by an attorney to uncover confidential
information would be a violation of [Rule 8.4]”); Arizona Ethics Op. 07-03, 23 Law. Man. Prof.
Conduct 641 (2007) (when receiving electronic document, lawyer has duty “not to ‘mine’ the
document for metadata”); District of Columbia Ethics Op. 341, 23 Law. Man. Prof. Conduct 501
(2007) (receiving lawyer prohibited from viewing metadata if lawyer has “actual knowledge”
that sender “inadvertently” included it); Florida Ethics Op. 06-2 (2006) (Rule 4.4(b) prohibits
lawyers from trying to obtain any information from metadata unless it was purposely and
knowingly supplied); New York State Ethics Op. 749 (2001) (looking for information revealed
in metadata constitutes “an impermissible intrusion on the attorney-client relationship in
violation of the Code” of Professional Responsibility).
Federal Rule Civil Procedure 26(b)(5)(B)
This rule requires a party receiving privileged or work product documents claiming to
have been inadvertently produced by the other side to hold those documents until a court
analyzes the situation. The Rule does not address whether the production has waived any
protection. Before discovery starts in federal litigation it may be important to obtain a court
order with a “clawback” provision specifying realistic terms and conditions for recovering
inadvertently-produced documents.
By Failure to Object
In Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005), the defendants
in an age discrimination action were ordered to produce several thousand spreadsheets “in the
manner in which [the information] was maintained.” Before producing electronic versions of the
spreadsheets, however, the defendant “scrubbed” the metadata from them. The district court
judge, on learning that the metadata had been removed, ordered the defendant to show cause why
it should not be sanctioned for disobeying the discovery order. Among other reasons the
defendant's lawyers offered for the scrubbing was that the “metadata may reveal information
extracted from a document, such as the items redacted by Defendant's counsel, as well as other
protected or privileged matters.” The court held, however, that because the defendant's lawyers
had failed to invoke any privilege objection to the production of the information, any applicable
privilege had been waived.
As to the question whether a party has an obligation generally to supply metadata in the
production of electronic documents, the court declared “that when a party is ordered to produce
electronic documents as they are maintained in the ordinary course of business, the producing
party should produce the electronic documents with their metadata intact, unless that party timely
objects to production of metadata, the parties agree that the metadata should not be produced, or
the producing party requests a protective order.”
C. Cloud-based Document Retention and Sharing
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Several authorities have held that it is proper to allow third persons outside the lawyer-
client relationship to create and/or store electronic versions of client files if the information is
protected from further disclosure.
In handling client files and records—whether in paper or electronic format—lawyers
must take reasonable measures to ensure that client confidentiality is not breached. See,
e.g., Statewide Grievance Comm. v. Paige, 2004 WL 1833462 (Conn. Super. Ct. 2004)
(unpublished) (lawyer customarily reused paper containing confidential client information as
scrap, allowing others to have access to client information in violation of Rule 1.6).
Document Storage. May a lawyer require, as a condition of the representation, that the client’s
file be kept in electronic format? Yes, as long as the client’s interests are not prejudiced by such
a condition of representation. Virginia LEO 1818. Remember e-mails and other electronic
documents are all part of the client’s file.
Document Destruction. In determining what to destroy or retain in a client’s file, the attorney
should be mindful of the Legal Ethics Committee’s recommendations in LEO 1305 that before
destroying a client’s paper file the lawyer should review that file to make sure that any
documents that may be of continued use or benefit to the client only if they are maintained in
paper form not destroyed.
The lawyer has a duty to inform or notify the client regarding destruction of the file or
client property, as per Rule 1.4. Additionally, the lawyer has a duty to maintain client
confidences while storing or disposing of client files or property as per Rule 1.6. Best form is to
have provisions in your engagement/fee agreement outlining the firm’s file retention policies as
to length of time and parameters of file storage.
Technical Support Providers. ABA Formal Ethics Op. 95-398 (1995) (lawyer considering
giving computer service provider access to client files must ensure that provider has or will
establish “reasonable procedures to protect the confidentiality” and that it “fully understands its
obligations in this regard”).
As to Google docs in particular, Massachusetts has issued an opinion that states:
“Applying its conclusions to Google docs, Lawyer's proposed Internet based data storage
solution, the Committee observes that Google has adopted written terms of service and a privacy
policy for users of Google docs (see generallyhttp://www.google.com/google-d-s/terms.html)
that reference and incorporate various other Google policies. Among other things, Google
represents that data stored on Google docs is "private" and "password protected," but can be
voluntarily shared by the user with others or published to the World Wide Web. The Committee
further observes that Google docs and other Internet based storage solutions, like many, if not
most, remotely accessible software systems and computer networks, are not immune from attack
by unauthorized persons or other forms of security breaches.” Massachusetts Opinion 12-03(5-
17-12).