This document outlines topics related to professional responsibility and ethics for government lawyers, specifically FDIC lawyers. It discusses identifying government lawyers' clients, handling conflicts of interest, obligations to supervisors, standards for seeking future employment, and post-employment restrictions. The document uses examples involving an FDIC lawyer, Joan, assigned to two bank receiverships to illustrate how various rules apply in the government context.

1. Professional Responsibility
& Ethics
for
FDIC Lawyers
Kathleen Clark
Washington University in St. Louis
June 2015
1

2. 2 Handouts:
Outline & Problems
Supplementary Materials

3. Goals

4. Topics
• Government Lawyering
• Conflicts of Interest
• Supervisory / Subordinate Lawyers
• Standards for Whistleblowing Lawyers
• Authority of Lawyers & Clients
• Revolving Door
• No-Contact Rule

5. Theme
how
professional rules
apply to
government lawyers

6. and . . .
meet
CLE
requirements

7. Who
is
your
client
?

8. Identifying
Joan’s
client

9. assigned to assist DRR
re FDIC’s appointment
as receiver for
Bank 1
&
Bank 2

10. Identify
Joan’s
client(s)

11. Possibilities
Indiv. receiverships for Banks 1 & 2
DRR
Deposit Insurance Fund
FDIC
Federal government
People of the United States
The public interest

12. Possibilities
Indiv. receiverships for Banks 1 & 2
DRR
Deposit Insurance Fund
FDIC
federal government
people of the United States
the public interest

13. Possibilities
Indiv. receiverships for Banks 1 & 2
DRR
Deposit Insurance Fund
FDIC
federal government
people of the United States
the public interest

14. Possibilities
Indiv. receiverships for Banks 1 & 2
DRR
Deposit Insurance Fund
FDIC
federal government
people of the United States
the public interest

15. DC Rule 1.6(k)

16. govt lawyer’s client
is
agency that employs lawyer
unless
expressly provided
by
law, regulation, or order

17. Most
state rules
don’t identify
govt lawyer’s
client

18. significance
of
client
identity

19. control
confidentiality
individual v. organization
conflicts of interest

20. control
confidentiality
individual v. organization
conflicts of interest

21. Examine
structure of authority
in
specific
governmental
context

22. Examine
structure of authority
re
DRR &
receiverships for
Bank 1 & Bank 2

23. Who
can make decisions
about
the objectives of
Joan’s
representation?

24. explicitly
different
standards
for
public & private sector
lawyers

25. explicitly
different
standards
for
public & private sector
lawyers

26. Rule 3.8
Special
Responsibilities
of a
Prosecutor

27. explicitly
different
standards
based on
nature of
client

28. A
Possible
Conflict

29. Bank 1 sold
a 25%
participation interest
in loan
to Bank 2

30. Borrower still owes $4m
FDIC = Receiver for Bank 1
Receiver for Bank 1 wants
to sell loan for $3m

31. FDIC = Receiver for Bank 2
Receiver for Bank 2
objects to sale for $3m

32. Joan
assigned to represent
Receiver for Bank 1
&
Receiver for Bank 2
objects to sale for $3m

33. May Joan
represent
both
Receiver for Bank 1
&
Receiver for Bank 2
?

34. Conflict of Interest Rules
1.7
1.8
1.9
1.10
1.11

35. DC Rule 1.7(a)

36. DC Rule 1.7(a)

37. DC Rule 1.7(a)
A lawyer
shall not advance
two or more
adverse positions
in the same matter.

38. DC Rule 1.7(a)
no
no
exceptions
no
informed consent

39. How would
DC Rule 1.7(a)
apply
to
Joan
?

40. DC Rule 1.7(a)
A lawyer
shall not advance
two or more
adverse positions
in the same matter.

41. Are the
Receiver for Bank 1
&
Receiver for Bank 2
separate clients?

42. DC Rule 1.7(a)
A lawyer
shall not advance
two or more
adverse positions
in the same matter.

43. TX Rule 1.06(a)
A lawyer
shall not
represent
opposing parties
in the same litigation.

44. TX Rule 1.06(a)
no
no
exceptions
no
informed consent

45. TX Rule 1.06(a)
A lawyer
shall not
represent
opposing parties
in the same litigation.

46. How does
TX Rule 1.06(a)
apply
to
Joan
?

47. TX Rule 1.06(b)
(b)
what = COI
(c)
when COI permitted

48. TX Rule 1.06(b)
(1) mmmmmmmmmmm
materially & directly adverse
substantially related
(2) mmmmmmmmmmm
adversely limited by
responsibilities to other C

49. TX Rule 1.06(c)
(1) mmmmmmmmmmm
representation will not
be materially affected
(2) mmmmmmmmmmm
informed consent

50. How would
TX Rule 1.06(b) & (c)
apply
to
Joan
?

51. Supervisory
&
Subordinate
Lawyers

52. Supervisor
instructs Joan to
represent
Receivers for Bank 1 & 2
despite
conflict of interest

53. Does
supervisor’s instruction
insulate
Joan
from
professional discipline
?

54. DC Rule 5.2(a)

55. DC Rule 5.2(a)
Lawyer is
bound by Rules
even if acting
at someone else’s
direction.

56. DC Rule 5.2(b)
subordinate lawyer
acting in accordance w/
supervisory lawyer’s
reasonable resolution
of arguable question

57. DC Rule 5.2(b)
subordinate lawyer
acting in accordance w/
supervisory lawyer’s
reasonable resolution
of arguable question

58. How
would
DC Rule 5.2
apply
to
Joan
?

59. Would
analysis differ if
FDIC had formal policy
that
“no managing attorney is
engaged in practice of law”
?

60. Joan thinks her
supervisor is wrong.
What can Joan do?

62. Designated Agency Ethics Officer
General Counsel
Inspector General
state bar ethics hotline
another lawyer

63. Maryland Rule 1.13
. . . then L shall
refer matter to higher internal authority
. . .
• ask for reconsideration
• suggest separate legal opinion
• refer matter to higher authority within or

64. Maryland Rule 1.13
. . .
& L may
disclose externally if:
–highest authority insists on/fails to address
–clear violation of law
–reasonably certain to result in
–substantial injury to organization

65. DC Rule 1.6
“confidence”
protected by A-C privilege
“secret”
gained in professional relationship &:
– C requested be held inviolate
or
– disclosure would be embarrassing or
detrimental to C

66. DC Rule 1.6
(e)(6) mmmmmmmmmmmmmmmmmm
to secure legal advice about
L’s compliance w/ law
(e)(2)(b) mmmmmmmmmmmmmmmmm
If govt L:
when permitted or authorized by law
(e)(1) mmmmmmmmmmmmmmmmmm
with C’s informed consent

67. Differences
between
government
&
private sector
lawyers

68. TX Rule 1.05

69. Differences
between
government
&
private sector
clients

70. conflicts of interest
for
lawyers
practicing
in a
‘firm’

71. May
Joan’s co-worker, Bob,
represent
Receiver for Bank 2
?

72. DC Rule 1.10(a)
If 1.7 or 1.9 prohibits
1 L in firm from rep’g C,
then all Ls in firm
are prohibited
from rep’g C . . .

73. DC Rule 1.10(a)
If 1.7 or 1.9 prohibits
1 L in firm from rep’g C,
then all Ls in firm
are prohibited
from rep’g C . . .

74. Should
imputed disqualification
apply to
government
lawyers
?

75. DC Rule 1.0(c)
“firm”
does not
include
a government agency

76. DC Rule 1.0(c)
“firm”
does not
include
a government agency

77. Division of authority
between
lawyer
&
client

78. DC Rule 1.2(a)

79. DC Rule 1.2(a)
C decides:
objectives
whether to accept
settlement / plea

80. DC Rule 1.2(d)
govt L’s
authority & control
may be expanded
beyond 1.2(a) limits

81. Is Bob
required to pursue
the objection
stated by
Receiver for Bank 2
?

82. Revolving Door

83. Seeking future employment
18 USC § 208
“person or organization
with whom he is
negotiating or has any
arrangement concerning
prospective employment”

84. Seeking future employment
18 USC § 208
“person or organization
with whom he is
negotiating or has any
arrangement concerning
prospective employment”

85. Seeking future employment
STOCK Act
Notification & Recusal
Requirements
negotiating or has any
arrangement concerning
prospective employment”

86. 3 Handouts:
Course Outline & Problems
Supplementary Materials
Appendix – Missouri Rule 4-1.6

87. Post-Employment Restrictions
Model Rule 1.11
(Texas 1.10)
18 USC § 207

88. Post-Employment Restrictions
18 USC § 207
Model Rule 1.11
(Texas 1.10)

89. 18 U.S.C. § 207
Trigger:
– “participated personally and substantially”
– under official responsibility during last year
in govt.
Prohibition:
Don’t communicate or appear before
federal government in connection with that
matter
No imputation of conflict

90. Texas Rule 1.10
Trigger:
“participated personally and substantially
as a public officer or employee”
Prohibition:
Don’t represent a private client in
connection with that matter
• Imputation of conflict to firm unless L is
screened & agency notified

91. Keep
a list
of
“particular matters
involving specific parties”

92. DC Rule 4.2(a)
No-Contact Rule

93. DC Rule 4.2(a)
don’t communicate
w/ person
known to be rep’d

94. DC Rule 4.2(a)
unless
other L’s consent
or
authorized by law

95. DC Rule 4.2(b)
may communicate
w/ nonparty employee

96. DC Rule 4.2(b)
must disclose
L’s identity
&
adversity

97. Samantha receives
phone call from
Bank 3’s counsel & SVP

98. One week later
Samantha receives
phone call from
Bank 3’s SVP

99. May
Samantha speak
directly with
Bank 3’s SVP
?

100. Six months later
Samantha receives
phone call from
Bank 3’s SVP re:
Bank Secrecy Act

101. May
Samantha speak
directly with
Bank 3’s SVP
?

102. Is
it
the same
matter
?

103. Questions?

104. Professional Responsibility
& Ethics for
FDIC Lawyers
Kathleen Clark
kathleen_clark@mac.com
314-827-4081
104