Can a Texas government-agency lawyer defend the agency in other employees' furlough appeals when the lawyer herself may be furloughed and could file the same appeal?
Texas Ethics Opinion 649: A Government Lawyer's Personal-Interest Conflict in Furlough Appeals
Short answer: Per the Committee, a Texas government-agency lawyer may defend the agency in other employees' furlough appeals even though the same decision may furlough the lawyer and give her the same claim, but only if the agency consents after full disclosure and the lawyer reasonably believes her representation will not be materially affected by her own interests; consent alone is insufficient, and if she plans to appeal her own furlough on substantially similar grounds she should not take the representation.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion considers a lawyer employed by a federal agency whose duties include defending the agency before administrative tribunals when employees appeal adverse employment decisions. Because of budget sequestration, the agency plans to furlough employees, possibly including the lawyer, and asks the lawyer to defend it in furlough appeals brought by other employees. If the lawyer is later furloughed, she could appeal on the same grounds as the employees she defended against.
The opinion analyzes the situation under Rule 1.06(b)(2), which bars a representation that reasonably appears to be adversely limited by the lawyer's own interests. It concludes the lawyer's loyalty to and ability to represent the agency are impaired when the agency action she is defending is the same action she herself may appeal. Under Rule 1.06(c), even assuming the agency knows of the conflict and consents, consent alone is insufficient; the lawyer must also reasonably believe the representation will not be materially affected, and that determination is fact-specific. The opinion states that if the lawyer plans to appeal her own furlough, she should not defend the agency against other employees on a substantially similar action, especially if a ruling could be precedent in her own appeal.
The opinion also invokes Rule 1.05(b)(2) and (4), which bar using a client's confidential information to the client's disadvantage or using privileged information for the lawyer's advantage without consent, noting that the agency might be less forthcoming knowing the lawyer is in the same position as the appealing employees. The opinion identifies scenarios that may avoid an irreconcilable conflict: where the lawyer's appeal is not substantially similar in facts or law to the employees' appeals, or where it is substantially similar but the lawyer is not going to appeal her own furlough. It emphasizes that under Rule 1.06(c) the lawyer must "reasonably believe" the representation will not be materially affected, and that where a disinterested lawyer would conclude the client should not agree, the lawyer should not seek consent. If the lawyer reasonably believes the representation would be materially affected, a conflict exists and she may not represent the agency.
Finally, the opinion notes that if Rule 1.06 prohibits the lawyer's representation, Rule 1.06(f) imputes the disqualification to other lawyers in the same governmental unit (the Terminology section includes "lawyers employed . . . in a unit of government" within "firm"), but adds that federal law may render Rule 1.06 inapplicable in whole or in part to government lawyers, citing Paragraph 13 of the Preamble.
In practice
Under this opinion, and under the Texas rules as they stood in 2015, the analysis turns on whether the lawyer can reasonably believe her personal stake in the same furlough decision will not materially affect her defense of the agency. The opinion holds that agency consent after full disclosure is necessary but not sufficient; the lawyer must also hold that reasonable belief. The opinion identifies the lawyer's own intent to appeal and the substantial similarity of the facts and law as the factors that determine whether the conflict is irreconcilable, and notes that disqualification, if it applies, may be imputed across the governmental unit under Rule 1.06(f), subject to any contrary federal law.
Common questions
Q: Can a Texas agency lawyer defend the agency in furlough appeals when she might be furloughed too?
A: Per Opinion 649, yes, but only if the agency consents after full disclosure and the lawyer reasonably believes her representation will not be materially affected by her own potential furlough claim.
Q: Is the agency's consent enough by itself?
A: No. The opinion concludes that consent alone is insufficient; the lawyer must also reasonably believe under Rule 1.06(c)(1) that the representation will not be materially affected.
Q: What if the lawyer plans to appeal her own furlough?
A: The opinion states that if she plans to appeal her own furlough, she should not defend the agency against other employees on a substantially similar action, especially if a ruling could be precedent in her own appeal.
Q: Does the conflict spread to other lawyers in the agency?
A: The opinion concludes that Rule 1.06(f) would impute the disqualification to other lawyers in the same governmental unit, but notes federal law may make Rule 1.06 inapplicable in whole or in part to government lawyers.
Background and rules framework
The opinion interprets Texas Disciplinary Rule of Professional Conduct 1.06, focusing on 1.06(b)(2) (representation adversely limited by the lawyer's own interests), 1.06(c) (reasonable belief plus informed consent), and 1.06(f) (imputation within a firm, including a governmental unit). It also applies Rule 1.05(b)(2) and (4) (use of confidential or privileged information) and references Paragraph 13 of the Preamble on the application of the rules to government lawyers. In the ABA Model Rules, the conflict standard corresponds to Model Rule 1.7.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest, including the lawyer's personal interest)
- Texas Disciplinary Rules 1.06(b)(2), 1.06(c), 1.06(f), 1.05(b)(2), 1.05(b)(4)
- Texas Disciplinary Rules, Preamble Paragraph 13 (application to government lawyers)
See also
- ABA Formal Op. 509: Disqualification From Use of Confidential Government Information
- TX Ethics Op. 645: Debtor Counsel When a Creditor Is the Lawyer's Client
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-649/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_649.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
May a Texas lawyer represent her employer, a federal government agency, in defending a claim against the agency brought by agency employees regarding an employment decision made by the agency, when that decision may also adversely affect the lawyer personally and result in the lawyer's having the same or a substantially similar claim against the agency?
STATEMENT OF FACTS
A Texas lawyer is an employee of a federal government agency (the "Agency"). The lawyer's duties include defending the Agency before administrative tribunals when Agency employees appeal the Agency's adverse employment decisions. Because of automatic spending cuts as part of the federal budget "sequestration," the Agency plans to begin furloughing employees, including possibly the lawyer. The Agency asks the lawyer to defend it in appeals by other employees who are furloughed. If the lawyer is subsequently furloughed she could appeal the decision in the same manner and on the same grounds as other employees' appeals in which she had defended the Agency.
DISCUSSION
Rule 1.06(b)(2) of the Texas Disciplinary Rules of Professional Conduct prohibits a lawyer from representing a client if the representation reasonably appears to be adversely limited by the lawyer's own interests. Comment 4 to Rule 1.06 states that a lawyer's loyalty to a client is impaired when "a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer's own interests . . . ." The lawyer's loyalty to the Agency and the lawyer's ability to represent the Agency are impaired when the Agency's actions that the lawyer is defending are the same actions that the lawyer, as an employee of the Agency, may appeal herself.
Rule 1.06(c) provides exceptions to Rule 1.06(b)(2) if:
"(1) the lawyer reasonably believes the representation of each client will not be materially affected; and
(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any."
The facts assume the Agency has full knowledge of the conflict of interest and has consented to the lawyer's representing the Agency. Such consent alone, however, is insufficient to allow the lawyer to represent the Agency. The lawyer must reasonably believe that the representation will not be materially affected. Whether the lawyer reasonably believes she can represent the Agency without adversely affecting the Agency will depend on the specific facts and circumstances involved. For example, if the lawyer personally plans to appeal her furlough, then the lawyer should not represent the Agency against other employees for a substantially similar action, especially if the ruling might be precedent in the lawyer's personal appeal of her furlough.
"Loyalty is an essential element in the lawyer's relationship to a client." Comment 1 to Rule 1.06. "The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer's independent professional judgment in considering alternatives . . . ." Comment 4 to Rule 1.06. The Agency should be able to expect complete loyalty from the lawyer with no concern that the lawyer's personal claim against the Agency may be influenced by a ruling in a substantially similar claim defended by the lawyer.
Furthermore, Rule 1.05(b)(2) and (4) prevents a lawyer from using "confidential information of a client to the disadvantage of the client" or using "privileged information of a client for the advantage of the lawyer . . . unless the client consents after consultation." "Free discussion should prevail between lawyer and client in order for the lawyer to be fully informed and for the client to obtain full benefit of the legal system." Comment 1 to Rule 1.05. Even if all relevant information is known or discoverable, knowing that the lawyer is in the same situation as other employees appealing furlough decisions might make the Agency less forthcoming with information than if a different lawyer represented the Agency. Thus, when the lawyer plans to appeal if she is furloughed, the lawyer should reasonably believe that the representation of the Agency might be materially affected.
If the facts or applicable law related to the lawyer's appeal are not substantially similar to those in the appeals filed by other Agency employees, the lawyer might reasonably conclude that representing the Agency in appeals involving other Agency employees would not create an irreconcilable conflict. If the facts or applicable law are substantially similar but the lawyer is not going to appeal her own furlough, the lawyer might reasonably conclude that representing the Agency in appeals involving other Agency employees would not create an irreconcilable conflict. One of the requirements of using Rule 1.06(c) to overcome a conflict is that the lawyer "reasonably believes" the representation of the client will not be materially affected. The Terminology section of the Rules provides that "reasonably believes" means "the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable." "[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client's consent." Comment 7 to Rule 1.06. If the lawyer reasonably believes the representation of the Agency would be materially affected, a conflict exists and she may not represent the Agency.
If the lawyer is unable to represent the Agency because of a conflict of interest, Rule 1.06(f) prevents any other member of the lawyer's "firm" from representing the Agency in the matter. The Terminology section of the Rules provides that "firm" or "law firm" includes "lawyers employed . . . in a unit of government." If Rule 1.06 prohibits the lawyer from representing the Agency in a matter, Rule 1.06(f) would prohibit all the lawyers within that unit of government from representing Agency in the matter. However, federal law may result in Rule 1.06 (in whole or in part) not being applicable to government lawyers in this situation. See Paragraph 13 to the Preamble: Scope of the Rules (explaining that the Rules do not abrogate any authority otherwise applicable to government lawyers).
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer may represent her employer, a federal government agency, in defending a claim against the agency brought by agency employees regarding an employment decision made by the agency, when that decision may also adversely affect the lawyer personally and result in the lawyer's having the same or a substantially similar claim against the agency, if the agency consents after full disclosure and the lawyer reasonably believes that her representation of the agency will not be materially affected by the lawyer's own interests.
Tex. Comm. On Professional Ethics, Op. 649 (2015)