Guiding Light or Dark Side of the Force?
Questions and Answers for Alaska Bar Government Lawyer Ethics CLE
by Peter R. Jarvis **
1. Are government lawyers different from private practice lawyers when it comes to speaking with the media? When it comes to ethical standards more generally?
Other than ARPC 3.8, which applies only to prosecutors, and ARPC 1.11, which applies to former government lawyers, the same rules?including the same pretrial publicity rule, which is ARPC 3.6?apply to government and private lawyers. This is reflected in the better-reasoned decisions, which hold that the same standards should be applied in the same ways to government and private lawyers. See, e.g., Lybbert v. Grant County, 141 Wash 2d 29, 1 P3d 1124 (2000). (For a discussion of the pretrial publicity rule itself, see the answer to question 14 of "Cash, Confidentiality and Caring.")
On the other hand, some judges and some members of the public do at least say that they will hold government lawyers to a higher standard because of their duty to the public. Because of this, and because government clients can reasonably choose to take a broader and somewhat different view of what is appropriate than can private lawyers for private clients, there will be times when it is appropriate for government lawyers to take a different or somewhat more conservative approach than private lawyers might take.
2. You negotiated a matter for Agency X that now appears likely to head into litigation. Under what circumstances, if any, may you or other members of your office try the case? Under what circumstances, if any, may you assert attorney client privilege if your deposition is taken?
Alaska’s attorney-witness rule is ARPC 3.7. Pursuant to ARPC 3.7(a), subject only to certain limited exceptions, a lawyer may not try a case in which the lawyer "is likely to be a necessary witness." On the other hand, the fact that one lawyer in a "firm" will be a witness does not stop another lawyer in the same firm from trying the case unless the current or former client conflicts rules contained in ARPC 1.7 and ARPC 1.9 apply. Alaska’s rule is thus different in part from the rules in a number of other states. See, e.g., Oregon DR 5-102; Washington RPC 3.7.
For an Alaska case decided under prior law that holds that the attorney-witness rule does not prevent a lawyer from representing the lawyer’s own partner in litigation, see Eufemio v. Kodiak Island Hosp., 837 P2d 95, 104 (Alaska 1992).
With regard to attorney-client privilege, there is no reason why government clients cannot make a claim of privilege. See, e.g., Comment to ARPC 1.13. The mere fact that an attorney will be testifying does not automatically waive privilege. On the other hand, privilege will be waived if, for example, the government makes an advice-of-counsel argument or otherwise places privileged communications at issue. See, generally Restatement (Third) of the Law Governing Lawyers §§ 78-80 (2000).
3. While you are assigned to work for Agency X, you learn from the executive director of that agency that he or she plans to do something that you believe to be unwise or illegal. Under what circumstances, if any, may you inform other attorneys or nonattorneys about your concerns?
The "who is the client" question can perplex government lawyers just as it sometimes perplexes private lawyers. Under ARPC 1.13, an attorney who is employed by a state or local government agency generally has as a client the state or local government entity as a whole. Thus an assistant attorney general assigned to work with Agency X would typically represent the state as a whole and not just Agency X. On the other hand, one could certainly argue that an attorney who is hired by Agency X to represent only Agency X and who is not a member of the attorney general’s office would have only Agency X as a client.
If a particular attorney represents not only a particular governmental agency but also the governmental unit, such as a city or a state, of which that agency is a part, it follows that there is no waiver of attorney-client privilege from communicating what the attorney has learned to another attorney in the same governmental unit. Even if it is only the particular agency that is the attorney’s client, however, ARPC 1.6(b)(1) would still allow the attorney to reveal client confidences or secrets to the extent the lawyer reasonably believes necessary "to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another.
4. Agency X asks you to defend it and one of its employees who are named defendants in a lawsuit. Under what circumstances, if any, do you have a conflict of interest? If so, what, if anything, can or should you do about it?
ARPC 1.7 contains Alaska’s current client conflicts rules. Whether a conflict exists at all and whether, if a conflict does exist, it is waivable or nonwaivable is a fact-specific question. It may be the case, for example, that the interest and positions of Agency X and of the employee are entirely aligned as a matter of fact and law. If so, there may be no conflict whatsoever and therefore no need for a conflicts waiver. Even in circumstances where no conflict appears to exist, however, it is clearly better practice to obtain waivers whenever multiple defendants are to be represented. If nothing else, this protects the lawyer against a subsequent claim that there was a conflict all along. The conflicts-waiver process may also help to smoke out any reservations about joint representation that either client may have.
The outer boundary?the line between waivable and nonwaivable conflicts?is also not entirely clear. If, however, it should be the case that Agency X is pursuing a cross-claim against an employee or that Agency X can shift liability from itself to the employee (or vice versa), the conflict would not be waivable. Cf. Dunton v. County of Suffolk, 729 F2d 903 (2d Cir 1984). The same could be true even if the ultimate legal positions of Agency X and the employee were the same but there were substantial differences in recollection of fact between the employee and other representatives of Agency X.
For a further discussion of conflicts waivers and conflicts-waiver letters, see the answer to question 2 of "Cash, Confidentiality and Caring."
5. You learn that opposing counsel has orchestrated direct contacts with the head of the government agency you represent, so you call in a fit of pique to demand that all contacts be made through you. Opposing counsel responds that he or she and his or her client have a constitutional right with which you cannot interfere to petition the government for redress of grievances. Who wins?
The question here is one of communications with represented parties. Pursuant to ARPC 4.2, a lawyer cannot communicate with a represented person or entity unless the lawyer has the permission of opposing counsel to do so or the communication is permitted by law.
The Comment to ARPC 4.2 states in part that "[c]ommunications authorized by law include * * * the right of a party to a controversy with a government agency to speak with government officials about the matter." While this may help a lawyer who is also a party to communicate with government officials, the comment does not expressly state that a lawyer for a party has unrestricted access to the government. It may well be, for example, that a lawyer for a party opposing the government may speak to elected government representatives or others empowered to act, but not to those directly involved in particular litigations. See, e.g., ABA Formal Ethics Op No. 97-408.
6. More generally, when can you keep private lawyers from speaking to government representatives or employees, and when can private lawyers keep you from speaking to present or former officers or employees of a private entity?
The conclusion that opposing counsel cannot talk to all government representatives does not mean that opposing counsel cannot talk to any government representatives. (The same is true for private parties.) The Comment to ARPC 4.2 provides in part that
"[i]n the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent of that counsel to a communication will be sufficient for purposes of this Rule."
By omission, this language suggests that nonmanagerial individuals for whose conduct the entity is sought to be held vicariously responsible (e.g., the truck driver who runs through a red light and injures a plaintiff) may not be off limits in Alaska. But cf. OSB Legal Ethics Op No. 1991-80; ABA Formal Ethics Op No. 95-396. At present, there appears to be no Alaska case law either way on this subject.
7. Under what circumstances, if any, must you turn in another attorney to the Bar?
Alaska’s "squeal rule" is ARPC 8.3. A lawyer is obligated to turn in another lawyer only if the lawyer knows (i.e., does not merely suspect or think it likely) from information not protected by ARPC 1.6 that the other lawyer has engaged in conduct that creates a substantial question as to the lawyer’s fitness to practice law. Thus knowledge that the other lawyer had defrauded others or suborned perjury would require reporting, whereas knowledge of a technical conflict of interest would not. See, e.g., OSB Legal Ethics Op No. 1991-95.
**Peter Jarvis: B.A., Harvard University (1972); M.A. (economics), J.D., Yale University (1976); member of the Oregon State Bar since 1976 and the Washington State Bar since 1981; partner, Stoel Rives LLP, Portland; former member, Oregon State Bar Legal Ethics Committee, Washington State Bar Rules of Professional Conduct Committee. Mr. Jarvis is chair of the Stoel Rives Professional Responsibility practice group. He is a frequent writer and speaker on legal ethics issues, and his practice includes advising attorneys with legal ethics questions and defending attorneys accused of legal ethics violations. Mr. Jarvis is a member of the American Law Institute and is also 2000-2002 chair of the ABA Center for Professional Responsibility Conference Planning Committee. In 1993, Mr. Jarvis received the Harrison Tweed Special Merit Award from ALI-ABA for his ethics CLE work.
Caveat: Mr. Jarvis is not yet (though he hopes soon to be) a member of the Alaska Bar. In addition, these answers are solely his opinions and are not binding on the Alaska Bar.