Can a town's lawyer represent both the town and its police officers as co-defendants in a Section 1983 civil rights lawsuit?

Plain-English summary

Two town counsel asked whether they could represent both the town and its police officers as co-defendants in civil-rights suits under 42 U.S.C. 1983. The committee explained that the interests of municipal and individual defendants can diverge: under Monell, a town avoids liability by showing its employee did not act under official policy, while under Owen the employee may have a qualified immunity the town lacks. So a defense that helps one defendant can hurt the other. The governing rule was DR 5-105, which permits multiple representation only when it is "obvious" (measured objectively) that the lawyer can adequately represent each and each consents after full disclosure.

Rejecting a per se bar, the committee followed the New Jersey Supreme Court's analysis (In re Opinion 552): joint representation of clients with potentially differing interests is permissible where there is a substantial identity of interests in defending the claims. Considerations of cost, access to counsel, and an efficient common defense favor a flexible, fact-specific approach over a flat rule.

Applying that to the two inquiries, the committee reached opposite results. In Inquiry 1, the town announced it would raise "every available defense," including that the officer (hurt-causing incident occurred during paid private duty) was not acting within his official duties; while the town preserved that defense it was not obvious counsel could represent both, so DR 5-105(C) barred joint representation, and DR 5-105(D) barred the rest of his office too. In Inquiry 2, an inquest had already found the officer's use of deadly force justified and within his duties, and the town had answered that his conduct was justified, so the town and officer could expect a mutually supportive common defense. Joint representation could satisfy the "obvious" prong there, but only if the town at least prima facie concluded the officer was entitled to indemnification (the indemnification question under G.L. c. 258, 9 puts their economic interests directly at odds, so counsel should not litigate indemnity within the civil-rights case), and only with the informed consent of both the responsible town official and the officers, including disclosure of Monell, the limits of the joint-defense privilege, and the risk that counsel might have to withdraw if an actual conflict emerged.

Currency note

This opinion was issued in 1986, before Massachusetts's adoption of the 2015 revisions to the 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: Is it always improper for a town lawyer to defend both the town and its police in a Section 1983 case?

A: Per the opinion, no. The committee rejected a per se rule and allowed joint representation where there is a substantial identity of interests in defending the claims, the "obvious" test of DR 5-105(C) is met, and both clients consent after full disclosure.

Q: When is joint representation barred?

A: When the town intends to defend on the ground that the officer was not acting within the scope of his official duties (as in Inquiry 1). The committee said that defense makes it not obvious counsel can adequately represent both, so DR 5-105(C) bars it and DR 5-105(D) bars the rest of the office.

Q: How does indemnification affect the joint defense?

A: The committee said indemnity under G.L. c. 258, 9 puts the town's and officer's economic interests directly at odds, so counsel jointly defending both should not raise the officer's indemnification in the civil-rights suit and should leave any genuine indemnity dispute to a separate action.

Background and rules framework

The opinion applied DR 5-105(A), (B), (C), and (D) (multiple representation; the consent-plus-objective test; imputed disqualification), which correspond today to Model Rule 1.7 (concurrent conflicts and informed consent). Because one client was a governmental entity, Model Rule 1.13 (organization as client) is also implicated in identifying the client and who may consent. The substantive backdrop came from Section 1983 doctrine (Monell, Owen) and the Massachusetts Tort Claims Act indemnification provisions.

Citations and references

Statutes:

• 42 U.S.C. 1983 and 1985 (civil rights actions)
• G.L. c. 258, 9 (indemnification of public employees; exclusion for grossly negligent, willful, or malicious acts)

Cases:

• Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability turns on official policy)
• Owen v. City of Independence, 445 U.S. 622 (1980) (employee qualified immunity; municipality has none)
• Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984) (joint representation sacrificed the officer's interests)
• In re Petition for Review of Opinion 552, 102 N.J. 194, 507 A.2d 233 (1986) (substantial-identity-of-interests test adopted)
• City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (no punitive damages against a municipality)

Other opinions cited:

• MBA Opinions 80-2, 85-1: multiple representation and the objective "obviousness" test

See also

• MA Bar Ethics Op. 88-1: A firm representing a school board while opposing town police
• MA Bar Ethics Op. 85-1: Suing an insurer's insureds while taking the insurer's mortgage work
• MA Bar Ethics Op. 88-2: A former government lawyer opposing a former agency

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1986-opinion-no-86-2/opinion-no-86-2