examines the key legal ethics issues facing state Attorneys Generals, including 1) identifying their client 2) determining decision-making vis-à-vis their clients 3) conflicts of interest

1. Ethics Issues for
State
Attorneys General
Kathleen Clark
National Attorneys General Training and Research Institute (NAGTRI)
Charleston
November 29, 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 Attorneys General Training and Research Institute (NAGTRI)
Charleston
November 29, 2018