Can a part-time county attorney who is partly paid by the state sue a state department for a private client?

Plain-English summary

The committee was asked whether a part-time county attorney, one half of whose salary is paid by the State of Montana, may represent a plaintiff in a wrongful-termination case against the Department of Fish, Wildlife and Parks. It answered yes, if the attorney obtains the proper consent.

The committee started from the county attorney's statutory duties. Section 7-4-2716, MCA, directs the county attorney to defend all suits brought against the state, so a part-time county attorney represents the State of Montana on at least a limited civil basis. Suing a state department for a private client therefore creates a conflict of interest. Applying Rule 1.7, the committee explained that a lawyer may not represent a client whose representation is directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation.

The committee concluded the county attorney would need the consent of both the private client and the Department. It observed that because most departments have their own counsel, consent in Montana is usually freely given, and that a part-time county attorney has almost no involvement with the Department and thus no access to its confidential information. With consent obtained, the county attorney could represent the private client.

Currency note

This opinion was issued in 1986, before the State Bar of Montana's adoption of the 2004 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 Treat this page as historical context, not current guidance.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: Why does a county attorney have a conflict in suing a state department?

A: The opinion explains that Section 7-4-2716, MCA, requires the county attorney to defend suits against the state, so the part-time county attorney represents the state on a limited civil basis and suing a state department is directly adverse to that client.

Q: How can the conflict be cured?

A: The opinion states that under Rule 1.7 the attorney must obtain the consent, after consultation, of both the private client and the Department of Fish, Wildlife and Parks.

Q: Does the lack of access to confidential information matter?

A: The opinion notes as a practical matter that a part-time county attorney has almost no involvement with the Department and thus no access to its confidential information, which is why consent is usually freely given.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.7 (Conflict of Interest: General Rule; Model Rule 1.7) against the county attorney's statutory duty under Section 7-4-2716, MCA, to defend suits brought against the state.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.7 (conflict of interest: general rule; consent after consultation) / Model Rule 1.7

Statutes:

• Section 7-4-2716, MCA (county attorney's duty to defend suits against the state)

See also

• State Bar of Montana Ethics Op. 850820: A Prosecution Firm Taking a Criminal-Defense Appointment
• State Bar of Montana Ethics Op. 880211: Civil Representation and Prosecution
• ABA Formal Op. 97-409: Successive Government and Private Employment

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/860903%20consent%20to%20ca%20suit%20against%20state.pdf

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: May a part-time county attorney, one-half of whose salary is paid by the State of Montana, represent a plaintiff in a wrongful termination case against the Department of Fish, Wildlife and Parks?

ANSWER: Yes, if the attorney obtains the proper consent.

ANALYSIS: Section 7-4-2716, MCA, provides in pertinent part:

The County Attorney must

(3) . . . defend all suits brought against the State.

Clearly, a part-time county attorney represents the State of Montana on at least a limited basis civilly. Therefore, the representation would create a conflict of interest.

Rule 1.7, Conflict of Interest: General Rule provides:

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.

A part-time county attorney would need to obtain the consent of both the private client and the Department of Fish, Wildlife and Parks. Since most Departments have counsel representing them, in Montana consent is usually freely given. As a practical matter, a part-time county attorney has almost no involvement with the Department of Fish, Wildlife and Parks, and thus no access to confidential information. After receiving consent, the county attorney could represent the private client.

                          THIS OPINION IS ADVISORY ONLY