May 26, 2017

Who Is My Client? And Other Thorny Issues Faced by Government Attorneys

(Grand Ballroom A/B/C, 4th Floor)

Friday, June 2 
(10:40am - 12:00pm)

Moderator:  Stacy Ludwig
Panelists:    Kathleen Clark, John M. Fietkiewicz, Thomas B. Mason
                      Patricia Weiss

A majority of the rules of professional conduct were drafted primarily from the vantage point of attorneys in the private sector.  This program will explore how the rules apply to government attorneys in different contexts and discuss some of the unique issues and challenges facing government attorneys such as

  • Identifying the Client:  When representing a government entity, who is the client?  Model Rule 1.13 states that the client is the organization, but which “organization” is the client?  For example, for a government lawyer who works for a state agency, is her client the agency?  The Executive Branch? Or does a government lawyer represent the people? 
  • Who speaks for the government client, i.e., who exercises the usual authority of a client?  Related to this question, do government lawyers have a duty of confidentiality to their client?  Do they have a duty of loyalty? If so, who may consent to a government lawyer’s representation notwithstanding a conflict of interest?  Who may consent to the disclosure of confidential information?
Application of the rules of professional conduct in the law enforcement context such as some states’ adoption of Model Rule 3.8(g) and (h) governing post-conviction disclosure obligations, the split in authority regarding whether prosecutor’s disclosure obligations should be the same as or broader than the requirements under substantive law, and the recent amendment to New Jersey Rule 4.4 to take into account law enforcement interests. 

Materials

  1. ABA Model Rule 1.6
  2. ABA Model Rule 1.13
  3. Clark-Clients Confidentiality and The Client of The Govt Lawyer-Public Lawyer-Winter 2013-b
  4. Clark-Govt Ls & Confid Norms-WashULR-2007
  5. Clark-Lawyers Confid Open Govt Laws & Wg-PubL-Summer 2013

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