When a municipal lawyer advised a department head in his official capacity, can the lawyer later oppose that former official in his own suit against the city and use his deposition to impeach him?

Plain-English summary

A municipal attorney accompanied a department head to a deposition in a lawsuit between two private parties and advised the official only in his official capacity. The department head later left his position and sued the municipality. The municipality described the new suit as unrelated to the earlier private litigation but noted the deposition transcript might be useful to impeach the former official. The lawyer, who held no confidential information of the department head, asked whether representing the municipality against the former official would violate Rules 1.9(a) and 1.9(c).

The committee frames the dispositive question as identifying the "former client," which it resolves through Rule 1.13 (organization as client). A lawyer employed by an organization represents the organization acting through its constituents, and the committee assumes the official's role had been explained so that he could not reasonably have believed the municipal attorney was representing him personally at the deposition. On that footing, the client was the municipality (or the municipal department) throughout, the municipality controlled the privilege and the confidentiality obligation, and the loyalty obligation ran to the municipality rather than to the official individually. The committee notes that had the official testified to any impropriety, the lawyer would have been obligated to report it to the appropriate municipal official despite any contrary instruction.

Because the lawyer never represented the former department head as an individual, the committee concludes Rules 1.9(a) and 1.9(c) do not apply: defending the municipality against the former official's suit is not "changing sides," since the lawyer represented the municipality before and continues to do so. The lawyer may therefore use the official-capacity deposition testimony to impeach the former official's later testimony without violating the rules.

In practice

Under this opinion, where a municipal lawyer advised an official solely in the official's official capacity and the official could not reasonably have believed he was being represented personally, the lawyer's only client was the municipality. Per the opinion, that means Rule 1.9's former-client duties do not attach to the individual, and the lawyer may oppose the former official on the municipality's behalf and use his official-capacity testimony to impeach him. The committee grounds the conclusion in Rule 1.13's entity-as-client framework and in its assumptions that the representation's scope had been made clear and that the lawyer held no individual confidences of the official.

Common questions

Q: Is a government official who is advised by the agency's lawyer a "client" of that lawyer?

A: Not in his individual capacity, on these facts. Under Rule 1.13, the lawyer represents the organization acting through its constituents, so where the official is advised only in his official capacity, the client is the municipality, not the official personally.

Q: Can the city's lawyer later sue or defend against that former official?

A: Yes. Because the lawyer never represented the official individually, the committee concludes there is no side-switching and Rules 1.9(a) and (c) do not bar the representation.

Q: Can the deposition the official gave be used to impeach him?

A: Yes. The committee concludes the lawyer may use the testimony the official gave in his official capacity to impeach his later testimony in his own suit against the municipality.

Background and rules framework

The opinion turns on Mass. R. Prof. C. 1.13 (organization as client), which provides that a lawyer for an organization represents the entity acting through its constituents and addresses the government-organization context in its Comments. That framing controls the application of Mass. R. Prof. C. 1.9 (duties to former clients), with Rule 1.7 referenced through Rule 1.13(e). The rules correspond to the Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.13 / Mass. R. Prof. C. 1.13 (organization as client, including the government-agency Comment)
• Model Rule 1.9 / Mass. R. Prof. C. 1.9(a), 1.9(c) (duties to former clients)
• Model Rule 1.7 / Mass. R. Prof. C. 1.7 (referenced via Rule 1.13(e))

See also

• MA Bar Ethics Op. 03-4: Taking a Case Against a Former Client
• MA Bar Ethics Op. 2004-3: Municipal solicitor appearing before a board he represents

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2003-opinion-03-1/opinion-03-1