If a lawyer represents one government agency, can she or her firm also represent a private client against a different agency of the same government in an unrelated matter?

Plain-English summary

The committee addressed whether a lawyer who performs legal services for one government entity is disqualified from representing private parties against other government entities within the same jurisdiction. It started from the proposition that when a lawyer is engaged to represent a government entity, a lawyer-client relationship arises and the general conflict rules apply just as they do for private clients. Under Rule 1.7(a), the lawyer may not take a position directly adverse to her own government client without the informed consent of both clients.

The committee held that the analysis turns first on the identity of the government client. Like any other organizational client, the government client's identity is decided in the first instance between the lawyer and the officials authorized to speak for the government, in accordance with the client-autonomy precepts of Rule 1.2, ideally memorialized in writing at the outset. There is a limit, however: the lawyer "may not, by agreeing to a narrow definition of the government client, seek to defeat the reasonable expectation of her other clients . . . that they will get a conflict-free representation from their lawyer." Where there is no written agreement, the identity of the government client may be inferred from the reasonable understandings and expectations of the lawyer and responsible officials, drawing on functional factors such as how the entity is legally defined and funded, whether it has independent authority over the matter, and the matter's general importance to the government as a whole. Uncertainty should be resolved in favor of disclosure.

Even when two government entities are not the same client, the committee held, the lawyer must still satisfy Rule 1.7(b): she must assure herself that neither representation will be "materially limited" by the other. Applying this to two hypotheticals, the committee concluded that a lawyer for a school district could represent citizens opposing a county planning commission without seeking consent, but that representing a county health department while a partner sued the county sheriff's office (both represented by the county counsel) could present a material limitation requiring consent, and in some cases a nonconsentable conflict. A concurrence argued that suits against one part of a government entity are always directly adverse to other parts and that notice to and consent from a government official should always be required.

Currency note

This opinion was issued in 1997, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which restructured Rule 1.7 into its current "concurrent conflict of interest" and informed-consent framework. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who works for a government agency sue that same agency for a private client?

A: No, not without informed consent. The committee held that Rule 1.7(a) bars a lawyer from taking a position directly adverse to her own government client without the consent of both clients.

Q: Can the lawyer sue a different agency of the same government?

A: The opinion concluded that she may, in an unrelated matter, as long as the two entities are not regarded as the same client and her representation of neither is materially limited by the other under Rule 1.7(b).

Q: How is the "government client" identified for conflict purposes?

A: The committee held that the government client's identity is decided functionally between the lawyer and authorized government officials, considering how the entity is defined, funded, and empowered and the matter's importance to the government as a whole; uncertainty is resolved in favor of disclosure.

Q: Can the lawyer just define the government client narrowly to avoid a conflict?

A: No. The opinion stated the lawyer may not adopt a narrow definition of the government client in order to defeat her other clients' reasonable expectation of a conflict-free representation.

Background and rules framework

The opinion interpreted Model Rule 1.7 (conflict of interest), applying Rule 1.7(a) to directly adverse representation of a government client and Rule 1.7(b)'s material-limitation standard to representations involving separate government entities. It drew on Rule 1.2 (client autonomy in defining the scope and identity of the representation) and Rule 1.13 (organization as client) in analyzing the identity of the government client. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule; direct adversity and material limitation)
• MR 1.2 (scope of representation; client autonomy)
• MR 1.13 (organization as client)

Other opinions cited:

• ABA Formal Op. 95-390 (1995): conflicts of interest in the corporate-family context
• ABA Formal Op. 93-377 (1993): positional conflicts of interest
• D.C. Bar Legal Ethics Op. 268 (1996): framework for identifying the government client

See also

• ABA Formal Op. 93-377: Positional conflicts of interest
• ABA Formal Op. 509: Confidential government information and disqualification
• ABA Formal Op. 91-361: Representation of a partnership as an entity client
• RI EAP Op. 2002-02: Municipal Attorney's Client Is the Council, Not Individual Members: Billing-Record Confidentiality
• RI EAP Op. 2010-04: Attorney for a Municipality May Not Also Sue Its School Department Absent Consent

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 97-405.pdf