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The Ethics of Civil Rights Litigation

Calon RussellNellie Q. Barnard

Today’s Program

– Conflicts of interest

• Current client conflicts

• Personal Interest Conflicts

– Depositions of government employees

– Name clearing hearings

Current Client Conflicts of Interest

RPC 1.7» “a lawyer shall not represent a client if the representation involves

a current conflict of interest” which occurs when – (1) the representation of one client will be directly adverse to another client;

– (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer

Conflicts of Interest – a hypothetical» Linda Lawyer has represented the Portland Police Bureau as

outside counsel in a number of different cases. Carry Counsel, with the Portland City Attorney’s office, asked Linda to represent the PPB and Oliver Officer named in complaint alleging that Patrick Plaintiff’s First and Fifth Amendment rights to speech and liberty were violated when Patrick was arrested during a protest against the planned shearing of Shrek the Sheep.

» Can Linda represent the officer and the PPB in defending the case?

» Can Carry give advice to the officer?

» Are waivers are required?

» Would the answer(s) change if Oliver had been off duty during the incident?

» How should Patrick address concerns about this kind of representation as the case moves forward?

Personal Interest Conflicts» Now you represent Patrick Plaintiff.

» The PPB offers to settle by issuing a public apology to Patrick and allowing him to lead an anti-shearing parade through town. The one caveat is that the offer is conditioned on the waiver of any attorney fee claim. Patrick is ecstatic about the offer, but you are obviously not thrilled about the prospect of losing fees.– Do you have a personal interest conflict?

– How do you advise Patrick with respect to accepting/rejecting the offer?

– Is there anything you can put in your engagement agreement to protect yourself against this situation.

Depositions of Government Employees» Suppose the PPB won’t consent to Linda’s representation of

Officer Oliver for the case, but Oliver has declined to obtain representation. Patrick Plaintiff’s lawyer has noticed Oliver’s deposition. Linda meets with Oliver to prepare him for the deposition.

» Is preparing Oliver for the deposition within the scope of Linda’s representation of PPB?

» Is Linda obligated to give Oliver any kind of warning or notice before she begins preparing him?

Depositions of Government Employees» Initially, the preparation seems to be going well. Oliver is

recounting the events leading up to Patrick’s arrest consistently with his police report. Then…Oliver shows Linda a picture of himself with Shrek the Sheep.

» Oliver explains that he researched Shrek after arresting Patrick for protesting the shearing. He went on a pilgrimage to meet Shrek, and now deeply regrets arresting Patrick. Oliver plans to testify in his deposition that he was ordered by his commanding officer to arrest “all those damn sheep-lovers” whether he had probable cause or not.

Depositions of Government Employees

» Sensing that Oliver will not testify favorable at the deposition, Linda starts considering her options for dealing with Oliver.

» What are her options?

» What does she need to do to stay on the right side of the RPCs?

Ethics in Name Clearing Hearings» Officer Oliver finally decides to lawyer up after the Portland Police

Bureau places him on administrative leave and begins to investigate his statements to Linda Lawyer. He hires Attorney Angela. The PPB has taken the position in the press that Oliver has a vendetta against his commanding officer. Before hearing Oliver’s side of the story, Angela suggests that Oliver request a name clearing hearing.

» After the name-clearing-hearing request, but before PPB has responded to the request, Oliver discloses that he does not, in fact, love Shrek (he’s allergic to wool), and he actually does have a vendetta against his commanding officer.

Ethics in Name Clearing Hearings

» What is Linda’s obligation to PPB in light of Oliver’s disclosure?

» What is Linda’s obligation to Oliver?

» Do Linda’s obligations change if Oliver makes his disclosure after the PPB has already agreed to a name-clearing-hearing?

» Do Linda’s obligations change if Oliver makes his disclosure after the PPB has denied Oliver a name-clearing-hearing?

Questions?

Thank you!

Nellie Q. BarnardHolland & Knight LLP111 S.W. Fifth Avenue, Ste 2300Portland, Oregon 97204Nellie.Barnard@hklaw.com503.243.5892

Calon RussellHolland & Knight LLP111 S.W. Fifth Avenue, Ste 2300Portland, Oregon 97204Calon.Russell@hklaw.com503.243.5866