Can a lawyer who represents a tribal entity also represent someone with a tort claim against that entity when the United States, not the entity, would pay any damages?

Plain-English summary

Under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450, tribal entities perform functions previously handled by the federal government under "self-determination contracts," and when they do, the United States is liable for their torts under the Federal Tort Claims Act and the Attorney General defends the action. The Committee was asked whether a lawyer representing a tribal entity may also represent a client with a tort claim against the entity or its employees, a question that arises most often with medical malpractice from a tribal health clinic or torts from the entity's work as landowner or contractor.

The opinion concluded that representing the tort claimant is a conflict of interest under Alaska R.P.C. 1.7. Representing both a tort claimant and the tortfeasor is an obvious conflict; the only fact distinguishing these situations is that the tribal entity and its employees are statutorily insulated from liability. The opinion reasoned that the existence or absence of actual liability should not govern whether a conflict exists, because Rule 1.7 protects clients from problems created by competing loyalties.

Those competing loyalties, the opinion explained, could affect the choice of claims, discovery, witnesses, and the handling of witnesses at trial. The opinion concluded that the conflict exists regardless of any liability insurance or the particular facts, though it may be stronger in some cases (for example, where the conduct may have exceeded the scope of the self-determination contract). The particular facts may bear on whether the client can consent under Rule 1.7(a)(2) and (b)(2).

Currency note

This opinion was issued in 2000, before Alaska's adoption of the 2009 revisions to the Alaska 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 Treat this page as historical context, not current guidance.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: Could a lawyer represent both a tribal entity and someone suing it over the entity's conduct?

A: No. The opinion concluded that this is a conflict of interest under Rule 1.7 because of the competing loyalties between the two clients.

Q: Does it matter that the United States, not the tribal entity, pays the damages?

A: No. The opinion reasoned that the entity's statutory insulation from liability does not eliminate the conflict, because the existence or absence of actual liability should not govern whether competing loyalties exist.

Q: Could the conflict be waived by consent?

A: The opinion concluded a conflict should exist in every such case but noted that the particular facts may affect whether the client can consent under Rule 1.7(a)(2) and (b)(2).

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.7 (Model Rule 1.7, the general conflict-of-interest rule), quoting both its bar on representation directly adverse to a current client and its bar on representation materially limited by the lawyer's responsibilities to another client. It applied that rule against the statutory framework of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450f, and the Federal Tort Claims Act, 28 U.S.C. 2674.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Alaska RPC 1.7 (conflict of interest: general rule)

Statutes:

• Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450, 450f
• Federal Tort Claims Act, 28 U.S.C. 2674

See also

• Alaska Ethics Op. 99-3: Insurer In-House Counsel Representing Insureds
• Alaska Ethics Op. 2012-3: Closely-Held Organization Owner Conflicts
• Alaska Ethics Op. 2021-1: Multiple Criminal Defendants Conflict
• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2000-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2000-1
MAY AN ATTORNEY REPRESENTING TRIBAL ENTITIES
REPRESENT TORT CLAIMANTS HARMED BY THOSE ENTITIES
IF THE U.S. IS LIABLE FOR ANY DAMAGES?
The Indian Self-Determination and Education Assistance Act, 25 U.S.C.
§450, provides opportunities for Native American tribal entities to perform
certain functions performed previously by the federal government. The tribal
entities perform these functions under “self-determination contracts” with a
government agency, such as the Indian Health Service, Public Health Service or
Bureau of Indian Affairs. 25 U.S.C. §450f. When a tribal entity is acting under
a self-determination contract, the United States is liable for its torts as
provided in the Federal Tort Claims Act, and the Attorney General defends the
action. 25 U.S.C. §450f(c)(1); 28 U.S.C. §2674; Interior and Relations Agencies
Appropriations Act of 1990, Pub. L. 101-512.
The question presented is whether an attorney representing a tribal
entity may represent a client with a tort claim against the tribal entity or its
employees under a self-determination contract. The question commonly arises
in two contexts. The first is a medical malpractice claim arising from a tribal
entity-operated health clinic. The second is a tort caused by the tribal entity’s
actions as a landowner or construction contractor.
The committee concludes that representation of the tort claimant is a
conflict of interest as set out in Alaska R. P.C. 1.7.
THE GOVERNING RULE
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.

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(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.
When
representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of
the implications of the common representation and the
advantages and risks involved.
(c) A lawyer shall act with reasonable diligence in
determining whether a conflict of interest, as described in
paragraphs (a) and (b) of this rule, or Rules 1.8, 1.9 and 1.10
exists.
DISCUSSION
Representation of both a tort claimant and the tortfeasor is an obvious
conflict of interest under the Alaska R.P.C. 1.7. The comment to Rule 1.7
provides:
As a general proposition, loyalty to a client prohibits
undertaking representation directly adverse to that client
without that client's consent. Paragraph (a) expresses that
general rule. Thus, a lawyer ordinarily may not act as
advocate against a person the lawyer represents in some
other matter, even if it is wholly unrelated.
This obvious conflict of interest can be distinguished from our two hypothetical
situations by only one fact. The tortfeasors in our situations—the tribal entity
and its employees—are insulated by statute from liability for torts committed
within the scope of the self-determination contract. The existence or absence
of actual liability alone, however, should not govern whether there is a conflict
of interest.
Rule 1.7 protects clients from problems created by competing loyalties.
The comment to Alaska R.P.C. 1.7 provides:

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Loyalty to a client is also impaired when a lawyer
cannot consider, recommend or carry out an appropriate
course of action for the client because of the lawyer's other
responsibilities or interest. The conflict in effect forecloses
alternatives that would otherwise be available to the client.
Despite any direct liability, representation of the tortfeasor and the tort
claimants will result in competing loyalties. These competing loyalties could
affect the choice of claims made, discovery, witnesses, and the handling of
witnesses at trial, particularly during cross-examination, thereby interfering
with the attorney’s exercise of professional judgment.
The problem of competing loyalties will exist regardless of any liability
insurance or the particular facts of the claim. The conflict may be stronger in
some cases than others, however. The conflict is stronger, for example, if there
is a question that the tortfeasor’s conduct exceeded the scope of the selfdetermination contract. A conflict nevertheless should exist in every case. The
particular facts, however, may affect whether the client can consent to the
conflict under Rule 1.7(a)(2), (b)(2).
In sum, the committee concludes that representing both a Native
American tribal entity and a person with a tort claim arising out of the tribal
entity’s conduct under a self-determination contract with the U.S. government
is a conflict of interest as set out in Alaska R.P.C. 1.7.
Approved by the Alaska Bar Association Ethics Committee on December 2, 1999.
Adopted by the Board of Governors on January 21, 2000.

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