Can a private lawyer sue one government agency while representing another agency of the same government in an unrelated matter?

Plain-English summary

Opinion 19-02 considered whether a private lawyer may represent a client against one department or agency of a government while, in an unrelated matter, representing a different department or agency of the same government. The example given is one partner representing a criminal defendant-appellant against the Attorney General's office while another partner is asked to represent the Department of Health in unrelated Medicaid waiver negotiations.

The Committee answered "possibly," explaining that whether a conflict exists under Rule 1.7 depends on the identity of the government client and the nature of the representation, and varies with the facts. Government clients are treated as organizational clients under Rule 1.13(h), with the government entity as the client, though government lawyers may have expanded duties under other law. Because identifying the client is harder in the government context, the Committee said the government client and scope should ideally be fixed in writing at the outset; if not, a functional analysis applies.

The functional analysis, drawn from ABA Formal Opinion 97-405, considers the legal definition of the government client, how it is funded, its level of autonomy on the specific issue, and the matter's importance to the broader government. The identity of the client must then be viewed through Rule 1.7, recognizing both the private client's and the government client's right to object to directly adverse representations. If uncertainty remains, the Committee directs that it be resolved in favor of disclosing the potential conflicts to both clients. The opinion concludes the simultaneous representation is not prohibited, but lawyers must remain aware of the heightened potential for a Rule 1.7 conflict and of their duties to the government client, the private client, and the public interest. (A footnote notes that under Rule 1.10, a Rule 1.7 prohibition on one lawyer is imputed to the lawyer's firm.)

In practice

The opinion holds that, under Utah's rules as applied here, a firm taking on a matter adverse to one government agency while representing another agency of the same government must first determine who the government client is, using a written engagement where possible or the functional analysis described in ABA Formal Op. 97-405, and then apply Rule 1.7. Per the opinion, if doubt remains about the client's identity or the existence of a conflict, the lawyer should disclose the potential conflict to both the government and private clients, and a Rule 1.7 bar on one lawyer is imputed to the firm under Rule 1.10.

Common questions

Q: Can my firm sue one state agency while representing another state agency?

A: Possibly. The opinion concludes the simultaneous representation is not categorically prohibited, but whether a Rule 1.7 conflict exists depends on how the government client is defined and the nature of the matters, decided case by case.

Q: Who is the "client" when a lawyer represents a government agency?

A: Under Rule 1.13(h), the client is the governmental entity, treated like an organizational client. The opinion says the precise client can be harder to identify in government work and should be fixed in writing at the outset, or determined by a functional analysis.

Q: What if it is unclear whether the two agencies are the same client?

A: The opinion directs that lingering uncertainty be resolved in favor of disclosing the potential conflict to both the government and private clients, consistent with Rule 1.7.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 1.7 (concurrent conflicts of interest) together with Rule 1.13(h) (the government entity as organizational client) and Rule 1.10 (imputation of conflicts within a firm), and references Rule 1.2 (scope of representation). These correspond to their ABA Model Rule counterparts. The functional-analysis framework and the recognition of both clients' right to object are drawn from ABA Formal Opinion 97-405 (1997), which itself cites D.C. Bar Legal Ethics Committee Opinion 268 (1996).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Utah RPC 1.7 (concurrent conflicts of interest)
• MR 1.13 / Utah RPC 1.13(h) (government entity as organizational client)
• MR 1.10 / Utah RPC 1.10 (imputation of conflicts within a firm)
• Utah RPC 1.2 (scope of representation)

Other opinions cited:

• ABA Formal Op. 97-405 (1997): Conflicts in Representing Government Entities
• D.C. Bar Legal Ethics Comm. Op. 268 (1996)

See also

• ABA Formal Op. 97-405: Conflicts Representing Government Entities
• ABA Formal Op. 95-390: Corporate Family Conflicts
• ABA Formal Op. 509: Government Information and Disqualification

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2019-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/19-02.pdf

Original opinion text

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

Issue

1. Is it permissible for a private lawyer to represent a client against a government department or agency and simultaneously represent a different department or agency of the same government in an unrelated matter?

Opinion

2. Possibly. Whether a conflict exists under Rule 1.7 of the Utah Rules of Professional Conduct ("URPC") hinges on the identity of the government client and the nature of the representation. The answer to this question will vary based on the specific facts of a particular case.

3. Government clients are treated like organizational clients under Rule 1.13 of the Utah Rules of Professional Conduct. However, lawyers representing government clients may have expanded duties under relevant law. See URPC Rule 1.13(h). Government clients should be clearly identified at the outset of the representation. While clients control the scope of the representation, the client's autonomy with respect to his identity must be viewed through the lens of Rule 1.7 of the Utah Rules of Professional Conduct. A lawyer may not ignore potential conflicts under Rule 1.7 by virtue of a narrow definition of the government client.

BACKGROUND

4. A lawyer may represent third parties against a specific government's department or agency and simultaneously be asked to represent a different department or agency of the same government. The representation against the government department or agency and the representation of the government client involve unrelated departments, agencies, and issues. For example, Partner A represents a criminal defendant-appellant against the Attorney General's office while Partner B is asked to represent the Department of Health in negotiating waivers for Medicaid coverage with the federal government.

Discussion

ANALYSIS

5. Rule 1.13(h) regarding representations of entities states that "a lawyer . . . employed to represent a governmental entity shall be considered . . . as representing an organization. The government lawyer's client is the governmental entity . . . ." URPC Rule 1.13(h).

6. A lawyer representing government clients should have a clear understanding of the identity of his client. Generally, clients control the scope of a lawyer's representation. URPC Rule 1.2. However, the Committee notes that it may be more difficult to precisely identify the client within the governmental context. See URPC Rule 1.13 cmt. 13a. Ideally, the identity of the government client and scope of the representation will be clearly addressed in writing at the outset of the representation. If the government client has not been clearly identified, a functional analysis of the reasonable understandings and expectations of the lawyer and government entity (acting through its authorized representatives) should be employed.

7. A functional analysis should include, but is not limited to: the legal definition of the government client, how the government client is funded, the government client's level of autonomy with respect to the specific issue for which the lawyer has been retained, and the general importance of the matter to other departments of the government entity or the government as a whole. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 97-405, "Conflicts in Representing Government Entities" (Apr. 19, 1997) (citing D.C. Bar, Legal Ethics Comm. Op. 268 (1996)) (the "ABA Opinion").

8. Additionally, the identity of the government client must be viewed through the lens of Rule 1.7 of the Utah Rules of Professional Conduct. The lawyer must assure himself that: the definition of the government client ultimately arrived at in discussions with authorized government officials both recognizes and respects [his] private clients' right to object when their lawyer proposes to represent interests directly adverse to their own. [His] government client has the same right to object to any potentially conflicting private representations. ABA Opinion. If after the functional analysis, there is still uncertainty as to the identity of the government client, it should be resolved in favor of disclosing the potential conflict(s) to both the government and private clients consistent with Rule 1.7.

CONCLUSION

9. The simultaneous representation described above is not specifically prohibited by the rules, but lawyers engaged in this practice must be aware of the increased potential for a conflict as defined by Rule 1.7. Therefore, the Utah Rules of Professional Conduct do not preclude the simultaneous representation of government and private clients against separate departments or agencies of the same government. However, lawyers engaged in this practice should exercise constant awareness of their responsibilities to their government clients, their private clients, and the public interest.

NOTES:

1 Rule 1.10 of the Utah Rules of Professional Conduct governs the imputation of conflicts of interest for a private firm. If Rule 1.7 prohibits one lawyer from representing a client, that prohibition is imputed to each lawyer associated in the firm as described in Rule 1.10.

2 Comment 13a to Rule 1.13 states, in pertinent part: "The duties defined in this rule apply to government lawyers . . . except to the extent the responsibilities of the government lawyers are otherwise controlled by the duties imposed upon them by law. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context . . . ."