Must assistant attorneys general assigned to a state department withdraw from defending the department's former head when the attorney general sues that former head?

Plain-English summary

Attorneys in the Legal Section of the Department of Conservation and Natural Resources, who hold appointments as Assistant Attorneys General and a Deputy Attorney General, were defending the former Commissioner of the department in civil actions brought against him in his individual and official capacities. The Attorney General of Alabama then filed suit, State of Alabama v. James D. Martin, against the former Commissioner and his official surety for alleged malfeasance or misfeasance in office, seeking roughly $400,000. Because the Attorney General has broad statutory authority (Ala. Code § 36-15-5.1) to direct deputy attorneys general and to determine the State's position in litigation, the attorneys asked whether they could continue to represent the former Commissioner.

The Disciplinary Commission answered that the situation creates a conflict of interest that mandates their withdrawal from representing the former Commissioner. The opinion explained that, as employees of the State, these attorneys owe professional responsibilities to two different public officials and two different agencies: to the Attorney General by virtue of their commissions, and to the Commissioner and the department by virtue of their assignment. Because the Attorney General's suit placed those two principals in an adversarial relationship, the duty of loyalty the attorneys owed to both was not significantly different from the duty an attorney owes a client. Applying Rule 1.7, the opinion found the Attorney General's interests "directly adverse" to the former Commissioner's, and the attorneys' representation of the former Commissioner "materially limited" by their responsibilities to the Attorney General.

Although Rule 1.7 permits representation despite a conflict where the client gives informed consent and the lawyer reasonably believes the representation will not be adversely affected, the opinion invoked the Comment's "disinterested lawyer" standard: when a disinterested lawyer would conclude the client should not agree to the representation, the lawyer cannot properly ask for that consent or proceed on it. The Commission concluded a disinterested lawyer would have to find the representation improper despite any consent from the Commissioner, the Attorney General, or both, and that the circumstances, though arising through no fault of the attorneys, mandated termination of their representation of the former Commissioner and their withdrawal as counsel of record.

Currency note

This opinion was issued in 1993, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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: Must AG-commissioned attorneys assigned to an agency withdraw from defending its former head when the AG sues that official?

A: Per the opinion, yes; the situation creates a conflict of interest that mandates withdrawal from representing the former Commissioner.

Q: Why is this a conflict if the client is really "the people of Alabama"?

A: The opinion concluded the duty of loyalty owed to both public officials is not significantly different from the duty owed a client, and the Attorney General who directs the attorneys is now directly adverse to the former Commissioner they defend.

Q: Can the officials just consent to waive the conflict?

A: No. The opinion applied the "disinterested lawyer" standard and concluded a disinterested lawyer would find the representation improper despite consent from the Commissioner, the Attorney General, or both.

Background and rules framework

The opinion interprets Rule 1.7 of the Alabama Rules of Professional Conduct (Model Rule 1.7, conflict of interest; directly adverse and materially limited representation, and the Comment's "disinterested lawyer" limit on consent). It reads that rule against the Attorney General's statutory authority under Ala. Code § 36-15-5.1 to direct deputy attorneys general and set the State's litigation position.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Ala. R. Prof. C. 1.7 (conflict of interest; general rule and "disinterested lawyer" Comment)

Statutes:

• Ala. Code § 36-15-5.1 (1975) (deputy attorneys general serve at the pleasure of, and under the direction of, the Attorney General)

Cases:

• State of Alabama v. James D. Martin (the underlying civil action against the former Commissioner)

See also

• AL Ethics Op. 1993-22: grand jury information used in a civil suit
• AL Ethics Op. 1993-14: firm as conservator for an agency's wards

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-13/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-13.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-93-13

QUESTION:

"Attorneys in the Legal Section of the Department of Conservation and Natural Resources are presently defending former Commissioner ______ in several civil actions brought against him in his individual and official capacities as Commissioner of said Department.

The above noted attorneys are as follows: __, Attorney IV, Assistant Attorney General; _, Attorney III, Assistant Attorney General; ___, Deputy Attorney General.

On June 1, 1993, State of Alabama, Plaintiff v. __, and _, Defendants, CV-93-1382 was filed in the Circuit Court of County, Alabama. This action is brought by the Attorney General of the State of Alabama against ___ and his official surety for alleged malfeasance and/or misfeasance in office and seeks approximately $400,000.00 in damages.

Under Section 36-15-5.1 Code of Alabama 1975, all newly hired deputy attorneys general serve at the pleasure of the Attorney General. The Attorney General has discretion to determine the compensation of deputy attorneys general from among the salary ranges set by the State Personnel Board. More importantly, the Attorney General has broad authority to direct and determine the State's position in litigation affecting the State, its agencies, departments and officials.

A legal opinion is requested from the Disciplinary Commission as to whether or not the attorneys in the Legal Section of the Department of Conservation and Natural Resources may continue to represent former Commissioner __ in light of State of Alabama v. ____."

ANSWER:

The fact situation which you describe places you in circumstances which creates a conflict of interest and mandates your withdrawal from representation of the former commissioner of Conservation and Natural Resources.

DISCUSSION:

The attorneys in the Legal section of the Department of Conservation and Natural Resources, as employees of the State of Alabama, have professional responsibilities to two different public officials and two different state agencies. By virtue of being Assistant Attorneys General and Deputy Attorney General, they are responsible to the Attorney General and his office. By virtue of being assigned to and employed by the Department of Conservation and Natural Resources, they are also responsible to the Commissioner of Conservation and the State agency which he heads. As a result of the civil action, State of Alabama v. ______, one of the public officials and state agencies with whom you have employment and professional responsibilities, is in an adversarial relationship with the other public official and state agency to whom you owe also a duty of loyalty and responsibility. While arguably neither public official is your client, your client being the public or the people of the State of Alabama, the duty of loyalty which you owe to both public officials would not appear to be significantly different from the duty an attorney owes to his client.

Rule 1.7 of the Rules of Professional Conduct of the Alabama State Bar provides as follows:

"Rule 1.7. Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) Each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents after consultation."

It conclusively appears that based on the fact situation presented that the interests of the Attorney General are "directly adverse" to the interests of the former Commissioner of Conservation. It equally appears that your representation of the former Commissioner of Conservation may be "materially limited" by your responsibilities to the Attorney General. Rule 1.7 permits representation in spite of the conflict if the client gives informed consent and if the attorney has a good faith belief that the representation will not be adversely affected. The Comment to Rule 1.7 provides in pertinent part as follows:

"A client may consent to representation notwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent."

The Disciplinary Commission is of the opinion that the circumstances here presented are such that a "disinterested lawyer" would have to conclude that the representation is improper despite the consent of the Commissioner of Conservation or the Attorney General or both. Therefore, it is further the opinion of the Disciplinary Commission that the circumstances here presented, while they occurred through no fault of your own, create a conflict of interest which mandates the termination of your representation of the former Commissioner of Conservation and your withdrawal as counsel of record in the civil action, State of Alabama v. James D. Martin.

LGK/vf

1/21/93