presentation to the Center for Ethics & Public Integrity of the National Association of Attorneys General (NAAG) December 12, 2018

1. Ethics Issues for
State
Attorneys General
Kathleen Clark
National Association of Attorneys General
Center for Ethics & Public Integrity
Phoenix
December 12, 2018

2. context

3. I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest

4. not
general counsel
for
state government

5. I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest

6. no
universal
answer

7. organization
with authority
to direct
L’s work

8. legal
&
organizational
context

9. it’s
complicated

10. C = state agency

11. C = state

12. I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest

13. xClient = Principal
Lawyer = Agentxxxxx

14. Rule 1.2(a)
Client
-- not lawyer --
determines
objectives of representation

15. Rule 1.2(a)
Client
-- not lawyer –
decides
whether to settle

16. traditional
lawyer-client
relationship

17. defer
to
client
agency

18. other
contexts

19. Some govt lawyers
have client-like
decision-making
authority

20. act as
both
lawyer
&
client

21. Scope ¶ 18
responsibilities of
govt Ls
may include authority
that ordinarily reposes
in the C

22. Scope ¶ 18
L for govt agency
may have
authority to decide
upon settlement or
whether to appeal

23. Scope ¶ 18
These
Rules
do not abrogate
any such
authority

24. bring a case
settle a case
confess error

25. Georgia AG
whether to appeal
Perdue v. Baker - 2003

26. Massachusetts AG
whether to appeal
Secy Admin & Finance v. AG – 1975
Feeney v. Commonwealth – 1977

27. California AG
whether to represent
state officials
People ex rel Deukmejian v. Brown - 1981

28. in the public interest

29. I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest

30. disputes
between
two
state
agencies

31. A v B

32. Rule 1.7(a) – conflicts
if representation
of one C is
directly adverse to
another C

33. Rule 1.10(a)
imputed
conflicts

34. Rule 1.0(c) – “firm”
lawyers
employed in
legal department
of organization

35. state
agencies
opposing
each
other

36. Scope ¶ 18
AG may be authorized
to represent
several govt agencies
in intragovernmental
legal controversies

37. Scope ¶ 18
These
Rules
do not abrogate
any such
authority

38. OAG
may represent
2 agencies
suing
each other
CT Comm Spec.Rev. v CT FOI Comm - 1978

39. Asst AGs
represent each agency
AG
represents state

40. AG may sue official
whom AG
would normally
represent
State ex rel. Condon v. Hodges – SC 2002

41. AG suing Sec’y of State
does not violate
legal ethics rules
People ex rel Salazar v. Davidson – CO 2003

42. OAG may prosecute
state employee
whom OAG rep’s
in unrelated case
State v. Klattenhoff – HI - 1990

43. Screening
Outside counsel

44. Ethics Issues for
State
Attorneys General
Kathleen Clark
National Association of Attorneys General
Center for Ethics & Public Integrity
Phoenix
December 12, 2018