Freivogel on Conflicts

Government Entities -
Representing One Part - Suing Another Part

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Many lawyers face this one:  They represent parts of a state government on some things, and private clients ask them to oppose other parts of that same government on unrelated matters.  The following decisions support the view that such representations are not conflicts: Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276 (S.D.N.Y. 2001); Wheeler v. Siegelman, 2007 Ala. LEXIS 86 (Ala. May 18, 2007) (strongly implied); Gray v. Rhode Island Dept. of Children, Youth and Families, 937 F. Supp. 153 (D.R.I. 1996); People v. Crawford Distributing Co., Inc., 382 N.E.2d 1223 (Ill. App. 1978); Aerojet Properties, Inc. v. State of New York, 530 N.Y.S.2d 624 (N.Y. App. 1988); Wootan & Saunders, P.C. v. Diaz, 2018 WL 1517030 (La. App. March 28, 2018); Spruce Grove Gun Club v. Parkland County, 2018 ABQB 364 (CanLII) (Ct. Q.B. Alb. May 4, 2018).  In an unreported decision a Minnesota trial judge refused to disqualify law firms for tobacco companies in a suit by the state, even though they represented state agencies in non-tobacco matters, State of Minnesota v. Philip Morris, Inc. (2d Jud. Dist., Ramsey Co., Minn. 1994) (to see relevant portion of opinion, click here).

        To the same effect, see ABA Op. 97-405 (1997), Cal. Op. 2001-156 (undated) (lawyer employed by government), D.C. Bar Op. 268 (1996) (waiver required), Mass. Op.94-9 (1994) (favors "case-by-case" approach), Ore. Op. 2005-122 (2005) (with waiver), and In re Sup. Ct. Advisory Committee on Prof. Ethics Op. No. 697, 911 A.2d 51 (N.J. 2006).  The ABA opinion used a large county government as the example, but the result would surely be the same for a state government.  N.Y. City Op. 1999-06 (1999) in a slightly different context agreed with the result in Aerojet, above.  Ore. Op. 1991-122 disagrees with the above authorities.

        Another California authority touching on these issues is Civil Serv. Comm'n v. Superior Court, 163 Cal. App. 3d 71 (Cal. App. 4th Dist. 1984).

       In re Sup. Ct. Advisory Committee on Prof. Ethics Op. No. 697, 911 A.2d 51 (N.J. 2006).  In this opinion the New Jersey Supreme Court “reversed” N.J. Op. 697 (Aug. 2005), stating:

We specifically hold that if an attorney plenarily represents a municipal governing body, that attorney will be barred from representing private clients before that governmental entity's governing body and all of its subsidiary boards and agencies, including its courts. If, however, an attorney plenarily represents an agency subsidiary to the governmental entity's governing body, that attorney will be barred from representing private clients before that subsidiary agency only. Finally, if the scope of an attorney's engagement by a governmental entity is limited and not plenary, that attorney and his or her law firm are exempt from the strictures of the now-circumscribed "municipal family doctrine," but, in any event, the scope of the engagement remains relevant in determining whether the proscriptions of R.P.C. 1.8(k) have been followed.

        Cmt. [9] to Model Rule 1.13 discusses representation of governmental entities, but no hard-edged rule emerges regarding when a law firm can represent one agency and be opposed to another.

        Both the ABA and D.C. Bar opinions noted this language but refused to apply such a rule in the above context.  Moreover, Rule 1.13(h) of the Washington Rules of Professional Conduct specifically provides that without other agreement, the agency involved, not the broader governmental body, is the client.  The Illinois State Bar Association Op. 95-5 (1995), in the context of city agencies, holds that there is no distinction between the city and its agencies.  In 1995 the Illinois Rules did not have comments.  Illinois Rule 1.13 now has Comment [9], which appears to be the same, or nearly the same, as Comment [9] to Model Rule 1.13.

        In the Brown & Williamson decision the court noted two New York district court cases that held a law firm could not represent a government and simultaneously oppose it in another matter, British Airways v. Port Authority, 862 F. Supp. 889 (E.D.N.Y. 1994), and Guthrie Aircraft, Inc. v. Genesee County, New York, 597 F. Supp 1097 (W.D.N.Y. 1984).  The court distinguished the cases in a footnote by stating:

These cases, however, involved the problem of common witnesses and the risk that information gained in the representation of the government could be used to the disadvantage of the government in the adverse representation. In British Airways, the court found that the Port Authority routinely gave the law firm confidential documents and that the firm had prepared Port Authority witnesses for depositions, whose depositions would possibly be taken in the current action against the Port Authority. Guthrie also involved a common witness in the two representations. In one case, the firm defended the deposition of the Superintendent of Highways, while in the other case he was to be adversely deposed by the same firm.

        Culbreth v. Covington Bd. of Educ., 2007 U.S. Dist. LEXIS 78781 (E.D. Ky. Oct. 24, 2007).  Lawyer represents Teacher in this case against School Board, claiming Teacher was demoted without due process.  Lawyer also, in another case, represents School Board Member in a suit brought by State challenging Member’s eligibility to serve on the School Board.  Because of the latter representation, School Board moved to disqualify Lawyer in this case.  In this opinion the court denied the motion.  First, the court held that, in this case, Lawyer was not adverse to Member, just to School Board as an entity.  The court then held that the relationship between the two cases was “tenuous.”  The court also noted the unlikelihood that Lawyer would learn confidences from one case that would be relevant to the other.

        City-County Taxi, Inc. v. Metropolitan Taxicab Comm'n, 2013 U.S. Dist. LEXIS 63322 (E.D. Mo. May 3, 2013).  Plaintiff, a taxicab company, sued the commission that presumably regulates it.  Certain members of the commission are engaged in the taxicab business.  Plaintiff moved to disqualify the law firm representing the commission.  In this very brief opinion the court denied the motion, primarily because the law firm had never represented Plaintiff.  [Note: neither the bases for the motion nor the extent of the law firm's activities are clear from the opinion.]

        Ill. Op. 01-07 (April 2002).  The opinion holds that one lawyer in a firm may act as City Attorney for a city while another lawyer in the firm may act as lawyer for a park district, which is located within the city - as long as the two governmental units are not adverse to one another.

        Synthes USA HQ, Inc. v. Commonwealth of Pa., 2023 WL 2145670 (Pa. Feb. 22, 2023). The Pennsylvania Supreme Court held that under the Pennsylvania Constitution and Pennsylvania statutory law the Attorney General could take a position adverse to a tax law interpretation of the Department of Revenue.

        Waiver.  Presumably, obtaining the waiver of the governmental unit would remove any doubt about the appropriateness of the representation.  That was the view of the Illinois State Bar Association in the above-cited opinion.  At least one state's rules specifically prohibit such waivers: New Jersey Rules of Professional Conduct 1.7(a)(2) and 1.7(b)(2).

        R.I. Op. 2003-6 (Sept. 11, 2003).  This opinion holds that a lawyer who represents clients before a municipality’s zoning and planning boards may not, without the consent of the municipality and his private clients, represent the municipality in land-use litigation. 

        Canada.  In R. v. Neil, [2002] 3 S.C.R. 631, at ¶ 28 (Can.), in dictum, the Supreme Court of Canada suggested that governments may impliedly consent to such representations.    

        Canada v. Hernandez, 193 F. Supp. 2d 409 (D.P.R. March 21, 2002).  Plaintiffs are former employees of the Puerto Rican Department of Education, one of the defendants.  Their law firm represented the Department under a prior administration, and continued on pending cases several months into the current administration.  The defendants moved to disqualify the plaintiffs' law firm.  The court denied the motion, because the defendants did not make a showing as to what information the law firm might have gotten during is earlier representation of the Department.

        Can Sue Mayor on Personal Matter even though Representing the Town.  Connors v. Patten, 2008 NLTD 11 (CanLII) (S. Ct. Newfoundland & Labrador Jan. 28, 2008).  Law Firm represents the plaintiff in this defamation case.  The defendant is mayor of Town.  Law Firm has represented Town for many years.  The defendant moved to disqualify Law Firm, and, in this opinion, the court denied the motion.  While the defendant’s alleged defamation dealt with a municipal election, the court held that Law Firm did not represent the defendant on personal matters, which this was.

        Representing City and City Board of Zoning Appeals is Representing One Client.  Friedman v. Bhalala, 2013 Ill. App. Unpub. LEXIS 1251 (Ill. App. June 7, 2013).

        Township Counsel Cannot Sue Township Officials on other Matters. Armano v. Martin, 2016 WL 184418 (D.N.J. Jan. 15, 2016). Plaintiff was chief lawyer for Township. Lawyer was in a two-lawyer firm (“Firm”). Firm sued a number of persons arising out of an election dispute. Two of those persons were Township Council members. After a hearing Plaintiff was terminated as counsel for Township. In this case Plaintiff sued members of the Township Council essentially for unlawful termination. In this opinion the court granted summary judgment for the defendants. The court held that whether or not the election lawsuit constituted violation of the N.J. Rules of Professional Conduct, Plaintiff’s termination was justified. Briefly, the Township Council’s action was understandably due to “the lack of trust and confidence” created by Firm’s bringing the election action.

        Louisville/Jefferson County Metro Gov't v. Ackerson, No. 16-CI-002518 (Ky. App. April 24, 2020). A and Y are lawyers who sit on Metro's Council. M and J were two Metro employees who were seriously injured when their ambulance collided with a vehicle owned by Standard company. A and Y brought personal injury cases against Standard on behalf of M and J. Standard had only a liability policy of $1 million, which amount was promptly tendered into court. Metro had substantial subrogation claims against Standard, far exceeding $1 million, for both workers' compensation payments and damage to the ambulance. Metro moved to disqualify A and Y because they might have been competing with Metro for a piece of that $1 million. For reasons too complicated to discuss here, the subrogation claims went away. The trial court denied the motion to disqualify. In this opinion, the appellate court affirmed. The court was careful to say it was not approving a government council member "pursuing a direct claim" against that government.

        Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004)  A lawyer (Joe) was the member of the city council.  His partner represented a local real estate developer.  Joe sponsored an ordinance that imposed a moratorium on apartment development.  Because of the moratorium the developer was unable to develop some of his property as he wished.  He sued Joe and his law firm.  The trial court granted summary judgment.  The appellate court reversed, essentially calling this a conflict of interest.  Among other things the court said more should have been disclosed to the developer so that he could have adopted a strategy to avoid the effects of the moratorium.  In this opinion the Texas Supreme Court reversed the appellate court, holding, in part, that telling the developer about the council proceedings was not within the firm's scope of representation.  The court also made rulings about legislative immunity under Texas law. 

        Treatise.  Rotunda & Dzienkowski § 1.13-7.

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