May a furloughed federal government lawyer advise the agency about employee furloughs after the agency gives advance consent?
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This page answers the general question as of 2013. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A federal department planned intermittent furloughs while requiring its civilian lawyers, who were also subject to furlough, to advise management and handle employee appeals and grievances. The department's secretary gave advance written consent conditioned on each lawyer confirming the elements of Rule 1.7(b) and ceasing the work if circumstances materially changed.
The Committee found no direct adversity between clients because the department was the only client. A lawyer could nevertheless have a personal-interest conflict because the lawyer opposed being furloughed and might benefit from successful challenges by other employees.
That conflict was consentable if the lawyer reasonably believed competent and diligent representation remained possible, the representation was lawful, no client-versus-client claim was involved in the same proceeding, and the department gave informed written consent. The Committee regarded the department, with substantial legal resources, as a sophisticated client capable of effective consent.
The analysis would change if the lawyer challenged the lawyer's own furlough. The department's existing consent would no longer apply. Continued furlough-related work would require the lawyer reasonably to believe competent and diligent representation remained possible, disclose the changed circumstances, and obtain new informed consent confirmed in writing.
The department's clearance process also satisfied Rule 5.1 on the facts presented. Lawyers had to identify potential conflicts, discuss their analysis with supervisors, and be cleared before receiving work or access to case files. A disqualified lawyer's personal-interest conflict would not be imputed where the clearance and access controls prevented a significant risk of materially limiting the remaining lawyers' representation.
In practice
Under this opinion, an agency-wide advance consent may address a shared personal-interest conflict, but its effectiveness depends on each lawyer's reasonable assessment and the continuing accuracy of the disclosed circumstances. The described screening and clearance controls also supported the supervisor's Rule 5.1 obligations.
Common questions
Q: Is a furloughed government lawyer automatically adverse to the agency?
A: No. The opinion found one client and no direct adversity, while recognizing a possible personal-interest conflict under Rule 1.7(a)(2).
Q: Can the agency consent in advance?
A: Yes. The department's informed written consent was effective when the lawyer also satisfied the other Rule 1.7(b) conditions.
Q: What if the lawyer challenges the lawyer's own furlough?
A: The existing consent would cease to apply. Continued representation would require a renewed reasonable-belief determination, disclosure of the change, and new informed written consent.
Q: Did the clearance procedure satisfy the supervising lawyer's duties?
A: Yes on the described facts. The process required conflict review, supervisor discussion, clearance before assignment, and restricted access for lawyers who were not cleared.
Q: Is one lawyer's personal-interest conflict imputed to the whole department?
A: Not when it presents no significant risk of materially limiting the remaining lawyers and the disqualified lawyer is kept from the work and related information.
Background and rules framework
Rule 1.7(a) identifies the potential personal-interest conflict, and Rule 1.7(b) supplies the conditions for consent. Rule 5.1 governs supervisory measures, while Rule 1.10(a)(1) addresses whether a personal-interest conflict is imputed to other lawyers in the agency.
Citations and references
Connecticut Rules of Professional Conduct:
- Rules 1.0(c), 1.0(f), 1.0(j), 1.7(a), 1.7(b), 1.10(a)(1), and 5.1
Other opinions cited:
- Philadelphia Bar Association Professional Guidance Committee Opinion 2013-3 (Apr. 2013)
See also
- NY State Bar Op. 968: Government furlough conflict
- CT Informal Op. 14-06: Limited Chapter 7 conflicts
- SBNM Op. 1990-1: Municipal attorney conflict
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 13-06
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