Can a municipal attorney represent both the city and its police officers in a suit against both over alleged excessive force?

Plain-English summary

Opinion E-82-9 answered two questions about representing municipal police officers sued for excessive force or for conduct outside the scope of their employment, in personal injury actions seeking punitive damages against both the municipality and the officers.

On the first question, the committee concluded that a municipal attorney may not represent both the municipality and the officers if their interests differ. It relied on the former rules barring a lawyer from representing multiple clients with differing interests in litigation (SCR 20.23(3)(b)) and providing that a lawyer retained by an entity owes allegiance to the entity, not to its officers or employees (SCR 20.23(3)(e)). Where the conduct could involve criminal charges or municipal discipline against the officers, the interests differ, so the municipal attorney should represent the municipality, to which the lawyer owes allegiance, and the officers should retain independent outside counsel. The committee added that a municipal attorney representing the municipality should not interview or solicit information from the officers about the action without representing them, obtaining their counsel's consent, or being authorized by law (SCR 20.38(1)).

On the second question, the committee concluded that a private attorney, whether or not on a municipal panel, who is retained and compensated by the municipality may represent the officers, but only after obtaining the officers' consent following full disclosure (SCR 20.30(1)(a)), and not if the lawyer's ability to represent them would, or reasonably probably would, be adversely affected by the lawyer's personal interest in being compensated by the municipality (SCR 20.23(2)(a)). The committee discussed Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 416 A.2d 801 (1980), and adopted views consistent with it on a municipal attorney's representation against police officers, emphasizing the duty to avoid even the appearance of impropriety (SCR 20.48(6)). It noted Wis. Stat. secs. 62.115 and 895.46(1)(a) but found neither overrides the Supreme Court Rules.

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. Concurrent conflicts are now governed by SCR 20:1.7 / Model Rule 1.7, representation of an organization by SCR 20:1.13 / Model Rule 1.13, and communication with represented persons by SCR 20:4.2 / Model Rule 4.2; the "appearance of impropriety" standard no longer appears in the rules. 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: Can a city attorney defend both the city and the officers in an excessive-force suit?

A: No, not where their interests differ. The committee concluded the municipal attorney should represent the municipality, to which the lawyer owes allegiance, and the officers should be represented by independent outside counsel.

Q: When do the city's and officers' interests differ?

A: The committee pointed to situations where the conduct in question involves or could involve criminal charges or disciplinary action by the municipality against the officers.

Q: Can a private lawyer paid by the city represent the officers?

A: Yes, but only with the officers' consent after full disclosure, and only if the lawyer's ability to represent them would not, and reasonably probably would not, be adversely affected by the lawyer's being compensated by the municipality.

Q: Could the municipal attorney question the officers about the case?

A: Not without representing them, obtaining their counsel's consent, or being authorized by law, per SCR 20.38(1).

Background and rules framework

The opinion applied the former Wisconsin Supreme Court Rules on conflicting representation and entity loyalty (SCR 20.23(3)(b), (3)(e)), the consent-after-disclosure and personal-interest provisions (SCR 20.30(1)(a), 20.23(2)(a), 20.23(1)), the bar on contacting represented persons (SCR 20.38(1)), and the appearance-of-impropriety duty (SCR 20.48(6)). The current counterparts are the concurrent-conflict rule (SCR 20:1.7 / Model Rule 1.7), the organization-as-client rule (SCR 20:1.13 / Model Rule 1.13), and the no-contact rule (SCR 20:4.2 / Model Rule 4.2).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.23(3)(b), (3)(e) (multiple clients with differing interests; entity loyalty) (former Code)
• Wis. SCR 20.30(1)(a), 20.23(2)(a) (consent after disclosure; personal-interest conflict) (former Code)
• Wis. SCR 20.38(1), 20.48(6) (contact with represented persons; appearance of impropriety) (former Code)
• Model Rules 1.7, 1.13, 4.2 (concurrent conflicts; organization as client; communication with represented persons)

Statutes:

• Wis. Stat. sec. 62.115 (city authorization to defend officers and employees)
• Wis. Stat. sec. 895.46(1)(a) (payment of judgments and defense costs for officers acting within scope)

Cases:

• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 416 A.2d 801 (N.J. 1980), municipal attorney representation adverse to municipal police officers

Other opinions cited:

• State Bar of Wisconsin Formal Opinion E-77-11: avoiding the appearance of impropriety when representing the public interest

See also

• WI Ethics Op. E-82-13: Court Commissioner and a Partner's Criminal Defense Work
• WI Ethics Op. E-86-14: City Attorney Prosecuting a City Employee
• WI Ethics Op. E-89-7: Lawyer on a City Council and Representation Conflicts

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-9.pdf