RULE 1.18 GOVERNMENTAL ENTITY AS THE CLIENT
Effective Date: 3/1/1997
Obsolete Date: 8/1/2006
(a) A lawyer employed or retained to represent a governmental entity represents the governmental entity as distinct from its officials or employees.
(b) In dealing with a governmental entity's officials or employees, a lawyer shall explain the identity of the client when the lawyer reasonably believes that the entity's interests are or are likely to become adverse to those of the persons with whom the lawyer is dealing.
(c) A lawyer representing a governmental entity may also represent any of its officials or employees, subject to the provisions of Rule 1.7. If the entity's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the entity other than the individual who is to be represented.
COMMENT
The Governmental Entity as the Client
In general, the Rules of Professional Conduct apply to a lawyer representing a governmental entity in the same manner as they apply to a lawyer for a private client. In the government context, however, defining precisely the identity of the client and prescribing the resulting obligations of the lawyer may be more difficult. The duties of lawyers employed by the government or lawyers in military service may be defined by statute or regulation. Although in some circumstances the client may be a specific agency, it is generally the government as a whole.
In a matter involving the conduct of a government official, a government lawyer may have more extensive authority to question the official's conduct than would a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. In addition, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that a wrongful official act is prevented or rectified, for public business is involved.
Client-Lawyer Relationship
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 a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. This 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. They also may have authority to represent the "public interest" in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate this authority.
Clarifying the Lawyer's Role
There are times when the governmental entity's interests may be or become adverse to those of one or more of its officials or employees. In these circumstances the lawyer should advise any official or employee, whose interest the lawyer reasonably believes is or is likely to become adverse to that of the governmental entity, of the conflict or potential conflict of interest, that the lawyer cannot represent the official or employee, and that the official or employee may wish to obtain independent representation. Care must be taken to assure that the official or employee understands that, when there is an adversity of interest, the lawyer for the governmental entity cannot provide legal representation for the official or employee, and that discussions between the lawyer for the governmental entity and the official or employee may not be privileged. Whether and when this warning should be given by the lawyer may turn on the facts of each case.
Dual Representation
Paragraph (c) recognizes that a lawyer for a governmental entity may also represent an official or employee. Rule 1.7 may require consent to the dual representation, and this consent may be given by an appropriate official of the entity but not by the person who is to be represented.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85, 01/31/86 and 03/15/86; Minutes of the Joint Committee on Attorney Standards Meetings of 09/15/95, 12/01/95, 06/11/96.