Arizona City Attorneys Association Conference, May 19, 2016
Update on Ethics
Rules for Government
Lawyers
Geoffrey Sturr
Osborn Maledon, P.A.
2016 Changes
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Comments added to ERs 1.13 and 3.5 to provide
additional guidance to government lawyers on:
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Identifying the client for conflict purposes;
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and
Advising governmental entities acting in a quasijudicial capacity and restricting ex parte contact.
New screening provisions added to ER 1.11(a)
2016 Changes
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Proposals made in January 2015 by Supreme Court
Committee chaired by Justice Timmer
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Adopted, in part, by Supreme Court in August 2015
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Effective January 1, 2016
Reason for New Comments
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Comments in the Arizona Rules of Professional
Conduct “hint[] at ‘special considerations’ that ‘may’
affect the application of the Rules to government
lawyers,” and could be revised to provide additional
guidance.
Pre-Amendment ER 1.13 Comment [9]
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Noted difficulties in “[d]efining precisely the identity of
the client and prescribing the resulting obligations of
lawyers.”
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“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.”
Pre-Amendment ER 1.13 Comment [9]
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“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.”
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“[D]uties of lawyers employed by the government . . .
may be defined by statutes and regulation. This Rule
does not limit that authority.”
New Comment [10] to ER 1.13
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“A government lawyer may have an obligation to render
advice to a government entity and constituents of a
government entity. Normally, the government entity,
rather than an individual constituent, is the client.”
New Comment [10] to ER 1.13
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“Some government lawyers may also be elected officials
or the employees of elected officials who have statutory
obligations to take formal action against individual
constituents under certain circumstances.”
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“The government lawyer, therefore, must clearly identify
the client and disclose to the individual constituents any
limitations that are imposed on the lawyer's other legal
obligations.”
New Comment [10] to ER 1.13
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“Further, where a conflict arises between a constituent
and the government entity the lawyer represents or
between constituents of the same government entity,
the lawyer must make the identity of the client clear to
the constituents and determine which constituent has
authority to act for the government entity in each
instance.”
Other Sources of Guidance on Client Identification,
Conflicts
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Restatement (Third) of Law Governing Lawyers § 97 cmt (c)
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ABA Formal Op. 97-405
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N.Y. City Ethics Op. 2004-03
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Cal. Ethics Op. 2001-156
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Conn. Ethics. Op. 03-01
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Mass. Ethics Op. 03-01
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R.I. Ethics Op. 2002-02
New Comment [6] to ER 3.5
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“At times, a government entity is required to act in a ‘quasijudicial’ capacity as part of an administrative process. In that
capacity, it may act as the decision-maker in contested
proceedings or hear appeals from the determinations of
another officer, body or agency of the same government.”
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“A government lawyer may be called upon to advise the
tribunal after another lawyer in the same office has advised
the other government constituent about the matter, or while
another attorney from the same office appears before the
tribunal.”
New Comment [6] to ER 3.5
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“Advice given by the lawyer to the tribunal does not
constitute impermissible ex parte contact, provided that
reasonable measures are taken to ensure the fairness of
the administrative process, such as using different
attorneys to advise and represent the two constituents and
screening those lawyers from one another or strictly limiting
the lawyer's advice to the tribunal to procedural matters.”
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“In no event can the same lawyer both provide advice to
the tribunal and appear before it in the same matter, even if
the advice is limited to procedural advice.”
Enhanced Screening
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New provisions in ER 1.11(a)
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Written notice of screen must “includ[e] a description of the particular
screening procedures adopted; when they were adopted; a statement by
the personally disqualified lawyer and the new firm that the agency's
material confidential information has not been disclosed or used in
violation of the Rules; and an agreement by the new firm to respond
promptly to any written inquiries or objections by the agency about the
screening procedure”
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“[P]ersonally disqualified lawyer and the new firm [must] reasonably
believe that the steps taken to accomplish the screening of material
confidential information will be effective in preventing such information
from being disclosed to the new firm and its client.”