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Everyday Ethical Dilemmas Faced by Government Attorneys

(and those that want to be)

Leslie A.T. Haley, Park Haley LLP

November 2016

I. How are government lawyers different? R3d § 97 cmt. b

A. Goals of the Government

1. Corporations and other private entities usually have well-defined

objectives (e.g. maximizing profit for the benefit of the shareholders

2. Government’s purposes cannot be captured in a simple formula. Goal is

broad and vague: pursue the public interest

B. Structure of Authority

1. Corporations and other private entities usually have well-defined

hierarchical structure and relatively clear lines of authority, culminating in

the CEO and ultimately the board of directors.

2. Government is much more diffuse and structured to achieve separation of

powers, checks and balances.

3. Government lawyer may possess more discretion in some situations than

lawyers representing private organizations.

C. Applicable Law

1. Governmental officials and government lawyers subject to legal

constraints not applicable to lawyers in private sector

a. Congress has passed more than 100 statutes giving particular

agencies separate litigating authority.

b. EX: 18 U.S.C. § 205 (prohibiting government employees from

representing parties in actions against the United States or District

of Columbia); 18 U.S.C. § 207 (placing restrictions on successive

government and private employment); 18 U.S.C. § 208 (financial

conflict of interest statute).

2. Government lawyer may enjoy some legal rights not available to private

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sector lawyers, e.g. protections against political retaliation

3. Confidentiality

a. On the one hand, reduced confidentiality in government generally

because so much government information is available to the public

(open meetings laws, FOIA, etc.)

b. On the other hand, for some government information there is a

heightened duty of confidentiality, e.g., national security issues;

information collected from private individuals; trade secrets

II. Government Lawyer’s Enabling Authority

A. “A first step in the analysis of the duties and obligations of a government lawyer

is a determination of the specific statutory framework that authorizes the

government lawyer to act.” NYC Op. 2004-03.

1. Litigation: litigating authority is typically given to a specific law

department

a. Federal: Department of Justice under the direction of the U.S.

Attorney General largely has a monopoly on federal litigation

(though some independent agencies have statutory authority to

litigate separately)

b. State: state attorney general

c. County: county attorney

d. City: corporation counsel

2. Agency work: government agencies are often authorized to hire and fire

their own (non-litigating) lawyers

B. “The work of most government law departments is carried out by assistants to the

statutorily-designated attorney, operating by delegation of authority in a

hierarchical structure.”

III. Who is the “Client” of the Government Lawyer?

This is a common problem when representing agencies that are within a parent

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organization, ie: the county or city. It can be very difficult to draw the line between the

organization, who is your client, and the constituents of that organization, for whom you provide

legal counsel and assistance as well.

Several models of agency representation exist. The agency may be represented by:

- The attorney general’s office,

- The commonwealth attorney’s office,

- The county attorney’s office,

- In-house counsel, or

- Private, independent contract attorneys.

In Virginia the agency is the client; not the social worker, not the public and not the child’s best

interest. Rule 1.13 deals with attorney’s representing organizations.

RULE 1.13 Organization as Client

(a) A lawyer employed or retained by an organization represents the organization acting

through its duly authorized constituents.

(d) In dealing with an organization's directors, officers, employees, members,

shareholders or other constituents, a lawyer shall explain the identity of the client when it is

apparent that the organization's interests are adverse to those of the constituents with whom the

lawyer is dealing.

Since the attorney represents the agency he must be very clear when dealing with the different

constituents of the agency that he represents the agency as a whole and not the individual

members/employees that work for the agency. As Rule 1.13 tells us, the agency acts through its

constituents, but early on the attorney must establish who he takes direction from on any given

case.

If the agency’s interests and the individual social worker’s interests diverge the lawyer has

additional duties. The lawyer’s ethical duty is to proceed in the best interest of the organization.

The lawyer should remind the social worker that they represent the agency and that the social

worker may need to seek independent counsel. Rule 1.13, Cmt. [10] states that:

[10] When the organization's interest may be or become adverse to those of one or more

of its constituents, the lawyer should advise any constituent, whose interest the lawyer finds

adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer

cannot represent such constituent, and that such person may wish to obtain independent

representation. Care must be taken to assure that the individual understands that, when there is

such adversity of interest, the lawyer for the organization cannot provide legal representation for

that constituent individual, and that discussions between the lawyer for the organization and the

individual may not be privileged.

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Suppose the agency lawyer is preparing for the upcoming permanency hearing in a case where

the social worker and the lawyer disagree on the disposition of the case. If they cannot resolve

their disagreement, the lawyer can consult the social worker’s supervisor and explain the reasons

for their position. If the supervisor and lawyer can reach agreement then the lawyer can proceed,

if not, the lawyer can go up the chain of command if the lawyer has concerns that the

supervisor’s position may not be in the best interests of the agency or violates the law.

Additionally, despite the fact that the lawyer represents the agency and not the individual social

worker, communications generally are protected by Rule 1.6, so communications the lawyer has

with the social worker and supervisor are protected which is helpful in the event that there is a

disagreement about how the case should be handled.

A. There is no “universal definition of the client of a government lawyer.” R3d § 97

cmt. c.

1. Possibilities:

a. Public interest or just the public

(1) Generally thought to be too amorphous and vague

(2) Lawyers who try to determine the public interest for

themselves are often thought to be subverting established

government processes for determining “the public interest”

out of contesting interests

(3) Even if “public interest” is defined as a statute or a court

interpretation of a statute, these can often be interpreted in

a variety of ways, and these interpretations may not be

static but in constant state of revision.

(4) On the other hand, some cases endorse the idea in the

abstract

b. The government as a whole

(1) See Hawaii Rule 1.13 cmt. [7]: “Although in some

circumstances the client may be a specific agency, it is

generally the government as a whole. For example, if the

action or failure to act involves the head of a bureau, either

the department of which the bureau is a part or the

government as a whole may be the client for purposes of

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this rule. Moreover, in a matter involving the conduct of

government officials, a government lawyer may have

authority to question such conduct more extensively than

that of a lawyer for a private organization in similar

circumstances.”

(2) Concern here is that lawyer who acts against the wishes of

his agency head (perhaps because he believes those actions

are contrary to legislative act or judicial opinion)

insufficiently upholds notions of separation of powers and

checks and balances.

c. The branch of government in which the lawyer is employed,

perhaps as represented by the highest authority in that branch

(1) But for executive agency lawyers, Governor or President

does not hire, fire, or supervise day-to-day activities of

these lawyers.

(2) Ignores the role of agency heads, appointed to carry out the

wishes of the chief executive.

d. The agency or department in which the lawyer works

(1) “Everyday” answer for most government lawyers

(2) Under 1.13(a), the “agency” acts through its “duly

authorized constituents.”

(3) Thus, for example, if agency head changes, the lawyer must

follow the directions of the new head, even if they differ

from previous directions of former head.

e. Responsible officers who make decisions for the agency: generally

not the case under MR 1.13(a)

2. Who the client is may change depending on the circumstances and the

purpose for asking the question. Thus, advance or overall answer to the

question may not be possible. Factors to consider:

a. Terms of retention

b. Hiring authority

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c. Scope and nature of lawyer’s services, e.g. whether litigation is

involved

d. Regulatory arrangements relevant to lawyer’s work

e. History and tradition’s of office in which lawyer works

f. Legal character of proposed government action/inaction

g. Constitutional or statutory authority of agency to make decision

without executive direction or review

3. Nevertheless, “for many purposes, the preferable approach on the question

[of who is the client] . . . is to regard the respective agencies as the clients

and to regard the lawyers working for the agencies as subject to the

direction of those officers authorized to act in the matter involved in the

representation.” R3d § 97 cmt. c.

a. Humphrey v. McLaren, 402 N.W.2d 535 (Minn. 1987): agency

(and in some cases the entire government) is the client, not the

individual head of the agency; state AG not disqualified under

former client conflict of interest rules from suing former director of

Public Employees Retirement Fund to recover money allegedly

improperly paid to former director.

b. Federal Bar Ass’n Op. 93-1: under normal circumstances,

government lawyer’s client is agency employing the lawyer.

Exceptions:

(1) Lawyer represents an employee of the government charged

with misconduct (e.g. court martial or personnel hearing)

(2) Responsible agency heads are involved in corrupt or clearly

illegal conduct; lawyer’s client then, by statute and

regulation, becomes the branch of government

4. Question of law, not ethics

B. Issues Relevant to the Who Is the Client Debate

1. Structure of governmental hierarchy and scope of discretion:

a. Who is the client becomes important when there is a conflict about

how to proceed between the agency head and the lawyer, the

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governor or president, the legislative branch, and/or the judiciary.

b. Many of these conflicts can be resolved by looking to the degree of

discretion reserved to agency heads and the hierarchical structure

of the relevant government.

2. Bounds of the law:

a. Key question here is how government lawyer is supposed to

determine the bounds of the law, i.e. where does legitimate

exercise of policy discretion end and violation of law begin, and in

making this judgment, can lawyer act as an “advocate” and follow

any directive for which some colorable legal argument can be

made, or must the lawyer act as a “counselor,” and make his best

judgment of what the law “is.”

b. Once the bounds of the law are exceeded, then lawyer generally

has broader obligations (see below).

3. Consequences of not following ethics rules or law:

a. Discipline

(1) Like lawyers in the private sector, government lawyers face

little practical risk of discipline from state disciplinary

authorities for getting these questions “wrong.”

(2) Some agencies have adopted the ABA’s ethics rules as

internal agency ethics rules. How often are these enforced?

b. Civil liability: Unlike private sector lawyers, government lawyers

may face lower risk of civil liability, such as malpractice and

breach of fiduciary duty, and fraud (aside from stealing money

from one’s agency or the like).

c. Criminal liability: like private sector lawyers, government lawyers

face potential criminal liability but again, this is relatively rare.

Hypothetial 1:

As full time DSS counsel I’m really caught when one of the social workers tries to direct my

“opinion” about the handling of a case when I know that her desired result goes against the

“policy” of DSS in these type cases.

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I think:

a. I can’t do that because DSS is my client;

b. I need to listen to the social worker because each case is different and they know it best;

c. DSS is wrong to have a “policy” that applies to all cases;

d. I really haven’t done my job in advising DSS about my role and the law;

e. I should use my own judgment as to what should be done (after all, I’m the lawyer).

Hypothetical 2:

So, what I’ve learned is:

a. I need to be “educating” my client about the law;

b. I need to understand my role and client;

c. I need to be educating social workers and the agency about my role;

d. I need to be following the law;

e. I need to be prepared for all my cases in advance;

f. All of the above.

Analysis:

An often overlooked rule is 2.1 dealing with a lawyer’s duty to advise their client. The rule

explicitly encourages lawyers to provide advice to clients that goes beyond purely legal advice.

It encourages lawyers to advise on moral, social, economic, or other factors relating to the

client’s situation. The comments to Rule 2.1 make clear that a client is entitled to

straightforward advice expressing the lawyer’s honest assessment, and that legal advice often

involves unpleasant facts and alternatives that a client may not want to confront.

Remember, the social worker is not the client. DSS counsel needs to advise and counsel with his

client (the constituent within the organization who has the highest authority in the matter) and

discuss all aspects of his concerns with this case.

Competence:

A larger problem may be that the lawyer can’t get a handle on his caseload. He is concerned

because he feels unprepared and not competently representing the interests of his client. The

underlying question becomes the issue of whether or not this is a matter of case overload or

simply inexperience. Reasonable diligence and promptness means that the lawyer needs to be

mindful of their caseload in managing their time. If the lawyer is simply overwhelmed because

his case load is overly burdensome then he needs to take this concern to his employer/agency.

The Ethics Committee has recently opined that the ethics rules, including competency and

diligence, apply uniformly to Commonwealth Attorneys acting unethically by taking cases they

do not have time to handle properly. There is no safe harbor under Rule 5.1 (Responsibilities of

Partners and Supervisory Attorneys). LEO 1798.

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Rule 1.1 requires that the lawyer provide competent representation to a client. Competence

involves many factors; including, the relative complexity and specialized nature of the matter,

the lawyer’s general experience, the lawyer’s training and experience in the field in question, the

preparation and study the lawyer is able to give the matter and whether it is feasible to refer the

matter to, or associate or consult with, a lawyer of established competence in the field in

question. Rule 1.1 Comment [1].

If it’s because of inexperience then the lawyer needs to find a fellow attorney who is willing to

provide him some assistance, guidance and mentoring with his cases. All of us have experienced

moments of feeling inadequately prepared due to inexperience in a matter. Mentoring is

becoming lost in the profession but is an important part of assisting young or inexperienced

attorneys in new areas of the law.

Competence also requires understanding your role and responsibilities as to your client. When a

lawyer represents an agency or organization this is sometimes much more difficult to do. Once

you establish who the client is then the role and responsibilities flow from there. Remember that

competence then requires protecting the client’s position and confidences, etc. as the lawyer’s

duties run to the client.

Rule 1.3 requires that the lawyer act with reasonable diligence and promptness in representing a

client. Diligence also requires that the lawyer understand all pertinent laws and practice formats

related to their client’s matters. DSS counsel needs to be informed of all pertinent laws, practice

forms, compliance requirements, and protocols that relate to this practice. They need to be

mindful of educating their clients about these areas and keeping them up-to-date on changes as

they occur. A good practice would be to annually hold seminars to educate folks within your

constituent organization about changes in the law and practice that relate to them. Part of the

role of counsel is education and communicating with the client.

Hypothetical 3:

So what happens now when the social worker tells me that sometimes she’s so overwhelmed

with her caseload that she “doctors” her case records to reflect home visits, etc.?

What do I do:

a. nothing;

b. advise her to stop ;

c. tell her supervisor;

d. advise my client.

Analysis:

Protecting Client Confidences:

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Suppose a social worker admits to the agency lawyer that she has altered dates on her case

record. What are the lawyer’s duties to her, to other parties, and to the court?

A lawyer representing the child welfare agency represents the agency, not the individual social

workers or employees. Generally, communications are protected by Rule 1.6 despite the fact

that the lawyer represents the agency, not the individual social worker. For example, if an

organizational client requests its lawyer to investigate allegations of wrongdoing, interviews

made in the course of that investigation between the lawyer and the client’s employees or other

constituents are covered under Rule 1.6. If the actions of the social worker threaten substantial

injury to the child welfare agency, the lawyer could not be compelled to reveal communications

to someone outside the organization.

However, the lawyer must reveal knowledge of the social worker’s wrongdoing to others within

the agency, including supervisors. This is because the lawyer has a duty to proceed as is

reasonably necessary to promote the best interest of the organization. For example, in the case

scenario above, the lawyer may not have to reveal the social worker’s wrongdoing to anyone

outside the agency.

The lawyer however should reveal the wrongdoing to a supervisor or higher authority within the

organization because the lawyer’s primary ethical responsibility is to protect the best interest of

the organization. The lawyer may need to proceed “up the chain of command” within the agency

to resolve concerns.

Duties to the social worker:

Sometimes the child welfare agency’s interest may become adverse to an employee (in this case

the social worker). Suppose the social worker wants to proceed in one direction and that is

antagonistic to the agency’s policy?

The lawyer’s ethical duty is to proceed in the best interest of the organization. When the

agency’s interests and the case worker’s interest diverge additional duties arise with respect to

the worker. Rule 1.13 says that the lawyer should advise the caseworker that the lawyer cannot

represent them and that she might want to obtain independent representation and that any

communication and discussions between the lawyer and the case worker may not be privileged.

Rule 1.13

(b) If a lawyer for an organization knows that an officer, employee or other person

associated with the organization is engaged in action, intends to act or refuses to act in a matter

related to the representation that is a violation of a legal obligation to the organization, or a

violation of law which reasonably might be imputed to the organization, and is likely to result in

substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the

best interest of the organization. In determining how to proceed, the lawyer shall give due

consideration to the seriousness of the violation and its consequences, the scope and nature of the

lawyer's representation, the responsibility in the organization and the apparent motivation of the

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person involved, the policies of the organization concerning such matters and any other relevant

considerations. Any measures taken shall be designed to minimize disruption of the organization

and the risk of revealing information relating to the representation to persons outside the

organization. Such measures may include among others:

(1) asking for reconsideration of the matter;

(2) advising that a separate legal opinion on the matter be sought for presentation

to appropriate authority in the organization;

(3) referring the matter to higher authority in the organization, including, if

warranted by the seriousness of the matter, referral to the highest authority that can act in

behalf of the organization as determined by applicable law.

(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority

that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a

violation of law and is likely to result in substantial injury to the organization, the lawyer may

resign or may decline to represent the client in that matter in accordance with Rule 1.16.

IV. Inter-Agency Conflicts/Conflicts

A. If government lawyer represents two agencies with conflicting interests, lawyer

may be bound by conflict of interest rules.

1. NYC Op. 2004-03 states that representations that would violate the ethics

rules governing conflicts of interest are “to be avoided.”

2. A number of state cases allow state AG to represent two state agencies

with conflicting interests in litigation. See, e.g., People’s Ins. Counsel

Division v. Allstate Ins. Co., 969 A.2d 971 (Md. 2009) (citing cases); State

ex. rel. Allain v. Mississippi Public Service Comm’n, 418 So.2d 779 (Miss.

1982); Environmental Protection Agency v. Pollution Control Bd., 372

N.E.2d 50 (Ill. 1977).

3. However, a conflict of interest may be found if the state AG intervenes as

a party in opposition to a state agency her office represents in litigation.

Granholm v. PSC, 625 N.W.2d 16 (Mich. App. 2000).

B. On the other hand, government lawyers may be authorized to mediate conflicting

positions between agencies

1. ABA Model Rules Scope [18] states that government lawyers “may be

authorized to represent several government agencies in intragovernmental

legal controversies in circumstances where a private lawyer could not

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represent multiple clients.”

2. NYC Op. 2004-03: “where a government lawyer is charged with

protecting the interests of the federal government, the state, or a locality,

nothing in the disciplinary rules restrains the government lawyer from

attempting to mediate a common position between agencies with

conflicting interests.”

3. Cf. In-house corporate counsel who must help company mediate dispute

between two divisions of the company.

Conflicts questions are determined on a case-by-case analysis under the application of Rule 1.7

and 1.9 dealing with current and former clients. Since you only handle cases for DSS on a

contract basis you would therefore only have conflicts as to future matters that involved the same

or substantially related case information from previous DSS matters you handled for the agency.

Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client,

a third person or from the lawyer’s own interests. The key question is whether pursuing one

client’s objectives will prevent the lawyer from pursuing another client’s objectives, and whether

confidentiality may be compromised. Rule 1.7 (a)(1) prohibits representing a client if that

client’s interests are directly adverse to another client, even if the matters are unrelated. Even if

there is no direct adverseness, representation is also prohibited under Rule 1.7 (a)(2) if 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, a third person or by a personal interest

of the lawyer.

Whether or not the lawyer’s representation in one matter may be “materially limited” by his

responsibilities to other clients (or vice versa) depends on the extent to which either client would

be adversely affected by the outcome of the other’s matter, and on whether the lawyer’s

diligence or judgment on behalf of one client would be compromised by his relationship or

identification with the other. This in turn may depend upon the issues at stake in a matter, the

particular role the lawyer is playing, and the intensity and duration of his relationship with the

lawyers he is opposing.

Questions to consider include: does representing one client foreclose alternatives for another?

Will confidential information from Client A be compromised in representing Client B? Can the

lawyer comply with the duties owed to each client, including the duty to pursue each client’s

position? Will the client “reasonably fear that the lawyer will pursue that client’s case less

effectively out of deference to the other client?” Can the lawyer ask for consent?

Conflict of interest analysis can get complicated, not only determining whether there is a

conflict, but what to do if there is. Withdrawal is usually, but not always, mandatory. Most

withdrawals based upon conflict of interest will be mandatory, not permissive withdrawals, but

even after withdrawal the lawyer must still maintain confidences.

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Hypothetical 4:

But what happens now when my client, DSS, is advocating one position for a child, but the

School Division, represented by my colleague down the hall, objects?

What should our office do?

a. continue to represent the DSS and the School Division but create a “chinese wall” for

informational purposes;

b. continue to represent either DSS or the School Division;

c. get independent counsel for both;

d. see if DSS and the School Division will consent to the continued representation of both.

Analysis:

You definitely have a conflict here. Since you work for a specific constituent agency of the

organizational client you are looking for assistance in applying the conflict’s analysis of Rule

1.7.

Remember Rule 1.7 does not allow concurrent representation of clients whose interests are

directly adverse to another or if there is a significant risk that the representation of one client

will be materially limited by the representation of another client. Notwithstanding the existence

of this concurrent conflict a lawyer may represent a client if each affected client consents after

consultation and the lawyer believes they will be able to provide competent and diligent

representation. This consent, under Rule 1.7(b), needs to be memorialized in writing.

In LEO 1836, the Ethics Committee recently opined that a City Attorney has multiple constituent

groups they provide representation to. The City Attorney may render legal opinions or

conclusions with which a constituent might strongly disagree or perceive as favoring another

constituent, but since the City Attorney’s role is lawyer for the entire organization that would not

be a conflict of interest.

Moreover, an attorney serving in his role as an advisor may be ethically driven to candidly tell

his client things the client does not want to hear. There is additional discussion in this LEO

regarding “screening” attorneys who represent designated constituents from other attorneys and

their constituent representation, only with the consent of authorized constituent members who

can make these decisions on behalf of the entire organization. LEO 1836.

Ultimately, under 1.2 and 1.13 the agency determines the position. However, representing

multiple constituents within the same organization with divergent interests may create an

irreconcilable conflict of interest.

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The decisions of constituents of the organization ordinarily must be accepted by the lawyer even

if their utility or prudence is doubtful. Decisions concerning policy and operations, including

ones entailing serious risk, are not as such in the lawyer's province. However, different

considerations arise when the lawyer knows that the organization may be substantially injured by

action of a constituent that is in violation of law. In such a circumstance, it may be reasonably

necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the

matter is of sufficient seriousness and importance to the organization, it may be reasonably

necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the

organization. Substantial justification should exist for seeking review over the head of the

constituent normally responsible for it. The stated policy of the organization may define

circumstances and prescribe channels for such review, and a lawyer should encourage the

formulation of such a policy. Even in the absence of organization policy, however, the lawyer

may have an obligation to refer a matter to higher authority, depending on the seriousness of the

matter and whether the constituent in question has apparent motives to act at variance with the

organization's interest. Review by the chief executive officer or by the board of directors may be

required when the matter is of importance commensurate with their authority. At some point it

may be useful or essential to obtain an independent legal opinion. Rule 1.13 Comment [3].

V. “Official Capacity” Parties as Client Agency Constituents

A. Nature of lawsuits naming agency official in his or her “official capacity”

1. Although these suits are in form against a named officer, they are in reality

a suit against the government agency or office

2. Example: actions against officers to compel performance of official duties

(mandamus actions, habeas corpus, agency proceedings); to obtain judicial

review of orders; to prevent officers from acting in excess of authority

3. Not included: actions seeking to secure money judgments against named

officers, enforceable against their personal assets

B. Representational Role of the Government Lawyer

1. Generally government lawyer in these suits represents the agency alone

and not the official personally, unless circumstances suggest otherwise.

R3d § 97 cmt. c.

2. Manchin v. Browning, 296 S.E.2d 909 (W.Va. 1982): state AG is

obligated to provide Secretary of State with legal representation in his

official capacity in litigation challenging Secretary’s actions, despite the

fact that AG agrees with plaintiff in that litigation.

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VI. Representation of Agency Constituents

A. Government lawyers may be authorized to represent government employees in

their personal capacity

1. Federal government: 28 C.F.R. § 50.15(a)

B. Government lawyer appointed to represent government employee in his or her

personal capacity has a full-fledged lawyer-client relationship with that employee

and owes full ethical duties to that employee.

C. Conflict of interest rules may prevent joint representation of employee and agency

1. NYC Op. 2004-3:

a. Conflicts of interest must be explored at the outset of the

relationship. “During this process the government lawyer and the

government employee must both have a clear understanding of

whether preliminary discussions are privileged and who controls

the privilege, the agency or the employee. . . . If the privilege

belongs to the individual, there should be a clear understanding as

to whether or not the information gained during the representation

may be shared with the agency client. . . . If information disclosed

by the individual will be shared with the agency, and especially if

the agency has authority to assert or waive the privilege with

respect to such information, the government lawyer must consider

whether an essentially unprivileged discussion (from the

perspective of the employee) will be sufficiently ‘full and frank’ to

prove a reliable basis for a conflict determination.”

b. If “a government agency and an individual agency constituent are

both parties, the availability of different defenses for governmental

entities than for individuals may lead to an insurmountable

conflict.”

c. “If a non-waivable conflict surfaces during a privileged interview

of a government employee, the government lawyer may be

disqualified from further representation of the agency as well as of

the employee.”

2. Cases involving claims of conflict of interest arising out of joint

representation by government lawyer of agency and constituent

a. Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984),

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modified, 748 F.2d 69: impermissible conflict of county attorney

who represented county police officer and county in claim for

personal injuries of man whom officer beat after discovering him

with officer’s wife.

3. Consent to conflicts:

a. Must determine who is authorized to consent on behalf of

government

b. Who has standing to challenge the government’s consent to joint

representation?

VII. Wrongdoing by an Agency Constituent

A. Reporting Up the Ladder, MR 1.13(b)

1. Requires the government lawyer to understand who the client is and who

is “the highest authority that can act on behalf of the organization.”

2. R3d § 97 cmt. j: “With respect to referral of a matter to a higher authority,

such a referral can often be made to allied governmental agencies, such as

the government’s general legal office, such as a state’s office of attorney

general.”

B. Withdrawal

1. Mandatory withdrawal, MR 1.16(a)(1): lawyer must withdraw if “the

representation will result in violation of the rules of professional conduct

or other law.”

C. Mandatory reporting statutes

1. Many government agencies are subject to statutes and regulations

governing the reporting of waste, fraud, and abuse.

2. U.S. Department of Justice standards state that “Department employees

shall report to their U.S. Attorney or Assistant Attorney General, or other

appropriate supervisor, any evidence or nonfrivolous allegation of

misconduct that may be in violation of any law, rule, regulation, order, or

applicable professional standards.”

3. 28 U.S.C. § 535(b): “Any information, allegation, matter, or complaint

witnessed, discovered, or received in a department or agency of the

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executive branch of the Government relating to violations of Federal

criminal law involving Government officers and employees shall be

expeditiously reported to the Attorney General by the head of the

department or agency, or the witness, discoverer, or recipient, as

appropriate, unless– (1) the responsibility to perform an investigation with

respect thereto is specifically assigned otherwise by another provision of

law; or (2) as to any department or agency of the Government, the

Attorney General directs otherwise with respect to a specified class of

information, allegation, or complaint.”

4. Federal Bar Ass’n Op. 73-1, The Government Client and Confidentiality,

32 Fed. Bar. J. 71 (1973): “does not believe there are any circumstances in

which corrupt conduct may not be disclosed by the federally employed

lawyer,” apart from circumstances involving personal representation of an

individual by the government lawyer.

VIII. Ethical Provisions Relating to Government Lawyers

A. ABA Model Rules of Professional Conduct

1. MR 1.13 cmt. [9]: The duty defined in this Rule applies to governmental

organizations. Defining precisely the identity of the client and prescribing

the resulting obligations of such lawyers may be more difficult in the

government context and is a matter beyond the scope of these Rules. See

Scope [18]. Although in some circumstances the client may be a specific

agency, it may also be a branch of government, such as the executive

branch, or the government as a whole. For example, if the action of

failure to act involves the head of a bureau, either the department of which

the bureau is a part or the relevant branch of government may be the client

for purposes of this Rule. Moreover, in a matter involving the conduct of

government officials, a government lawyer may have authority under

applicable law to question such conduct more extensively than that of a

lawyer for a private organization in similar circumstances. Thus, when the

client is a governmental organization, a different balance may be

appropriate between maintaining confidentiality and assuring that the

wrongful act is prevented or rectified, for public business is involved. In

addition, duties of lawyers employed by the government or lawyers in

military service may be defined by statutes and regulation. This Rule does

not limit that authority. See Scope.

2. Scope [18]: 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

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a government agency may have authority on behalf of the government to

decide upon settlement or whether to appeal from an adverse judgment.

Such 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. These Rules do not abrogate any such authority.

3. MR 1.0 cmt. [3]: “With respect to the law department of an organization,

including the government, there is ordinarily no question that the members

of the department constitute a firm within the meaning of the Rules of

Professional conduct.” Thus, for example, imputation of conflicts MR

1.10(a), applies.

B. Restatement (Third) Law Governing Lawyers

1. § 97: A lawyer representing a governmental client must proceed in the

representation as stated in § 96, except that the lawyer:

(1) possesses such rights and responsibilities as may be defined by

law to make decisions on behalf of the governmental client that are

within the authority of a client under §§ 22 and 21(2);

(2) except as otherwise provided by law, must proceed as stated in

§§ 96(2) and 96(3) with respect to an act of a constituent of the

governmental client that violates a legal obligation that will likely

cause substantial public or private injury or that reasonably can be

foreseen to be imputable to and thus likely result in substantial

injury to the client;

(3) if a prosecutor or similar lawyer determining whether to file

criminal proceedings, must do so only when based on probable

cause and the lawyer’s belief, formed after due investigation, that

there are good factual and legal grounds to support the step taken;

and

(4) must observe other applicable restrictions imposed by law on

those similarly functioning for the governmental client.

2. No case citations to R3d § 97 yet

C. ABA Model Code of Professional Responsibility

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1. EC 7-11: The responsibilities of a lawyer may vary according to the . . .

obligation of a public officer.

2. EC 7-14: A government lawyer who has discretionary power relative to

litigation should refrain from instituting or continuing litigation that is

obviously unfair. A government lawyer not having such discretionary

power who believes there is lack of merit in a controversy submitted to

him should so advise his superiors and recommend the avoidance of unfair

litigation. A government lawyer in a civil action or administrative

proceeding has the responsibility to seek justice and to develop a full and

fair record, and he should not use his position or the economic power of

the government to harass parties or to bring about unjust settlements or

results.

Hypothetical 5: Definition of Client – Government Entities

You joined your state’s attorney general’s office immediately after law school, and have

developed an interesting practice representing state-operated colleges. One of your college

clients just asked for your help in pursuing a matter adverse to another state entity (which funds

and processes state and employee health care claims). You have never worked for the state health

care agency.

May you represent the state-operated college in a matter adverse to the state-operated

health plan?

Analysis

The question here is whether a lawyer’s representation of one arm of the government

precludes the lawyer’s involvement in matters adverse to other arms of the government.

The ABA addressed this issue in ABA LEO 405 (4/19/97). The ABA explained that

determining whether a lawyer may represent one government entity while being adverse to

another depends upon “whether the two government entities involved must be regarded as the

same client” or whether one representation may be “materially limited” by the other, in which

case the conflict might be curable with consent. The ABA also explained that determining if

governmental entities are the same client is a “matter of common sense and sensibility” including

such factors as: entities’ understandings and expectations; any understanding between the entities

and the lawyers; whether the government entities have “independent legal authority with respect

to the matter for which the lawyer has been retained”; the entities’ stake in the substantive issues

or shared concerns about the outcome. In discussing adversity, the ABA explained that

determining if one representation would be “materially limited” by another representation

depends on whether the matter would affect the “financial well-being or programmatic purposes”

of either client. In some situations, a lawyer’s representation of a government entity “on an

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important issue of public policy so identifies her with an official public position” that the lawyer

could not oppose the government, even on an entirely unrelated matter.

The Restatement (Third) of Law Governing Lawyers § 97 cmt. c acknowledges that a

government lawyer ultimately represents to the public, but notes that such a definition is “not

helpful.” The Restatement proposes as the “preferable approach” an arrangement regarding “the

respective agencies as the clients” and the lawyers representing those agencies “as subject to the

direction of those officers authorized to act in the matter involved in the representation.” The

Restatement concludes that “[i]f a question arises concerning which of several possible

governmental entities a government lawyer represents, the identity of the lawyer’s governmental

client depends on the circumstances.”

Courts generally take the same approach. For instance, in Brown & Williamson Tobacco

Corp. v. Pataki, 152 F. Supp. 2d 276 (S.D.N.Y. 2001), the court refused to disqualify the law

firm of Covington & Burling from representing plaintiff Brown & Williamson in a lawsuit

against New York State, despite the law firm’s long-term representation of New York state

agencies on unrelated matters. The court explained that the identity of the law firm’s client was

not necessarily determined by the agency with which the law firm contracted, or the face that the

law firm’s bills are directed to “State of New York.” The court eschewed a “formalistic”

approach, and instead found that “the agencies responsible for the matters specified in [the law

firm’s] contract are its clients.” Id. At 287.

Virginia takes the same basic approach. Virginia Rule 1.7 Comment [14] explains that:

Government lawyers in some circumstances may represent government

employees in proceedings in which a government agency is the opposing

party.

A number of Virginia Legal Ethics Opinions take the same approach. Virginia LEO 1785

(11/14/03) (holding that a part-time County Attorney may not represent a Board of Supervisors

in a lawsuit against the county’s Board of Zoning Appeals, because the County Attorney was

either currently representing or had formerly represented the Board of Zoning Appeals in the

matter – thus treating the different governmental entities as separate clients for conflicts of

interest purposes); Virginia LEO 1776 (5/19/03) (each jurisdiction’s Public Defender and each

jurisdiction’s Capital Defense Unit should be considered separate legal entities for conflicts

purposes, because each office acts independently, has a secure computer system and bears none

of the indicia of the offices in a multi-office law firm; although a single state Commission

oversees all of the offices, this fact should not result in a presumption that information in one

office is shared with other offices; a Public Defender in an office may represent a capital

defendant in a matter adverse to a client formerly represented by another lawyer in that office,

“unless the defense of the current client would require the use of [protected] information

obtained in the representation of the former client.”); Virginia LEO 964 (3/1/88) (explaining that

the Virginia Attorney General represents Virginia governmental departments as units, thus

impliedly recognizing that the state “government” is not a single monolithic client for conflicts

purposes); Virginia LEO 495 (9/3/82) (explaining that a lawyer may be adverse to a school board

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although the lawyer’s partner represents the Board of Supervisors, because the governmental

entities are separate “with neither being a parent body of the other”).

The best answer to this hypothetical is PROBABLY YES.

Hypothetical 6: Separate Representation of Government Officials

You have known the current governor since childhood, and for many years have been

either her formal or informal advisor. When she was elected governor, you joined your state’s

Attorney General’s office and continued to serve as one of her advisors. Your lifelong friend has

recently fallen on hard times, and the federal government is investigating her for possible illegal

conduct. You just received a subpoena to testify about communications you had with the

governor, and you naturally want to avoid disclosing those communications.

May you rely on the attorney-client privilege in refusing to answer questions about

communications you had with the governor?

Analysis

Although the Virginia State Bar has not frequently addressed this issue, it has

acknowledged that government lawyers may represent government employees in certain

circumstances – with full disclosure and consent.a

The Bar’s analysis did not include a discussion of the privilege ramifications of the

separate representation.

In a number of high-profile federal cases, several courts have forced government lawyers

to provide testimony to grand juries about communications they had with other government

employees. These courts reason that [government lawyers owe their duty to the government as a

whole] not just to the agency with which they most often work. Therefore, they generally cannot

claim the attorney-client privilege in refusing to testify in a criminal investigation focusing on a

governmental entity.

On the other hand, a recent Second Circuit case has taken the opposite approach. United

States v. Doe (In re Grand Jury Investigation), 399 F. 3d 527 (2d Cir. 2005). The District Court

a Virginia LEO 1661 (2/28/96) (a City Attorney may represent a police officer in a case in which both

compensatory damages and punitive damages are sought, even though the city would not be responsible for the

payment of any punitive award; the city and the officer agree on the basic underlying facts and believe that they will

advance consistent defenses; still, the City Attorney must advise the officer in writing that the officer has the right to

seek independent counsel to defend the punitive damage claim, and that the lawyer “would be required to withdraw

from representation if discovery reveals the appropriateness of antagonistic defenses or that the officer acted

contrary to City policy or outside the scope of his employment”, the Bar analogized the situation to a lawyer hired

by an insurance company representing an insured – “although paid by the insurer, the lawyer must represent the

insured with undivided loyalty”; may not disclose or use confidences or secrets “which may create a policy defense

for the insurance company”; and must withdraw if the insured and insurer disagree about whether to settle the case).

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had compelled ex-Connecticut Governor Rowland’s former chief legal counsel to answer

questions about conversations she had with then-Governor Rowland. The Second Circuit

reversed, finding that Governor Rowland enjoyed a personal attorney-client relationship with the

government lawyer – meaning that the lawyer could refuse to testify. The Second Circuit relied

primarily on cases recognizing that the government itself can enjoy an attorney- client

relationship with a government lawyer (which is beside the point), and acknowledged that its

opinion conflicts with an earlier Seventh Circuit decision and “is in sharp tension” with decisions

by the Eighth and D.C. Circuits. Id. at 536 n.4.

It will be interesting to see if this split among the Circuits results in a United States

Supreme Court decision on this issue.

The best answer to this hypothetical is NO (PROBABLY).

Hypothetical 7: Ex Parte Contacts with a Private Corporate Adversary’s Employees

You work in the attorney general’s office, and you are defending a state agency in a

breach of contract case brought by a local company. After you analyze the plaintiff’s initial

document production, you determine that there are two key witnesses with knowledge of

plaintiff’s alleged damages – a billing clerk still employed by the plaintiff, and the plaintiff’s

former chief financial officer. You think that the plaintiff’s damage theory is a lawyer creation

that is inconsistent with the historical record. You would like to privately interview these

witnesses without advising the plaintiff’s lawyers.

(a) May you interview the plaintiff’s billing clerk without advising the plaintiff’s lawyers?

(b) May you interview the plaintiff’s former chief financial officer without advising the

plaintiff’s lawyers?

Analysis

Under Virginia Rule 4.2, a lawyer cannot:

Communicate about the subject of the representation with a person the lawyer

knows to be represented by another lawyer in the matter, unless the lawyer has the

consent of the other lawyer or is authorized by law to do so.

Virginia Rule 4.2 applies to this situation, since you want to communicate with

representatives of an adverse party. Here, the question is whether the adverse party’s current or

former employees fall within the definition of “adverse party” for purposes of the rule.

(a) In Virginia, Virginia Rule 4.2 Comment [4] prohibits ex parte contacts only with a

corporate adversary’s: (1) “control group” (defined as those with “authority to bind

the corporation”); and (2) “persons who may be regarded as the ‘alter ego’ of the

organization.”

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On the other hand, in one Legal Ethics Opinion the Virginia Bar indicated that lawyers

initiating such ex parte contacts must disclose their adversarial role, and then try “to ascertain

whether that employee feel that his employment or his situation requires that he first

communicate with counsel for the corporate entity.” Virginia LEO 905 (3/17/89). A lawyer

concluding that the employee “feels” this way must presumably end the communication.

In addition, Virginia practitioners do not dare follow the Virginia Bar’s approach without

checking substantive case law. For some reason, Virginia federal courts have applied the ABA

approach (discussed below) rather than the Virginia approach. To make it even more confusing,

the Virginia federal courts have adopted what was then the ABA approach (which prohibited ex

parte contacts with a corporate adversary’s employees whose statements would be considered

party admissions). If the Virginia federal courts’ rulings have been simply an adoption of the

ABA approach, would it be safe to assume that the federal courts would now adopt the new ABA

approachb -- which indicates that such employees are fair game for ex parte contacts? If the

federal courts were adopting the ABA approach as their own substantive law, then the answer to

that question might well be no.

All in all, lawyers would be wise to think long and hard before contacting a corporate

adversary’s employee.c

(b) In Virginia, Virginia Rule 4.2 cmt. [4] indicates on its face that the prohibition on

ex parte contacts “does not apply to former employees or agents of the organization.”

The Comment even indicates that “an attorney may communicate ex parte with such

former employee or agent even if he or she was a member of the organization’s

internal ‘control group.’” Virginia state courts would presumably follow this

approach (there appears to be no case law).

b The ABA has recently changed its approach. Comment [7] to ABA Model Rule 4.2 indicates that :

In the case of a represented organization, this Rule prohibits communications with a constituent of

the organization who supervises, directs or regularly consults with the organization’s lawyer

concerning the matter or has authority to obligate the organization with respect to the matter or

whose act or omission in connection with the matter may be imputed to the organization for

purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for

communication with a former constituent. If a constituent of the organization is represented in the

matter by his or her own counsel, the consent by that counsel to a communication will be

sufficient for purposes of this Rule.

The ABA Ethics 2000 Task Force deleted from the off-limits corporate employees those “whose statement may

constitute an admission on the part of the organization.”

Under the ABA approach, the off-limits employees would include the company’s “control group” and

employees whose acts or omissions (in connection with the pertinent matter) may render the company liable. This

approach renders off limits all employees whose statements may constitute admissions by the corporation) certainly

makes more employees fair game for ex parte contacts. c In addition to all of the ethics issues, lawyers who make such ex-parte contacts might find themselves

witnesses in the case – raising additional ethics and disqualification issues.

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However, the Virginia federal courts are split. The Eastern District Court would

presumably follow the ABA approach, while the Western District has explicitly

indicated that even former employees of a corporate adversary are off limits.

The best answer to hypothetical (a) is PROBABLY YES and the best answer to hypothetical (b)

is MAYBE.

Hypothetical 8: Ex Parte Contacts with a Public Adversary’s Employees

You are with the attorney general’s office lawyer and assist state school boards in dealing

with special education issues. You have had an increasing problem with lawyers for anxious and

upset parents directly contacting school administration officials and employees without advising

you beforehand. Your client wants to know the ground rules for such ex parte contacts.

(a) May a lawyer for a parent conduct ex parte communications with the head of the school

administration?

(b) May a lawyer for a parent conduct ex parte communications with a lower level school

administration employee?

Analysis

(a)-(b) The issue of private citizens or their lawyers communicating with government

officials or employees implicates First Amendment principles as well as ethics principles.

Ironically, the ABA issued an ethics opinion that takes exactly the opposite approach. In

ABA LEO 408 (8/2/97), the ABA indicated that First Amendment considerations allowed an

adverse lawyer to communicate ex parte with government officials “who have authority to take

or to recommend action,” as long as the lawyer’s “sole purpose” was to “address a policy issue.”

The ABA required that the lawyer in such a setting provide advance notice to the government’s

lawyer about the communication.

On the other hand, the ABA indicated that a lawyer’s communication with lower-level

government employees do not implicate the First Amendment. For this reason, a lawyer could

not conduct ex parte communications with government employees who are “not authorized to

take or recommend action in the matter, or where the purpose of the communication is to

develop evidence as well as address a policy issue.”

Best Answer

Under the Virginia approach, the best answer to hypothetical (a) is PROBABLY NO and

the best answer to hypothetical (b) is PROBABLY YES

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Hypothetical 9: Request to Avoid Ex Parte Communications

You are a lawyer with the AG’s office representing another local government agency

with several hundred employees that has been sued for racial discrimination. You suspect that

Plainntiff’s counsel will begin calling some of your agency's current and former employees to

gather evidence. You would like to take whatever steps you can to protect your client/agency

from these interviews.

(a) May you send a memorandum to all current agency employees "directing" them

not to talk with the plaintiff's lawyer if she calls them?

(b) May you send a memorandum to all current agency employees "requesting" them not to

talk with the plaintiff's lawyer if she calls them?

(c) May you advise agency employees that they are not required to talk to the plaintiff's

lawyer if the lawyer calls them?

Analysis

The ABA permits some defensive measures as an exception to the general prohibition on

lawyers providing any advice to unrepresented persons.

A lawyer shall not . . . request a person other than a client to refrain

from voluntarily giving relevant information to another party

unless:

(1) the person is a relative or an employee or other agent of

a client; and

(2) the lawyer reasonably believes that the person's

interests will not be adversely affected by refraining from giving

such information.

ABA Model Rule 3.4(f) (emphases added).

The Rule seems self-evident, although the ABA added a small comment.

Paragraph (f) permits a lawyer to advise employees of a

client to refrain from giving information to another party, for the

employees may identify their interests with those of the client. See

also Rule 4.2.

Virginia and ABA Model Rule 3.4 cmt. [4] (emphasis added). The ABA has not reconciled its

use of the term "request" in the black-letter rule and its use of the term "advise" in the comment.

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The former seems weaker than the latter, and the distinction might make a real difference in the

effect that the lawyer's communication has on the client employee/agent. An employee receiving

an ex parte contact from an adversary might think that she can ignore her employer's lawyer's

"request" to refrain from talking to the adversary's lawyer, but might feel bound if the employer's

lawyer has "advised" her not to give information to the adversary's lawyer.

The Restatement addresses this issue as part of its ex parte contact provision. The

Restatement uses the "request" standard, and even specifically warns that lawyers may run afoul

of other rules if they "direct" their client employees/agents not to speak with an adversary's

lawyer. The Restatement also answers a question that the ABA Model Rules leave

open -- whether lawyers' requests that their client employees/agents not give information to the

adversary limit in any way the adversary's lawyers from trying to obtain such information. The

Restatement indicates that it does not.

A principal or the principal's lawyer may inform employees or

agents of their right not to speak with opposing counsel and may

request them not to do so (see § 116(4) & Comment e thereto). In

certain circumstances, a direction to do so could constitute an

obstruction of justice or a violation of other law. However, even

when lawful, such an instruction is a matter of intra-organizational

policy and not a limitation against a lawyer for another party who

is seeking evidence. Thus, even if an employer, by general policy

or specific directive, lawfully instructs all employees not to

cooperate with another party's lawyer, that does not enlarge the

scope of the anti-contact rule applicable to that lawyer.

Restatement (Third) of Law Governing Lawyers § 100 cmt. f (2000) (emphases added).

Most states take this approach.

(a) The ABA and state ethics rules only allow a lawyer to "request" that current client

employees not provide information to the corporation's adversaries. The Restatement explains

that "[i]n certain circumstances, a direction to do so could constitute an obstruction of justice or a

violation of other law. " Restatement (Third) of Law Governing Lawyers § 100 cmt. f (2000)

(emphasis added).

(b) The ABA, the Restatement and state ethics rules allow company lawyers to take

this step. Another option is for the company's lawyers to advise company employees that they

are free to meet with lawyers for the company's adversary, but that the company lawyers would

like to attend such meetings.

(c) Lawyers may find themselves facing another ethics rule if they do more than

"request" that an employee or former employee not voluntarily provide facts to an adversary.

For instance, lawyers advising an employee or former employee that they do not have to speak

with the adversary's lawyer almost surely are giving legal advice to an unrepresented person.

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The ABA Model Rules provide that:

The lawyer shall not give legal advice to an unrepresented person,

other than the advice to secure counsel, if the lawyer knows or

reasonably should know that the interests of such a person are or

have a reasonable possibility of being in conflict with the interests

of the client.

ABA Model Rule 4.3. A comment provides further guidance.

The Rule distinguishes between situations involving unrepresented

persons whose interests may be adverse to those of the lawyer's

client and those in which the person's interests are not in conflict

with the client's. In the former situation, the possibility that the

lawyer will compromise the unrepresented person's interests is so

great that the Rule prohibits the giving of any advice, apart from

the advice to obtain counsel. Whether a lawyer is giving

impermissible advice may depend on the experience and

sophistication of the unrepresented person, as well as the setting in

which the behavior and comments occur.

ABA Model Rule 4.3 cmt. [2].

The best answer to (a) is PROBABLY NO; the best answer to (b) is YES; the best

answer to (c) is MAYBE; the best answer to (d) is PROBABLY YES.

ELECTRONIC COMMUNICATIONS GENERALLY

Advances in technology have brought new methods of communication and information

storage to the practice of law, including e-mail, mobile telephones, facsimile machines, digital

document creation and storage, electronic bulletin boards, chatrooms, and listservs.

A lawyer's duties with respect to protecting the confidentiality of client information—

whether under the ethics rules or the evidentiary attorney-client privilege—remain the same

regardless of the method by which the information is communicated or stored. However, the

unique features of electronic communication and storage require that special attention be paid to

(1) the specific precautions necessary to protect client information; and (2) the possibility of

triggering a duty of confidentiality by unintentionally forming a lawyer-client relationship—or,

more likely, a lawyer-“prospective client” relationship.

When a lawyer sends, receives, or stores client information in electronic form, the

lawyer's duty to protect that information from disclosure to unauthorized individuals is the same

as it is for information communicated or kept in any other form. However, electronic information

has features that affect both the means required to protect client information and the manner in

which the duty is triggered in the first place.

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Those features include:

A. Decreased control over the nature and amount of information received from others,

as well as a decreased ability to identify the sender prior to opening an e-mail. This

creates the possibility that by merely opening an e-mail, the lawyer may create a

lawyer-“prospective client” relationship with the sender (whose identity might have

been previously unknown), triggering a number of professional obligations, including

the duty of confidentiality.

B. Greater susceptibility to unauthorized access. Electronic communications may be

more susceptible to interception by unauthorized or unknown persons than are other

forms of communication. Creation and storage of client information in electronic

form via outside service providers also heighten the risk of unauthorized disclosure.

C. The existence of metadata (embedded information about a document, such as when it

was created, who has worked on it, and how it has been changed), which creates a

greater risk of unknown or inadvertent disclosure. Many electronic documents

contain metadata that is usually hidden from users' view and that may include

protected information. Its invisibility creates a heightened risk that the information

won't be removed before the electronic documents are turned over to others.

D. Increased opportunity for inadvertent disclosure of client information due to the

greater ease of transmitting large amounts of information electronically.

An additional concern becomes the issue of the client’s use of their own e-mail,

cellphone, social media sites and other electronic devices and resources. It quickly becomes the

lawyer’s responsibility to advise and assist the client in managing those resources as well, since a

compromise of client information by opposing party or counsel can be extremely detrimental to

the client’s matter.

I. E-MAILS

Some older ethics opinions forbade use of cellular and cordless phones and unencrypted

e-mail without client consent. However, more recent authorities condone the use of electronic

communication, even without encryption, reasoning that the expectation of privacy is the same

as for ordinary telephone use. In this regard, some opinions rely partly on the fact that the

unauthorized interception of electronic communications is a federal crime under the Electronic

Communication Privacy Act, 18 U.S.C. §§2511, 2701. As the ABA's Standing Committee on

Ethics and Professional Responsibility reasoned in ABA Formal Ethics Op. 99-413 (1999):

[E]-mail communications, including those sent unencrypted over the Internet, pose no greater

risk of interception or disclosure than other modes of communication commonly relied upon as

having a reasonable expectation of privacy. The level of legal protection accorded e-mail

transmissions, like that accorded other modes of electronic communication, also supports the

reasonableness of an expectation of privacy for unencrypted e-mail transmissions. The risk of

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unauthorized interception and disclosure exists in every medium of communication, including e-

mail. It is not, however, reasonable to require that a mode of communicating information must be

avoided simply because interception is technologically possible, especially when unauthorized

interception or dissemination of the information is a violation of [the ECPA].

So while security related to email usage with co-counsel or opposing counsel seems

protected, what about email communications with your client. As Rule 1.6 states, the duty of

protecting the client’s confidences belongs to the lawyer, therefore, it is prudent that when

considering email communications with a client the lawyer considers several factors, such as:

1. Is the client’s email address personal or a business address?

2. Is the client’s email access on a personal computer or shared computer (meaning

employer computer or household computer)?

3. Is the client’s access to that email secure (or have they shared their password with

others)?

E-Mail Cautions:

1. Make sure you know who the intended recipients are and to whom copies should be

sent.

2. The client’s file should be documented to show appropriate contact information on

client at time of Intake.

3. Determination should be made at time of Intake of client’s matter as to whether e-

mail communication is an appropriate form of communication based on the nature of

the matter and information.

4. A system should be developed to insure that copies of e-mails are put into the file as

documentation of matters communicated (an electronic file should be established to

track all electronic communications).

5. “Reply” or “reply all”? Make sure you use e-mail responses appropriately. Just

because opposing counsel copies his client on an e-mail communication to lawyer

that does not give lawyer permission to cc: his response to opposing party as well.

Think about this as you would a letter with a cc: at the bottom; lawyer would never

cc: opposing party in his response even though opposing counsel copies his client on

the letter. Same rules apply as per Rule 4.2. Lawyer cannot cc: his e-mail response

to opposing party without opposing counsel’s permission or he will have violated

Rule 4.2 regarding communications with person’s represented by counsel.

6. When appropriate, use an e-mail form that indicates the materials contained are

attorney-client privileged and intended only for the party to whom they were directed.

The note should further indicate that should someone other than the intended recipient

receive the communication, the attorney’s office should be contacted immediately

and the communication returned without having been read. (See Virginia LEO 1702

addressing this issue which adopted the conclusion reached in ABA Formal Opinion

92-368 (subsequently withdrawn by ABA Formal Opinion 05-437). Virginia LEO

1702 states that a lawyer who “receives materials that on their face appear to be

subject to the attorney-client privilege or otherwise confidential, under circumstances

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where it is clear they were not intended for the receiving lawyer, should refrain from

examining the materials, notify the sending lawyer and abide by the instructions of

the lawyer who sent them.” (Note that Virginia has not adopted ABA Model Rule

4.4(b) which states: RESPECT FOR RIGHTS OF THIRD PERSONS:(b) A lawyer

who receives a document or electronically stored information relating to the

representation of the lawyer's client and knows or reasonably should know that the

document or electronically stored information was inadvertently sent shall promptly

notify the sender.)

II. CLIENT’S USE OF EMPLOYER’S COMPUTER

Several cases have examined what happens when employees communicate with their

personal attorneys via employer-provided networks or computers. The courts analyzed whether

the employer clearly reserved the right to monitor employees' electronic communications, thus

eliminating any reasonable expectation of confidentiality and vitiating any claim of privilege.

III. SOCIAL MEDIA AND RELATED ISSUES

Regardless of your practice area, online connections are fraught with the same ethical

pitfalls as in-person interaction with potential clients and others. With the volume of

communication made possible by social networking sites, these ethical risks are only magnified:

Commenting on pending trials or revealing specific case results without a disclaimer.

Recklessly criticizing judges or other attorneys, or giving that impression.

Revealing privileged or confidential information.

Exposing the law firm to claims of defamation or harassment.

Sending messages that appear to be legal advice, which can create unintended attorney-

client relationships.

Violating ethics rules against solicitation of legal work.

Practicing law in a jurisdiction where you are not licensed.

Receiving messages that contain malware or illegal materials.

A. Diligence and competence (Rule 1.1 and 1.4) require the lawyer to:

1. Understand if/how clients are using social networking,

2. Advise clients as to their further use of social networking to their best advantage, and

3. Use social networking sites as investigative tools (opposing party, witnesses, jurors)

B. Confidentiality (Rule 1.6):

1. Messages via Twitter or other social networks must be treated with the same

degree of reasonable care as messages via e-mail or other traditional

communications.

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2. Discussion about pending legal matters raises problems, and generally should be

left to traditional e-mail format.

C. Pretexting

Before beginning a jury trial, many attorneys are turning to social networking sites as an

invaluable research tool into the suitability of citizens on the jury list. Judges are increasingly

checking probationer’s web pages for evidence of drug and alcohol violations. But, diligent

research becomes an ethical violation when this passive collection of available information leads

to more active online investigations. A defense attorney or investigator, for example, cannot

“friend” a prosecution witnesses in an attempt to glean impeachment evidence.

Virginia Rule 8.4(c) prohibits the “dishonesty, fraud, deceit or misrepresentation”

required to pretextually “friend” someone online only to garner information useful to a client or

harmful to the opposition. And, under Rule 8.4(a) a lawyer cannot use another person to

circumvent the Rules, so paralegals and investigators must also be careful how much they dig

online.

The Philadelphia Bar Association’s ethics committee declared unethical a lawyer’s plan

to collect information about an adverse litigation witness by hiring an investigator to

gain access to the witness’s personal online social networking profiles (Philadelphia

Bar Ass’n Professional Guidance Comm., Op. 2009-02, March 2009).

Employing a third party to befriend an adversarial witness through an online social

network in order to obtain access to the witness’s personal pages clearly constitutes

unethical deception, the committee said, because the plan involves concealing “the

highly material fact” that any information collected from those pages would later be

used to impeach the witness. The committee concluded that the proposed course of

conduct would violate Pennsylvania Rules of Professional Conduct 8.4(c) (conduct

involving dishonesty, fraud, deceit, or misrepresentation), 4.1(a) (knowingly making

false statements of material fact to third person) and 8.4(a) (violating Rules through acts

of another). And, the attorney was held accountable for the investigator’s conduct under

Rule 5.3(c)(1), which makes lawyers responsible for behavior the lawyer “orders” or

“ratifies.”

Furthermore, when communicating with any person online, whether under a friendly

pretext or after appropriate disclosures, attorneys should also bear in mind the dictates of Rules

4.2 and 4.3 for dealing with those represented by counsel or with unrepresented persons.

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IV. DOCUMENTS

A. Inadvertent Receipt/Disclosure of Document

Because electronic communication makes it possible to transmit large amounts of data

with relative ease, it therefore presents greater opportunities for inadvertent disclosure of client

information, including privileged information. Since Virginia has not adopted Model Rule

4.4(b) this issue is most recently addressed in LEO 1702 (referenced previously).

The question of whether the attorney-client privilege is waived when a lawyer

inadvertently transmits privileged information to another is a question of substantive law that

varies from one jurisdiction to another. Generally speaking, courts have taken one of three

positions on it:

• the “strict” position that inadvertent disclosure always destroys the privilege; e.g., Wichita

Land & Cattle Co. v. Am. Fed. Bank FSB, 148 F.R.D. 456 (D.D.C. 1992) (“[d]isclosure of

otherwise-privileged materials, even where the disclosure was inadvertent, serves as a waiver of

the privilege”);

• the “lenient” position that only a knowing waiver by the client can destroy the privilege;

e.g., Mendenhall v. Barber-Greene Co., 531 F. Supp. 936 (S.D. Fla. 1991) (“mere inadvertent

production by the attorney does not waive the client's privilege’); or

• the “intermediate” position that the effect on the privilege depends on the circumstances of the

disclosure; e.g., Elkton Care Ctr. Assocs. v. Quality Care Mgmt., 805 A.2d 1177, 18 Law. Man.

Prof. Conduct 572 (Md. Ct. Spec. App. 2002) (discussing three approaches and adopting

intermediate position; court identifies five factors to consider in deciding whether circumstances

amount to waiver of privilege); Amersham Biosciences Corp. v. PerkinElmer Inc., No. 03-4901

(JLL), 2007 WL 329290 (D.N.J. Jan. 31, 2007) (applying five-factor test to party's inadvertent

disclosure of privileged metadata).

The Restatement embraces the intermediate position. Restatement (Third) of the Law

Governing Lawyers (2000) §79 cmt. h (Reporter's Note indicates that majority of courts “take the

intermediate position” and “preserve the privilege unless, in effect, the client's own negligence

produced the compromising disclosure”).

A great case example: A client sent a law firm a compact disk containing several hundred

e-mails. The client asked the firm to review the information, remove privileged material, and

produce the remainder to an adversary's discovery manager for conversion to paper format. A

firm lawyer reviewed most of the files, deleted some that he considered privileged, and failed to

review others that the firm's software could not open. Copies of the deleted files, however,

remained on the disk in the form of metadata and the discovery manager's software was able to

retrieve, convert, and produce to the adversary both the deleted files and the files that the lawyer

could not open.

The court held that the law firm's efforts to protect privileges did not display the

“reasonable diligence” necessary to preserve privileges, with the result that all privileges were

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lost as to the entire contents of the disk. Amersham Biosciences Corp. v. PerkinElmer Inc., No.

03-4901 (JLL), 2007 WL 329920 (D.N.J. Jan. 31, 2007).

B. Metadata

Many types of computer software create information that is not visible on the screen or in

the printed document, but that can be accessed by those with knowledge of the software's

properties. This hidden information, sometimes referred to as “metadata,” may reveal such

details about the document's authorship, preparation, prior drafts, and revisions, and therefore

about the attorney's legal strategy—even information that the drafter thought had been erased

from the visible document. See, e.g., Advante Int'l Corp. v. Mintel Learning Tech., No. C 05-

01022 JF(RS), 2008 WL 108900 (N.D. Cal. Jan. 8, 2008) (analyzing discoverability of “redline”

version—that is, with deletions still visible—of draft interrogatory response inadvertently

produced on client's hard disk.)

Duty to Prevent Disclosure of Metadata

Several ethics opinions have concluded that lawyers who transmit electronic documents

to third parties have a duty to ensure that no client information is revealed in embedded

metadata. Both Rule 1.1 regarding competent representation and Rule 1.6 regarding

confidentiality require lawyer’s attention to understanding metadata.

Similarly, a lawyer's failure to take reasonable precautions to remove metadata containing

client information before producing it to an adversary in litigation may waive the attorney-client

privilege. SeeAmersham Biosciences Corp. v. PerkinElmer Inc., No. 03-4901 (JLL), 2007 WL

329290 (D.N.J. Jan. 31, 2007) (law firm waived attorney-client privilege and work product

protection concerning client e-mails by producing compact disk containing information in hidden

metadata files and files inaccessible to producing firm but later recovered by adversary's outside

discovery manager); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)

(defendant waived attorney-client privilege as to metadata removed in original production by

failing to timely raise objection; ordered to produce).

Searching for Others' Metadata

Jurisdictions are split on the question whether it is ethically permissible for a receiving

lawyer to search for metadata in electronic documents. Virginia has taken no position on the

issue of metadata. The ABA's Standing Committee on Ethics and Professional Responsibility

concluded that a receiving lawyer is free to look for hidden, embedded information and use

it. ABA Formal Ethics Op. 06-442, 22 Law. Man. Prof. Conduct 555 (2006); accord Maryland

Ethics Op. 2007-09, 22 Law. Man. Prof. Conduct 626 (2006) (lawyer receiving metadata may

look for and use it, and need not notify sender when it is found).

Other ethics committees, however, have advised that a receiving lawyer should refrain

from looking for embedded data in electronic documents. Alabama Ethics Op. 2007-02, 23 Law.

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Man. Prof. Conduct 219 (2007) (“mining of metadata by an attorney to uncover confidential

information would be a violation of [Rule 8.4]”); Arizona Ethics Op. 07-03, 23 Law. Man. Prof.

Conduct 641 (2007) (when receiving electronic document, lawyer has duty “not to ‘mine’ the

document for metadata”); District of Columbia Ethics Op. 341, 23 Law. Man. Prof. Conduct 501

(2007) (receiving lawyer prohibited from viewing metadata if lawyer has “actual knowledge”

that sender “inadvertently” included it); Florida Ethics Op. 06-2 (2006) (Rule 4.4(b) prohibits

lawyers from trying to obtain any information from metadata unless it was purposely and

knowingly supplied); New York State Ethics Op. 749 (2001) (looking for information revealed

in metadata constitutes “an impermissible intrusion on the attorney-client relationship in

violation of the Code” of Professional Responsibility).

Federal Rule Civil Procedure 26(b)(5)(B)

This rule requires a party receiving privileged or work product documents claiming to

have been inadvertently produced by the other side to hold those documents until a court

analyzes the situation. The Rule does not address whether the production has waived any

protection. Before discovery starts in federal litigation it may be important to obtain a court

order with a “clawback” provision specifying realistic terms and conditions for recovering

inadvertently-produced documents.

By Failure to Object

In Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005), the defendants

in an age discrimination action were ordered to produce several thousand spreadsheets “in the

manner in which [the information] was maintained.” Before producing electronic versions of the

spreadsheets, however, the defendant “scrubbed” the metadata from them. The district court

judge, on learning that the metadata had been removed, ordered the defendant to show cause why

it should not be sanctioned for disobeying the discovery order. Among other reasons the

defendant's lawyers offered for the scrubbing was that the “metadata may reveal information

extracted from a document, such as the items redacted by Defendant's counsel, as well as other

protected or privileged matters.” The court held, however, that because the defendant's lawyers

had failed to invoke any privilege objection to the production of the information, any applicable

privilege had been waived.

As to the question whether a party has an obligation generally to supply metadata in the

production of electronic documents, the court declared “that when a party is ordered to produce

electronic documents as they are maintained in the ordinary course of business, the producing

party should produce the electronic documents with their metadata intact, unless that party timely

objects to production of metadata, the parties agree that the metadata should not be produced, or

the producing party requests a protective order.”

C. Cloud-based Document Retention and Sharing

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Several authorities have held that it is proper to allow third persons outside the lawyer-

client relationship to create and/or store electronic versions of client files if the information is

protected from further disclosure.

In handling client files and records—whether in paper or electronic format—lawyers

must take reasonable measures to ensure that client confidentiality is not breached. See,

e.g., Statewide Grievance Comm. v. Paige, 2004 WL 1833462 (Conn. Super. Ct. 2004)

(unpublished) (lawyer customarily reused paper containing confidential client information as

scrap, allowing others to have access to client information in violation of Rule 1.6).

Document Storage. May a lawyer require, as a condition of the representation, that the client’s

file be kept in electronic format? Yes, as long as the client’s interests are not prejudiced by such

a condition of representation. Virginia LEO 1818. Remember e-mails and other electronic

documents are all part of the client’s file.

Document Destruction. In determining what to destroy or retain in a client’s file, the attorney

should be mindful of the Legal Ethics Committee’s recommendations in LEO 1305 that before

destroying a client’s paper file the lawyer should review that file to make sure that any

documents that may be of continued use or benefit to the client only if they are maintained in

paper form not destroyed.

The lawyer has a duty to inform or notify the client regarding destruction of the file or

client property, as per Rule 1.4. Additionally, the lawyer has a duty to maintain client

confidences while storing or disposing of client files or property as per Rule 1.6. Best form is to

have provisions in your engagement/fee agreement outlining the firm’s file retention policies as

to length of time and parameters of file storage.

Technical Support Providers. ABA Formal Ethics Op. 95-398 (1995) (lawyer considering

giving computer service provider access to client files must ensure that provider has or will

establish “reasonable procedures to protect the confidentiality” and that it “fully understands its

obligations in this regard”).

As to Google docs in particular, Massachusetts has issued an opinion that states:

“Applying its conclusions to Google docs, Lawyer's proposed Internet based data storage

solution, the Committee observes that Google has adopted written terms of service and a privacy

policy for users of Google docs (see generallyhttp://www.google.com/google-d-s/terms.html)

that reference and incorporate various other Google policies. Among other things, Google

represents that data stored on Google docs is "private" and "password protected," but can be

voluntarily shared by the user with others or published to the World Wide Web. The Committee

further observes that Google docs and other Internet based storage solutions, like many, if not

most, remotely accessible software systems and computer networks, are not immune from attack

by unauthorized persons or other forms of security breaches.” Massachusetts Opinion 12-03(5-

17-12).