Municipal Law: Ethical Challenges for Attorneys Navigating Local Government Recusal Law, Conflicts of Interest and Government Immunity

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THURSDAY, MAY 10, 2012

Presenting a live 90-minute webinar with interactive Q&A

Michael P. Donaldson, Shareholder, Carlton Fields, Tallahassee, Fla.

Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert, Honolulu

Patricia E. Salkin, Associate Dean and Director, Government Law Center, Albany Law School, Albany, N.Y.

Michael T. Kamprath, Atty, Thresher & Thresher, Tampa, Fla.

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ETHICAL CHALLENGES FOR MUNICIPAL ATTORNEYS: NAVIGATING LOCAL GOVERNMENT RECUSAL LAWS, CONFLICTS OF INTEREST AND GOVERNMENT IMMUNITY May 10, 2012

Panelists Michael P. Donaldson

Carlton Fields, Tallahassee, Fla. mdonaldson@carltonfields.com (850) 513-3613

Robert H. Thomas Damon Key Leong Kupchak Hastert, Honolulu rht@hawaiilawyer.com (808) 531-8031

Patricia E. Salkin Albany Law School, Albany, N.Y. psalk@albanylaw.edu (518) 445-2351

Michael T. Kamprath Thresher & Thresher, Tampa, Fla. Michael.Kamprath@thresherpa.com (813) 229-7744

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Program Agenda

Recusal/Conflict of Interest Laws for Government Lawyers after Nevada Comm’n on Ethics v Carrigan

Who is the Client of the Government Lawyer When Answering Recusal Questions

Ethical Issues and Government Immunity for Outside Counsel - Filarksy v Delia

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Nevada Commission on Ethics v Carrigan Background

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Nevada Commission on Ethics v Carrigan

Conduct of Local Official

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Nevada Commission on Ethics v Carrigan

Application of State Ethics Law

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Nevada Commission on Ethics v Carrigan

Advice of Government Lawyer

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Nevada Commission on Ethics v Carrigan

Nevada Supreme Court Decision

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Nevada Commission on Ethics v Carrigan

U.S. Supreme Court Decision

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Practical Ethics Issues from Carrigan Differences Between Legislative and Judicial

ethics?

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Practical Ethics Issues from Carrigan

Who is the Client of the Government Lawyer?

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Practical Ethics Issues from Carrigan

What is the Duty Owed by the City Lawyer to a City Council Member?

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Advising Municipal Clients

When is Disclosure Enough?

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Advising Municipal Clients

When is Recusal Required?

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Advising Municipal Clients

When is Outside Counsel Appropriate?

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Ethical Considerations For Government Lawyers and Outside Counsel

• Is the client of the outside counsel different than the client of the in-house government lawyer?

• To whom does outside counsel report if there is an in-house government counsel?

• What information is protected as confidential in the government attorney-client relationship?

• Is more or less protected with outside counsel?

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Filarsky v Delia

Background Facts Decision of the 9th Circuit Argument Before the U.S. Supreme Court ABA Amicus Brief/ABA Resolution

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Background Facts

Filarsky, a private attorney, was retained by the City of Rialto, California’s fire department to undertake an employment investigation of Firefighter Delia.

The City believed that Delia was abusing his sick leave and had observed him purchase building materials while out on sick leave.

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Background Facts (cont.)

Interview attendees: Delia (firefighter) Delia’s attorney Filarsky Mike Peel (fire department official) Frank Bekker (fire department official)

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Background Facts

Delia acknowledged that he had purchased the supplies but claimed he had not yet done the work on his home.

During a break, Filarsky met with Peel, Bekker, and Fire Chief Stephen Wells.

Filarsky proposed resolving the dispute by verifying that Delia had not done any work by asking Delia to produce the materials.

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Background Facts

Interview Resumes. Filarsky requests permission for Peel to enter

home to view mateirals. On advice of counsel, Delia refused. Filarsky requests Delia to bring matierals

outside of home. On advice of counsel, Delia refused.

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Background Facts

Filarsky ordered Delia to produce the materials.

Delia’s counsel objected that it would violate the Fourth Amendment.

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Background Facts

Delia’s counsel’s threats as reported by Supreme Court: “We might quite possibly find a way to figure if we can name you

Mr. Filarsky. … If you want to take that chance, you go right ahead.”

“Everybody is going to get named, and they are going to sweat it out as to whether or not they have individual liability. . . . You order him and you will named and that is not an idle threat.”

“Whoever issues that order is going to be named in the lawsuit.” “We will seek any and all damages including individual liability.” “We are coming if you order this.” “Makre sure the spelling is clear [in the order] so we know who to

sue.”

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Background Facts

Immediately following the interview, Peel and Bekker followed Delia to his home.

Delia, his attorney and his union representative went into Delia’s house and brought out the four rolls of insulation and placed them on the lawn.

Peel and Bekker remained in the car and thanked Delia for showing them.

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Parties/Cause of Action

Delia brought 42 USC 1983 action against: City of Rialto Fire Department Chief Wells Peel Bekker Filarsky 10 other unidentified individuals

Alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment Rights.

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District Court

Granted Summary Judgment to all individual defendants concluding they were protected by qualified immunity.

The court held that Delia had “not demonstrated a violation of a clearly established constitutional right” because “Delia was not threatened with insubordination or termination if he did not comply with any order given and none of these defendants entered his house.”

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Ninth Circuit

Affirmed with respect to all defendants but Filarsky.

Concluded the order violated the Fourth Amendment but Delia “had not demonstrated that a consittutional right was clearly established as of the date of Chief Wells’s order, such that defendants would have known that their actions were unlawful.”

With respect to Filarsky, because he was a private attorney, and not a city employee, he was not entitled to qualified immunity.

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Supreme Court

Question presented by petition for writ for cert. Whether a lawyer retained to work with

government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee.

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Supreme Court

Question presented in opinion Whether an individual hired by the government to

do its work is prohibited from seeking such immunity, solely because he works for the government on something other than a permanent or full time basis.

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Supreme Court

Holding A private individual temporarily retained by the

government to carry out its work is entitled to seek qualified immunity from suit under S 1983.

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Supreme Court

Historical basis for qualified immunity at common law. Smaller government in both size and reach in

1871 part-time postmaster Part time wharfmaster, Individuals engaged in law enforcement including

private individuals aiding in a posse comitatus. Abraham Lincoln as prosecutor the Attorney General took private cases

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Supreme Court

Historical Basis “Common law did not draw a distinction between

public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.”

“immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.”

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Supreme Court

Purposes for Qualified Immunity Avoiding unwarranted timidity on behalf of those

engaged in government business is the paramount purpose of qualified immunity.

Immunity given to both public employees and private individuals hired by the government insures that all individuals are not deterred by the threat of lawsuits from entering public service.

Governments have an interest in insuring that their employees are not distracted by ongoing litigation against non-public employees sued under Section 1983.

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Supreme Court

Ginsburg, J. concurring Qualified immunity only applies if defendant did

not know or should not have known “that his conduct violated a right ‘clearly established’ at the time of the episode in the suit.”

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Supreme Court

Sotomayor, J. concurring “There may yet be other circumstances in which

immunity is warranted for private actors. The point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law.”

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Supreme Court

What’s next? Opinion: “In light of the foregoing, the judgment of

the Court of Appeals denying qualified immunity to Filarsky is reversed.”

Ginsberg: “Because the Ninth Circuit did not consider the application of that standard [whether Filarsky knew or should have known that the conduct violated a clearly established right] to Filarsky, the matter, as I see it, may be pursued on remand.”

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Coda

Filarsky recently wrote a letter to Delia following the decision by SCOTUS. It stated in full:

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Model Rules: Scope [18] [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 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.

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Model Rule 1.1

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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Model Rule 1.2 (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's

decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

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Model Rule 1.13 commentary [9]

Government Agency [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 or 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.

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Fed. R. Evid. 501

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege

regarding a claim or defense for which state law supplies the rule of decision.

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Model Rule 6.1

• ABA’s MODEL RULES encourage lawyers to provide representation to public sector clients, which can include: [The] delivery of legal services at no fee or substantially reduced fee to . . . governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate. …”MODEL RULES OF PROF’L CONDUCT R. 6.1 (emphasis added).

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Additional Ethical Considerations

Ethical Issues with a Section 1983 Suit Against an Outside Counsel to Government lawyers do not owe duties to non-client third

parties Ordinarily, an attorney would not be liable to a

party opposing his or her client

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