Can a furloughed government lawyer keep defending the agency against other employees' furlough appeals while also challenging his own furlough?

Plain-English summary

A lawyer employed by a branch of the military faces a furlough, along with other agency lawyers, under federal "sequestration" cuts. Employees can challenge the furlough before the Merit Systems Protection Board or by class action. The lawyer wants to challenge his own furlough but also expects to be asked to defend the agency against other employees' furlough appeals. The agency has agreed to waive conflicts on certain conditions. The committee answers three questions about whether, and how, the lawyer may continue representing the agency.

On the core conflict, the opinion holds that a lawyer cannot appear on both sides of the same litigation (Rule 1.7(b)(3)), so he cannot represent both himself and the agency in his own furlough challenge. More broadly, if the lawyer represents the agency on other employees' furlough appeals while intending to pursue his own challenge, there is a conflict between his personal interest in defeating the furlough and the agency's interest in upholding it. That conflict may be waived only if the lawyer gives up his right to challenge his own furlough; if he intends to challenge it, the conflict is non-waivable because he cannot reasonably believe he can provide competent and diligent representation to the agency given the strength of his personal interest (Rule 1.7(b)(1)). The agency's own waiver also withdrew consent in that situation.

On unrelated work, the opinion holds that limiting the representation to exclude furlough matters (Rule 1.2(b)) is not by itself enough, because Comment 6 to Rule 1.7 bars a lawyer from being adverse to a current client even on an unrelated matter without consent. Here the agency consented, and because the lawyer can reasonably provide competent, diligent representation on unrelated matters with the other Rule 1.7(b) requirements met, the conflict may be waived. Retaining private counsel for his own challenge does not change the analysis. Finally, if the lawyer's employment ends, the opinion concludes that Rules 1.6 and 1.9 do not preclude him from exercising his personal right as a federal employee to challenge his furlough; the committee rejects a literal reading of Rule 1.9(a) that would bar it as "manifestly absurd," citing Barrett v. Virginia State Bar.

In practice

Under the Virginia rules as they stood when the opinion issued, the opinion sorts a furloughed government lawyer's options by the type of matter and the lawyer's intentions. The opinion holds that representing the agency on furlough appeals while intending to challenge one's own furlough is a non-waivable personal-interest conflict under Rule 1.7(a)(2) and (b)(1); that representing the agency only on matters unrelated to the furlough is permissible with the agency's informed consent under Rule 1.7(b) and Rule 1.2(b), because adversity to a current client even on unrelated matters requires consent (Comment 6 to Rule 1.7); and that, after the employment ends, Rules 1.6 and 1.9 do not bar the lawyer from challenging his own furlough, with Rule 1.6(b)(2) and 1.9(c) reinforcing that reading.

Common questions

Q: Can a government lawyer defend the agency on other employees' furlough appeals while challenging his own furlough?

A: No, if he intends to challenge his own furlough. The opinion holds this is a conflict between the lawyer's personal interest and the agency's, and it is non-waivable under Rule 1.7(b)(1) because he cannot reasonably believe he can provide competent, diligent representation to the agency given the strength of his personal stake.

Q: Can the conflict be cured by the lawyer giving up his right to challenge the furlough?

A: Yes. The opinion holds the conflict may be waived with the agency's informed consent only if the lawyer waives his right to challenge his own furlough; otherwise the lawyer is directly adverse to the agency.

Q: Can the lawyer do agency work unrelated to the furlough while challenging his own?

A: Yes, with consent. The opinion holds that limiting the scope under Rule 1.2(b) is not enough by itself, because Comment 6 to Rule 1.7 bars adversity to a current client even on unrelated matters without consent; here the agency consented, so the conflict may be waived.

Q: Does hiring outside counsel for his own challenge change the analysis?

A: No. The opinion concludes the lawyer still could not reasonably believe he could diligently and competently represent the agency on furlough matters while pursuing his own challenge, and the material-limitation risk is not removed by being represented rather than self-represented.

Q: Can the lawyer challenge his furlough after leaving the agency?

A: Yes. The opinion concludes Rules 1.6 and 1.9 do not preclude a former government lawyer from exercising his personal right to challenge his furlough, rejecting a literal reading of Rule 1.9(a) that would bar it as manifestly absurd and noting Rule 1.6(b)(2) and 1.9(c).

Background and rules framework

The opinion interprets Virginia Rules of Professional Conduct 1.2(b) (limiting the objectives of a representation with the client's consent), 1.6(b)(2) (disclosure to establish a claim or defense in a controversy between lawyer and client), 1.7 (general conflict rule, including the non-waivable categories in (b)), and 1.9 (duties to former clients). These correspond to ABA Model Rules 1.2, 1.6, 1.7, and 1.9. The opinion reads Rule 1.7 together with its Comment 6 (adversity to a current client even on unrelated matters) and treats the Rules as "rules of reason" per the Virginia Preamble.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / Va. Rule 1.2(b) (limiting scope of representation)
• MR 1.6 / Va. Rule 1.6(b)(2) (disclosure in lawyer-client controversy)
• MR 1.7 / Va. Rule 1.7 (concurrent conflicts; Comment 6)
• MR 1.9 / Va. Rule 1.9(a), (c) (former-client duties)

Cases:

• Barrett v. Virginia State Bar, 272 Va. 260, 634 S.E.2d 341 (Va. 2006), statutory language not given a literal reading that produces a manifest absurdity.

Statutes:

• 18 U.S.C. § 208 (federal criminal conflict-of-interest statute), referenced for the agency's conclusion that furlough work did not violate it.

See also

• ABA Formal Op. 97-405: Conflicts in Representing Government Entities
• ABA Formal Op. 97-409: Successive Government and Private Employment

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1875.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1875

CONFLICT ISSUES WHEN A
GOVERNMENT LAWYER IS
FURLOUGHED FROM EMPLOYMENT
AND ASKED TO CONTINUE
REPRESENTING THE AGENCY

In this hypothetical, a lawyer is employed by a branch of the military. All of the lawyers (and most other employees) employed by this military agency will be furloughed for a set number of days within the next several months, as part of spending cuts triggered by a recent act in Congress called "sequestration." All furloughed employees will have the right to challenge the furlough action via appeals to the Merit Systems Protection Board and possibly via class action challenges to the furlough. The lawyer would like to challenge his furlough, but also anticipates being asked to represent the agency in defending furlough appeals filed by other employees. In anticipation of these issues, the Secretary of this branch of the military, in consultation with the office of general counsel, has developed a procedure for reassigning lawyers who intend to challenge their furloughs to work only on non-furlough matters and for waiving any conflicts that may exist with lawyers who do not intend to challenge their furloughs and otherwise feel able to provide diligent and competent representation to the agency on furlough-related matters. The Secretary has directed lawyers employed by the agency to consult with their state bars for guidance regarding their ethical responsibilities if the agency lawyer is furloughed and continues to represent the agency. The Secretary has also agreed to waive the agency lawyer's conflict of interest provided that:

• The lawyer reasonably believes that he will be able to provide competent and
  diligent representation to the agency;
• The representation is not prohibited by law;
• The representation does not involve the assertion of a claim by one client against
  another client represented by the lawyer in the same proceeding; and,
• The lawyer will cease providing legal representation and promptly notify his
  supervisor if, because of any material change in circumstances, he reasonably believes that he can no longer provide competent and diligent representation to the agency. A material change in circumstance would include the lawyer challenging his furlough in an administrative or judicial forum.

QUESTIONS PRESENTED

1. Can the lawyer defend the agency against other employees' challenges to their furloughs and
   also pursue his own challenge to the furlough? If this is a conflict, is the conflict cured by the lawyer waiving his right to challenge his furlough?
2. Can the lawyer challenge his own furlough and continue to perform other legal services for the
   agency, but not work on any furlough-related matters for the agency? Does it make a difference if the lawyer represents himself in the furlough challenge or hires an outside lawyer to represent him?
3. Are there any restrictions on the lawyer's ability to challenge his furlough if he first terminates
   his employment with the agency?

APPLICABLE RULES
The applicable Rules of Professional Conduct are Rules 1.2(b), 1.6(b)(2), 1.7, and 1.9(a) & (c).

ANALYSIS
Conflicts when the agency lawyer represents the agency in furlough matters The most basic conflict scenario on these facts is when a lawyer appears on both sides of the same litigation, which is expressly forbidden by Rule 1.7(b)(3). Thus, a lawyer undoubtedly cannot represent both himself and his agency on opposing sides of his own challenge to the furlough, even if the government agency were willing to consent to this arrangement. The next question is whether there is a conflict of interest if the lawyer represents the agency in defending other furlough matters, while concurrently pursuing or intending to pursue his own challenge to his furlough. In this case, there is a conflict between the lawyer's personal interest in not being furloughed and the agency's interest in upholding the furloughs. The lawyer may benefit from a holding in another furloughed employee's matter that would undermine the agency's position in the lawyer's own furlough appeal, or that would benefit all furloughed employees, including the lawyer, even if the lawyer did not pursue his own challenge to the furlough. This conflict may be waived with the informed consent of the agency only if the lawyer waives his right to challenge his own furlough. If the lawyer intends to challenge his furlough, he is directly adverse to the agency and the conflict may not be waived because the lawyer cannot reasonably believe that he will be able to provide competent and diligent representation to the agency in light of the nature and strength of his personal interest in the matter. See Rule 1.7(b)(1). Additionally, in this hypothetical, the agency's consent and waiver of the potential conflict specifically prohibits the lawyer's continued representation of the agency in furlough-related matters should the lawyer choose to challenge his own furlough in an administrative or judicial forum. Conflicts when the lawyer represents the agency only in unrelated matters As provided by Rule 1.2(b), a lawyer may limit the scope of representation with informed consent from the client. Therefore, a lawyer in this situation may attempt to manage the conflict of interest by limiting his representation to exclude any furlough matters. This limitation alone, however, is not sufficient to avoid the conflict of interest. Even though the lawyer would be adverse to the agency only on a matter unrelated to his representation of the agency, comment 6 to Rule 1.7 makes clear that a lawyer cannot be adverse to a current client even on an unrelated matter unless the client consents as permitted by Rule 1.7(b). In this case, the agency/client, through its general counsel, has indicated its willingness to waive this conflict and permit lawyers to work on matters unrelated to the furlough while challenging their own furloughs. Accordingly, the Committee opines that the conflict may be waived with the informed consent of the agency because it is reasonable to believe that the lawyer will be able to provide diligent and competent representation to the agency on these unrelated matters and all other requirements of Rule 1.7(b) are satisfied. Would the conflicts analysis be different if the lawyer were represented by private counsel not employed by the agency? No, the agency lawyer's retention of private counsel to pursue his challenge to the furlough does not change the conflicts analysis explained above. Assuming private counsel were retained, the Committee believes that the lawyer still could not reasonably believe that he could diligently and competently represent the agency on furlough related matters while pursuing a challenge to his furlough. Also, the risk that the representation of the agency would be materially limited by the lawyer's personal interests is not removed merely because the lawyer is represented by counsel instead of representing himself. Either way, the Committee's guidance remains the same. Conflict if the lawyer's employment with the agency is terminated Assuming the lawyer's employment with the agency is terminated, you ask what ethical constraints might apply if the lawyer pursues a furlough challenge against his former client. The Committee believes that while Rules 1.6 and 1.9 impose ethical obligations that a lawyer owes a former client, those obligations do not preclude the lawyer from exercising the personal rights given him as a federal employee to challenge his furlough in any administrative or judicial proceeding. To the extent that Rule 1.9(a) might be read to do so, this Committee rejects that interpretation of the rule as manifestly unfair, as well as illogical. If the agency has consented to allow the lawyer to challenge his furlough while employed by the agency, under the terms and conditions set out in its waiver, it is manifestly unfair and illogical that the lawyer would be ethically precluded from pursuing his furlough challenge after the representation of the client has ended, solely on the basis that the agency will not consent. As the Supreme Court of Virginia observed in Barrett v. Virginia State Bar, 272 Va. 260, 634 S.E.2d 341 (2006), "[r]ules of statutory construction provide that language should not be given a literal interpretation if doing so would result in a manifest absurdity." 272 Va. at 267. This Committee adopts a similar view with its construction of Rule 1.9(a). Such an interpretation also appears at odds with Rule 1.6(b)(2) which permits a lawyer to disclose confidential information if reasonably necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. . . ." Also, Rule 1.9(c) permits the lawyer to use or reveal information relating to the representation of a former client to the extent that Rule 1.6 would permit with respect to a client. Finally, as the Scope to the Preamble to the Virginia Rules of Professional Conduct states: "the Rules of Professional Conduct are rules of reason." The Preamble also states that: In the nature of law practice, however, conflicting responsibilities are encountered. . . Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. Based on these considerations, the Committee believes that the lawyer is not precluded by the Rules of Professional Conduct from challenging his furlough after termination of his employment by the agency. This opinion is advisory only and is not binding on any court or tribunal. Committee Opinion July 24, 2013