Critical Legal Ethics Issues for Government Lawyers Legal Ethics Issues for Government Lawyers ......

Critical Legal Ethics Issues for Critical Legal Ethics Issues for Government Lawyers

2011 APTA Legal Affairs Seminar

Jon Givner, San Francisco City Attorney’s Office

February 22 2011February 22, 2011

Legal Ethics for Government LLawyers

1. Basic principles and resources

2. Who is your client?

3. Duty to serve the public interest

S f l4. Screens for government lawyers


L l Ethi R lGovernment Ethics

Legal Ethics RulesLaws


Basic Principles:

Loyalty to the client (whoever that is)

Loyalty to the publicLoyalty to the public

Do not self-deal

Fairness and candor


American Bar Association Model Rules of Professional Conduct

Non-binding recommendationsAdopted in 1983, replacing the ABA Model Code of p , p gProfessional Responsibility48 states have adopted ABA Rules in whole or in 48 states have adopted ABA Rules in whole or in partCalifornia and Maine have distinct rulesCalifornia and Maine have distinct rules

Legal Ethics ResourcesLegal Ethics Resources

ABA Model Rules of Professional Conduct: htt // b t / / / t ht lhttp://www.abanet.org/cpr/mrpc/mrpc_toc.html

Cornell University Law School web site: http://www.law.cornell.edu/ethics/

Legal Ethics Resources in gCalifornia

State Bar ethics hotline (800-238-4427) and web page (http://www.calbar.ca.gov/ethics)

Rules of Professional Conduct: http://rules.calbar.ca.gov/Rules/RulesofProfessionalCop gnduct.aspx

Relevant State Bar Act provisions: Relevant State Bar Act provisions: http://rules.calbar.ca.gov/SelectedLegalAuthority/TheStateBarAct aspxtateBarAct.aspx

Legal Ethics for Government Legal Ethics for Government Lawyers

DUTY OF LOYALTY(Loyalty to whom?)

DUTY OF CONFIDENTIALITY(Confidentiality for whom?)( y )

Government Lawyers: Who Is the Cli t?Client?

The public?

The legislative body or commission?g y

The chief executive (e.g., the Governor)?

The agency director?The agency director?

The agency staff?

What if the lawyer represents multiple agencies or individual employees or officers?


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ABA Model Rule 1.13:“A lawyer employed or retained by an organization represents the organization acting through its duly p g g g yauthorized constituents.”

Government Lawyers: Who Is the Client?

California Rule of Professional Conduct 3 6003-600

The client is “the organization itself, acting h h h h h d ff l through its highest authorized officer, employee,

body, or constituent overseeing the particular ”engagement.”


Government lawyers are similar to corporate counsel.D l B l 140 Mi 2d 177 531 N Y S 2d 161 (N Y Dooley v. Boyle, 140 Misc. 2d 177, 531 N.Y.S.2d 161 (N.Y. Supreme Ct., 1988)Federal Bar Association Professional Ethics Committee The Federal Bar Association Professional Ethics Committee, The Government Client And Confidentiality, Opinion 73-1, 32 F.B.A.J. 71 (1973). J ( )Model Rule 1.13


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What to do when client interests diverge?Single Client Rule: Cal. Eth. Op. 2001-156, 2001 WL g34029610 (Cal. St. Bar. Comm. Prof. Resp.)

Multiple Client Situation: Civil Service Commission v. pSuperior Court, 163 Cal.App.3d 70 (1984)


Confidential communications can one branch Confidential communications – can one branch of an agency seek advice given to another branch?branch?

Yes. Government attorneys work for a single client. That client holds the privilegeThat client holds the privilege.As a client relations policy, an attorney may decline to share information when it’s not necessaryshare information when it s not necessary


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Handling the renegade client:

ABA Model Rule 1 13:ABA Model Rule 1.13:Move up the chain.In extreme circumstances the lawyer may breach In extreme circumstances, the lawyer may breach confidentiality

CRPC 3-600:CRPC 3 600:Move up the chain.Lawyer may resign but must not violate his or her duty Lawyer may resign, but must not violate his or her duty confidentiality.


C ABA M d l R l 1 13Comment to ABA Model Rule 1.13:

[W]h h li i l i i [W]hen the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. .

Government Lawyers: Who Is the Client?the Client?

Talking to individual employees or officersExplain that the client is the agencyExplain that the client is the agencyGive a warning regarding confidentiality & privilegeDi l i d t di b t t ttDispel any misunderstanding about separate attorney-client relationship


ABA Model Rule 1.113(f) & Cal. Rule of Prof. Conduct 3-360(D):

In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a l h ll l h d f h l h hlawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the organization s interests are adverse to those of the constituents with whom the lawyer is dealing.


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Duties of a Public LawyerDuties of a Public LawyerDo government attorneys have a special duty to Do government attorneys have a special duty to consider the public interest?

If so how do we figure out what the public If so, how do we figure out what the public interest is?

Wh t ifi bli ti l t What specific obligations may apply to government attorneys?

Duties of a Public LawyerDuties of a Public LawyerIs there a duty to uphold the public interest?y

Model Code of Professional Responsibility, Ethical Consideration 7-14 (“The United States wins its point

h j i i d i i i i h ”)whenever justice is done its citizens in the courts.”)ABA Formal Opinion 94-387 (1994)Reid v I N S 949 F 2d 287 (9th Cir 1991) (“Counsel for Reid v. I.N.S. 949 F.2d 287 (9th Cir. 1991) ( Counsel for the government has an interest only in the law being observed, not in victory or defeat in any particular litigation.”)

Duties of a Public LawyerDuties of a Public LawyerGreater obligation to comply with discovery g y yorders?

United States v. Sumitomo Marine & Fire Ins. Co. Ltd., 617 F.2d 1365 (9th Cir. 1980)

Duties of a Public LawyerDuties of a Public LawyerGreater duty of candor to the Court?y

Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992), ( )

Duties of a Public LawyerDuties of a Public LawyerGreater duty of candor to the jury?y y

City of Los Angeles v. Decker, 18 Cal.3d 860 (1977)( )


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Government Lawyers: Screens

1. Ethical screens for attorneys coming from private practicepractice

2. Ethical screens for concurrent representation of multiple clients

3 Due process screens3. Due process screens

Ethical ScreensEthical ScreensConcurrent conflicts (Model Rule 1 7 & Concurrent conflicts (Model Rule 1.7 &

Cal. Rule of Prof. Conduct 3-310(C)):

Without informed written consent, t tt t i lt l government attorney may not simultaneously

represent conflicting parties.

Ethical ScreensEthical ScreensFormer clients (Model Rule 1.9; Cal. Rule of Former clients (Model Rule 1.9; Cal. Rule of

Prof. Conduct 3-310(E)):

Attorney may not represent new client adverse to former client if two matters are “substantially to former client if two matters are substantially related”

Ethical ScreensEthical ScreensVicarious DisqualificationVicarious Disqualification

Under ABA Model Rules, no vicarious disqualification of government law office because of successive or concurrent conflicts of individual attorney.Screening is prudent

Ethical ScreensEthical ScreensPolicy rationale for not applying vicarious Policy rationale for not applying vicarious

disqualification to gov’t lawyers:

No financial incentive to favor one client over another

Special expertise of agency lawyersp p g y y

Public cost of hiring outside counsel

Duty to protect public interesty p p

Ethical ScreensEthical ScreensCity of Santa Barbara v. Superior Court, 122 Cal. y f p ,App. 4th 17 (2004)

[D]isqualification extends to the attorney's entire new law firm. [ ] q yBut a city attorney's office is not a "law firm" within the meaning of the vicarious disqualification rule. . . . [I]n an ordinary civil case, disqualification of a nonsupervisorial deputy y , q p p ycity attorney should not result in the vicarious disqualification of the entire city attorney's office. Such would deprive the city of its counsel of choice, result in an unnecessary burden on the ypublic fisc, and provide an unnecessary litigation disadvantage to the city.

Ethical ScreensEthical ScreensIn re Charlisse C., 45 Cal.4th 145 (2008) , ( )

Vicarious disqualification does not apply to public law q pp y poffice in successive representation cases, if office protects former client’s confidences “through timely, appropriate

d ff i i d/ l and effective screening measures and/or structural safeguards.”Public office bears burden to show screens effectively Public office bears burden to show screens effectively protect client

Due Process ScreensDue Process ScreensWithrow v Larkin 421 U S 35 95 S Ct 1456 43 Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)

Th bi ti f i ti ti t i l d The combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias in violation of does not create an unacceptable risk of bias in violation of federal due process.

Due Process ScreensDue Process ScreensAmerican Gen Ins Co v Federal Trade Com'n 589 American Gen. Ins. Co. v. Federal Trade Com n, 589 F.2d 462 (9th Cir. 1979):

D i l ti h i l tt f ti i Due process violation where single attorney functioning as counsel for one party in federal court and later serving as decisionmaker in administrative proceeding involving as decisionmaker in administrative proceeding involving the same parties and the same underlying issue.

Due Process ScreensDue Process ScreensHowitt v Superior Court 3 Cal App 4th 1575 Howitt v. Superior Court, 3 Cal. App. 4th 1575 (1992)

Att ti d i i t ti dj di t Attorney prosecuting an administrative adjudicatory matter must be screened from attorneys advising the decision makers in that matterdecision makers in that matter.

Due Process ScreensDue Process ScreensQuintero v City of Santa Ana 114 Cal App 4th 810 Quintero v. City of Santa Ana, 114 Cal. App. 4th 810 (2004)

G l l f d i i ki b d t General counsel for decision-making board cannot switch roles between prosecutor and advisor from one meeting to the nextmeeting to the next.

In those cases, probability of bias on the part of the decision maker is too high to be constitutionally decision maker is too high to be constitutionally tolerable

Due Process ScreensDue Process ScreensMorongo Band of Indians v. State Water Resources Control Bd., 45 Cal.4th 731 (2009)

“Procedural fairness does not mandate the dissolution of unitary agencies, but it does require some internal separation between advocates and decision makers to preserve neutrality.”

Generally, internal screen and prohibition on ex parte communications satisfies due process.

Critical Legal Ethics Issues for Government Lawyers Legal Ethics Issues for Government Lawyers ......

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