Can a furloughed government lawyer defend her own agency against other employees' furlough complaints, and may she do so if she is also pursuing her own furlough complaint?

Plain-English summary

The committee received inquiries from federal and military lawyers licensed in South Carolina who were furloughed or expected to be, asking whether they may advise, represent, and defend their client (the U.S. Government) against other employees' furlough-related complaints. The highest-ranking person in their chain of command had consented to waive the conflict, and the federal departments asked affected lawyers to check the requirements of the jurisdictions where they are licensed. The questions: (1) may a furloughed agency lawyer who does not intend to pursue her own complaint defend the agency from other employees' furlough complaints, given a top-of-command waiver; and (2) may she represent the agency if she does intend to pursue her own complaint?

The committee concluded that a government attorney may defend her agency or command from furlough-related complaints if she reasonably believes she can provide competent and diligent representation to her employer-client under Rule 1.7(b)(1), but that it will likely be unreasonable for her to believe she can do so while actively challenging the agency in her own furlough complaint. There is a concurrent conflict under Rule 1.7(a)(2) because the lawyer's personal interest as a furloughed employee creates a significant risk that her professional judgment for the agency would be adversely affected by her financial interest in avoiding the furlough. That conflict is waivable if Rule 1.7(b) is satisfied; on the facts, subsections (2), (3), and (4) appear met, so the analysis turns on subsection (1)'s "reasonably believes" standard.

Quoting the Philadelphia Bar Association's Opinion 2013-3, the committee described the lawyer's "critical self-analysis": whether she reasonably believes she can provide competent and diligent representation despite her personal interest in a contrary outcome, a determination that must be both personal and reasonable under Rule 1.0(k)'s definition of "reasonably believes," and potentially subject to challenge. The committee saw nothing on the facts preventing the lawyer from reasonably concluding she could still represent the agency in advising on furlough matters. Whether she may both defend the agency and pursue her own complaint is fact-specific, depending (per D.C. Opinion 365) on the similarity between her allegations and the complaint she is defending and whether the defended complaint's outcome would bind or persuade in her own. The committee quoted the New York State Bar Association's Opinion 968 doubting a lawyer who files her own appeal could reasonably conclude she can competently defend the agency against a similar appeal where the issues are the same, and cautioned the attorney against representing the agency in furlough matters if she intends to file her own complaint.

In practice

The opinion holds that, under South Carolina Rule 1.7, a furloughed government lawyer's personal interest creates a waivable concurrent conflict under Rule 1.7(a)(2), and she may defend her agency against other employees' furlough complaints if she reasonably believes (Rule 1.7(b)(1), informed by Rule 1.0(k)) she can provide competent and diligent representation; on the facts the other Rule 1.7(b) conditions appear met. The opinion treats the second scenario, defending the agency while pursuing her own furlough complaint, as fact-specific and likely unreasonable where the issues overlap, and cautions against it if the lawyer intends to file her own complaint.

Common questions

Q: Can a furloughed government lawyer defend the agency against other employees' furlough complaints?

A: Yes, if she reasonably believes she can. The committee said the furlough creates a waivable Rule 1.7(a)(2) personal-interest conflict, and she may proceed if she reasonably believes under Rule 1.7(b)(1) she can provide competent and diligent representation to the agency.

Q: Does the top-of-command waiver resolve the conflict?

A: It supplies consent, but subsection (1) still controls. The committee said the Rule 1.7(b) consent conditions appear met, so the analysis turns on whether the lawyer reasonably believes she can competently and diligently represent the agency.

Q: Can she defend the agency while also filing her own furlough complaint?

A: Likely not where the issues are the same. The committee said this is fact-specific and, citing the New York and D.C. opinions, doubted a lawyer pursuing her own appeal could reasonably conclude she can competently defend the agency against a similar appeal; it cautioned against it.

Q: What does "reasonably believes" require?

A: A personal but reasonable judgment. The committee, citing Rule 1.0(k) and the Philadelphia opinion, said the lawyer must make a critical self-analysis that is both genuinely held and objectively reasonable, and is potentially subject to challenge.

Background and rules framework

The opinion interprets South Carolina Rule 1.7(a)(2) (material-limitation conflict from a lawyer's personal interest), Rule 1.7(b) and 1.7(b)(1) (waiver conditions and the "reasonably believes competent and diligent representation" standard), and Rule 1.0(k) (definition of "reasonably believes"), which correspond to the like-numbered Model Rules. The analysis turns entirely on the reasonableness of the lawyer's belief that she can represent the agency despite her own furlough interest, and on whether pursuing her own complaint makes that belief unreasonable.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC Rule 1.7(a)(2) (personal-interest conflict), 1.7(b), 1.7(b)(1) (waiver; reasonable belief in competent, diligent representation)
• MR 1.0 / SC Rule 1.0(k) (definition of "reasonably believes")

Other opinions cited:

• Philadelphia Bar Association, Professional Guidance Committee, Opinion 2013-3 (April 2013)
• District of Columbia, Legal Ethics Committee, Opinion 365 (April 2013)
• New York State Bar Association, Committee on Professional Ethics, Opinion 968 (June 10, 2013)

See also

• SC Bar Ethics Op. 11-02: Part-Time County Attorney Conflicts
• SC Bar Ethics Op. 12-07: Fee Mortgage and Settlement

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-13-06/
• Original PDF: https://www.scbar.org/media/4dnhfotd/13-06.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 13-06

SC Rule of Professional Conduct: 1.7

Facts:

The Ethics Advisory Committee has received several inquiries from federal and military lawyers licensed in SC who expect to be furloughed or have been furloughed. They have inquired about the ethical propriety of advising and representing and defending their client, the US Government, against other employees’ furlough-related complaints. The Committee understands that the highest- ranking person within their chain of command (the Secretary of Defense, Secretary of the Navy, Commandant of the Marine Corps, etc.) has consented to the waiver or conflict. The inquirers noted that the departments of the Federal Government have requested that all affected lawyers inquire as to the requirements of the jurisdictions in which they are licensed.

Questions Presented:

1. May an attorney employed by a federal agency defend the agency from furlough-related complaints brought by other agency employees when the attorney was also furloughed, but does not intend to pursue her own complaint? (Provided that the person at the top of the command chain issues a letter acknowledging and waiving conflict).

2. May the attorney represent the agency if the attorney does intend to pursue her own complaint?

Summary:

A government attorney may defend her agency or command from furlough related complaints, provided that she reasonably believes she will be able to provide competent and diligent representation to her employer-client as required under Rule 1.7(b)(1). However, it will likely be unreasonable for the attorney to believe that she can provide competent and diligent representation to the agency in furlough-related matters while actively challenging the agency in her own furlough-related complaint.

Opinion

There exists a concurrent conflict of interest under Rule 1.7(a)(2) given the attorney’s personal interest as an employee subject to the sequestration furlough, and the significant risk that, as such, her professional judgment on behalf of the agency would be adversely affected by her personal and financial interests in avoiding the sequestration. This conflict can be waived provided that the requirements of Rule 1.7(b) are satisfied. Given the facts provided, subsection (2), (3) and (4) appear to be met, leaving the analysis to turn on subsection (1). This subsection provides that “a lawyer may represent a client if … the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” When addressing the same issue regarding furlough-related work, the Philadelphia Bar Association analyzed the “reasonably believes” provision of 1.7(b)(1) in the following manner:

To proceed with the representation, Rule 1.7(b)(1) requires the inquirer to make a determination of whether she reasonably believes that she can provide competent and diligent representation to the Department in spite of her personal interest in an outcome contrary to the Department’s interest. Thus, the inquirer is faced with a critical self-analysis. If the inquirer still believes she can provide competent and diligent representation to her client, then the conflict is waivable. The Committee points out that this is initially a personal analysis that must be done by the inquirer herself. But her determination must also be a reasonable one. Under [Rule 1.0(k)], ‘Reasonable belief’ or ‘Reasonably believes’ when used in reference to a lawyer denotes that “the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” Her conclusion on this issue is potentially subject to challenge. The Committee sees no facts here which would prohibit the inquirer from determining that notwithstanding her personal interest she could still provide competent and diligent representation, should she personally conclude that is possible. That could turn on factors unique to the inquirer that renders her more or less able than others to set aside her own personal interests, factors about which the Committee has no knowledge. However, the Committee sees no reason to believe that the inquirer cannot make a responsible judgment as to that matter.

The Philadelphia Bar Association, Professional Guidance Committee, Opinion 2013-3 (April 2013).

From the facts presented, this Committee sees nothing that would prohibit the attorney from reasonably believing that she will be able to provide competent and diligent representation to the agency in advising them in furlough-related matters.

Whether it is reasonable, however, for an attorney to represent the agency in these matters, while also pursuing her own complaint, is a fact specific inquiry that “will depend on the similarity between the allegations in the attorney’s complaint and the complaint she is defending, and on whether the outcome of the complaint the lawyer is defending will have a persuasive or binding effect on her own complaint.” (District of Columbia, Legal Ethics Committee, Opinion 365 (April 2013). When analyzing this same issue, the New York State Bar Association stated that:

Where a lawyer does file his or her own appeal against the sequestration furlough, … we doubt that the lawyer could reasonably reach the conclusion that he or she could competently and diligently defend the agency against a similar appeal by another employee, at least where, as is likely to be the case, the issues in the lawyer’s own case and those of the defense are the same.

New York State Bar Association, Committee on Professional Ethics, Opinion 968 (June, 10, 2013).

Given that it is much more likely that the attorney will be faced with defending similar allegations that she lodges against the agency in her own complaint, we caution the attorney against representing the agency in furlough-related matters if she intends to file her own complaint against the agency.