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Formal Ethics Opinion 97-405 |
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Conflicts in Representing Government Entities
A lawyer who is engaged to represent a government entity, whether on a full-time or part-time basis, may not agree simultaneously to represent a private party against her own government client, absent the informed consent of both clients. See Model Rule 1.7(a). However, the lawyer may represent a private client against another government entity in the same jurisdiction in an unrelated matter, as long as the two government entities are not considered the same client, and as long as the requirements of Model Rule 1.7(b) are satisfied.
The identity of the government client for conflict of interest purposes, like that of any other organizational client, will be established in the first instance between the lawyer and government officials who are authorized to speak for the government client, in accordance with the general precepts of client autonomy set forth in Model Rule 1.2. The lawyer may not, by agreeing to a narrow definition of the government client, seek to defeat the reasonable expectation of her other clients that they will get a conflict-free representation from their lawyer.
In the absence of an express agreement, the identity of the government client may be inferred from the reasonable understandings and expectations of the lawyer and responsible government officials, taking into account such functional considerations as how the government client presented to the lawyer is legally defined and funded, whether it has independent legal authority with respect to the matter for which the lawyer has been retained -- e.g., contracting, litigating, or settling a claim -- and the extent to which the matter involved in the proposed representation has general importance for other government components in the jurisdiction. Uncertainty in identifying the government client should be resolved in favor of disclosure -- disclosure of the government representation to any private clients the lawyer may be representing against the government, and disclosure to the government client of any arguably conflicting private representations.
Even if two representations involving government entities are not "directly adverse," because the two government entities involved are not considered the same client for conflict of interest purposes, under Rule 1.7(b) the lawyer must satisfy herself that her responsibilities to one client will not be "materially limited" by her responsibilities to the other. Whether or not the lawyer's representation of a government client in one matter may be "materially limited" by her 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 her 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 in it, and the intensity and duration of her relationship with the lawyers she is opposing. There may be situations in which a lawyer's representation of the government on an important issue of public policy so identifies her with an official public position that she would be effectively compromised in her ability convincingly to oppose any part of the government on behalf of a private client, even in an entirely unrelated matter.
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