Our legal system and culture regard the attorney-client relationship with great reverence. With respect to the privileges associated with it, the attorney-client relationship is treated as being comparable to one’s relationship with his or her spouse, doctor, or religious counselor. That reverence carries with it great responsibility. Notably, a lawyer’s representation of his or her client is not created or limited by who compensates the attorney. Lawyers representing municipal entities or municipal employees are often faced with difficult ethical considerations specific to their position as a result of that very principle.
Municipal lawyers, lawyers contracted to represent municipalities, and lawyers contracted to represent municipal employees are tasked with an important role, impacting both public policy and the use of public funds. That role requires that those attorneys maintain loyalty to their ultimate clients, regardless of whomever signs their checks, even when political and economic considerations must be ignored.
Municipal lawyers are public servants, representing not only those within the organization but also the constituents within the municipality. Rule 1.13 (a) of the American Bar Association Model Rules of Professional Conduct advises that “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” That role is both important and necessary to a properly and efficiently functioning municipality. Rule 1.13(g) states, “[a] lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents.” Municipal attorneys perform this function often, not only when representing the municipality and the municipality’s interests but also when representing specific individual employees within the municipality. However, “[i]n dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” Rule 1.13 (f). Occasionally, a municipal lawyer may be faced with a circumstance where representation of a municipal employee is at odds with representation of the municipality itself. Optimally, municipalities should have checks and contingency plans for such scenarios, and a determination of these potential conflicts should be made as early as possible. When required, separate representation for these individuals should be arranged. Many municipalities have contract counsel retained to represent employees when the existence of a conflict becomes clear. Others always use outside counsel to avoid any actual or perceived conflict.
Municipal lawyers or contract attorneys representing both the municipality and municipal employees should be cognizant of Rule 1.7 of the American Bar Association Model Rules of Professional Conduct. Rule 1.7 advises that, “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” The rule states that a “concurrent conflict of interest” exists if “(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Rule 1.7 often takes effect for lawyers representing municipalities when there exists a question of indemnification of a municipal employee by the municipality. Rule 1.7 may also be applicable when the employee may have been acting either outside the scope of or against the interests of the municipality. Under either scenario, representing both the municipal employee and the municipality effectively and ethically may become difficult, and separate arrangements for representation may be necessary.
Municipal lawyers and contract attorneys representing municipal employees should also be aware of Rule 1.2, which states, in pertinent part: “a lawyer shall abide by a client’s decisions concerning the objectives of representation and [. . .] shall consult with the client as to the means by which they are to be pursued.” A pitfall that attorneys representing municipal employees often fall into is a lack of communication with the actual client (i.e., the individual employee). While the individual and the municipality may have overlapping interests, it is important for an attorney to fully explain the process, especially with respect to indemnification. Rule 1.2 advises that, “[a] lawyer shall abide by a client’s decision whether to settle a matter.” Rarely does a situation exist in which a client would be in opposition to a settlement that is indemnified, but given the misperception of a settlement as a loss or an acceptance of responsibility, it is imperative that the actual client be aware of the potential for settlement and the benefits and risks of not accepting an offer for an indemnified settlement.
Contract attorneys representing municipal employees should also be aware of Rule 2.3. Rule 2.3 (a): advises that, “[a] lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.” Often, seeking authority to settle a matter through indemnification of the municipality requires objectively briefing the municipality of the issues associated with the case. Such a process is allowable by the rules when done in the best interest of the client-employee. Rule 2.3(b) cautions however that, “[w]hen the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.” Because a contract attorney is often paid by the municipality to represent a municipal employee, this requirement may place the attorney in a precarious position; however, the rule is clear and the attorney’s role is clear: the best interest of the client, not the future renewal of a retainer contract, should be the only ethical concern.
Municipal lawyers or those representing the municipality or its employees play a necessary role in providing legal protections for our nation’s towns, cities, and counties, as well as their employees. While the ethical concerns relevant to those positions can be unique, the concerns are far from untenable. A municipal attorney, like any other attorney who knows who his or her client is and works zealously to serve that client, serves his or her role well.