Can a Missouri governmental entity waive a conflict for contract counsel representing a client adverse to another part of the same government?

Plain-English summary

A government planned to retain private contract counsel and asked whether those lawyers could also represent clients adverse to another part of that government.

The opinion maintains that representing any part of a government creates a conflict with representation adverse to another part of the same government. It changes the earlier position by recognizing that the government may waive that conflict. It cites State ex rel. Nixon v. American Tobacco Company and ABA Formal Opinion 97-405. The authority of a particular official to give a waiver is a legal question beyond the opinion’s scope.

In practice

The opinion recognizes a possible government waiver of the conflict while leaving who may validly give it to other law.

Common questions

Q: Can the governmental entity waive the conflict?

A: Yes. The opinion expressly recognizes that possibility.

Q: Does it say who has authority to waive?

A: No. It calls that a legal question beyond the scope of an informal opinion.

Q: What is the conflict absent waiver?

A: The opinion treats representation adverse to any part of the same government as conflicting with representation of another part.

Background and rules framework

The opinion cites State ex rel. Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 135–136 (Mo. banc 2001), and ABA Formal Op. 97–405 for government waiver.

Citations and references

Cases:

• State ex rel. Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 135–136 (Mo. banc 2001)

Other opinions cited:

• ABA Formal Op. 97–405

See also

• Missouri Informal Op. 20060003: Imputed Divorce Conflict

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20040059/

Original opinion text

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

QUESTION: The governmental entity is seeking to retain private attorneys on a contract basis for court proceedings. The attorneys would not be considered employees of the governmental entity. May attorneys hired on a contract basis represent other clients whose interests are adverse to any part of the governmental entity? May a governmental entity waive a conflict of interest?

ANSWER: The Supreme Court of Missouri has recognized the ability of state government to waive conflicts in State ex rel. Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 135–136 (Mo. banc 2001). In ABA Formal Op. 97–405, the American Bar Association clearly contemplates that governmental entities may waive conflicts.

This informal advisory opinion represents a departure from the previous position on waiver of conflicts of interest by governmental entities. It is now the position that governmental entities may waive conflicts. However, the issue of who has the authority to waive the conflict on behalf of the governmental entity is a legal question beyond the purview of an informal advisory opinion. An attorney who seeks a waiver from a governmental entity would be well advised to be certain that the person who purports to waive a conflict has the legal authority to do so.

This informal advisory opinion maintains the position that an attorney who represents any part of a government has a conflict that prevents representation adverse to any part of the same government, except that now waiver of the conflict is recognized as a possibility. By recognizing the ability of the government to waive conflicts, the government has the ability to determine at what levels government should be divided for conflict purposes and this determination can be tailored to the legal and factual issues involved in a given matter.