Mark M. Neil, NAGTRI Program Counsel
NAGTRI Program Counsel
The ethical and legal obligations of a lawyer are many. Lawyers are required to provide competent representation to their client.[1] Attorneys may not reveal information relating to the representation of a client without informed consent.[2] They cannot represent a client if there exists a concurrent conflict of interest.[3] A lawyer must protect the rights of persons not represented by counsel.[4]An attorney must also defend the attorney-client privilege by not revealing the confidential communications between the client and themselves.[5] Further, the discovery of a lawyer’s work product prepared in the course of legal representation, especially in preparation for litigation, is not normally permitted.[6]
All of these obligations presuppose one thing: the lawyer knowing the identity of their client. How else might they assure compliance with the ethical rules, evidentiary standards and discovery limitation? In short, the lawyer has an ethical duty to know a client’s identity.[7] Yet, despite its importance, this may be no easy task for those employed by the government.
Defining the Client
An attorney might first look for the definition in the terminology section of the applicable statute, regulation or rule. In the case of legal ethics, that would be Rule 1.0 of the American Bar Association’s Model Rules of Professional Conduct. However, the model rules contain no definition of “client.”[8]
Next, they might consult Black’s Law Dictionary, which defines client as “a person who employs or retains an attorney, or counselor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business.”[9] Elsewhere, the original proposed Federal Rules of Evidence included a definition of “client” in regard to attorney-client privilege as a “person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney. . . .”[10]
How, then, is the government attorney to know the identity of their client? The difficulty in answering this question lies, in part, within a basic premise of the rules themselves. The model rules were written based on the attorney-client paradigm of One Lawyer: One Client. While this may work well in the representation of a criminal defendant or a litigant in a domestic issue, it does not apply well to representation by a government lawyer.[11]
So, How to Decide Who Is The Client?
The answer is not as simple as picking one from a list of the alternatives. A variety of courts and authors have considered the issue deciding who the client of the government attorney might be. The general consensus is that there are five possible answers to the question:
Public
Government as a whole
Branch of government in which employed
Particular agency or department
Responsible officers who make decisions with an agency or department
The rules regarding ethics and professional responsibility are not the end nor are they the sole source of the lawyer’s responsibilities.[12] Rule 1.13 of the Model Rules provides, for example, that the lawyer represents an organization through its duly authorized constituents.[13] This works fine for representation of a corporation or other legally-recognized organization as the lawyer has legal guidelines for identification of those “constituents.” It is of little help in aiding in the government attorney.[14]
The ethical and client identification issues for the government attorney are many. It may be that the lawyer must look elsewhere to determine the identity of his or her client. Determining the extent of a lawyers’ authority or whether a lawyer-client relationship exists may require an external inquiry depending on the circumstances and context of representation.[15] The government attorney may have authority regarding legal matters that do not exist in a private lawyer-client relationship, including the settlement of a matter or declining to appeal an adverse decision. Non-government lawyers are concerned with protecting the interests of their clients, even when those clients may be engaged in wrongdoing. Government attorneys, on the other hand, have a higher, competing duty to act in the public interest.[16]
There may be situations where lawyers find themselves representing clients against other government entities. The Model Rules allow representation of multiple government agencies involved in intragovernmental legal controversies in circumstances where a private lawyer would find themselves in an ethically impossible situation.[17] Where two state agencies are in opposition to each other, for example, the client is not the government as a whole or even the public, but the respective agency.[18]
In all situations, determination will depend on the context of the representation. The government lawyer can put the representation and client identification in context by examining the structure of authority within the government. The specifics of a state’s Constitution, particular statutory provisions of the attorney general’s powers and the statutory scheme relating to an individual agency or public officer must be considered. The lawyer may find themselves representing a department or bureau that is part of a branch of government, the branch of government itself, or the government as a whole. In most cases, the government lawyer will represent the governmental entity and the client may be the state agency or officer.[19] Each situation requires its own analysis.[20]
In short, the task for the government attorney in identifying their client is not an easy one. Regardless, the government attorney must assess the question of client identification on a recurring basis as the answer may change with each new situation or change of circumstance. Failing to do so could result in a breach of ethical duty.
[1] Rule 1.1, ABA Model Rules of Professional Conduct. Throughout this article, reference will be made to the American Bar Association Model Rules of Professional Conduct rather than any specific state rule.
[2] Rule 1.6, ABA Model Rules of Professional Conduct.
[3] Rule 1.7, ABA Model Rules of Professional Conduct.
[4] Rule 4.3, ABA Model Rules of Professional Conduct.
[5] See Rule 502, Federal Rules of Evidence.
[6] Rule 26(b)(3), Federal Rules of Civil Procedure.
[7] Margaret Colgate Love, Government Lawyers Must Distinguish Their Duties from the Obligations of Clients, www.abajournal.com/magazine/article/who_is_the_client.
[8] Rule 1.0, ABA Model Rules of Professional Conduct.
[9] Black’s Law Dictionary, 5th Edition.
[10] Proposed Rule 503, Federal Rules of Evidence proposed by the United States Supreme Court, 1972. While many state versions of this rule of evidence include the definition in their Rule 502 or similar provision, this definition was excluded for the Federal Rules of Evidence when enacted by Congress in 1975. Public Law 93-595, 88 Stat. 1926.
[11] L. Ray Patterson, Legal Ethics: The Law of Professional Responsibility, Pt. III-3 (1982).
[12] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. ²7 Preamble to ABA Model Rules of Professional Conduct.
[13] Rule 1.13(a), ABA Model Rules of Professional Conduct.
[14] “Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. Comment [9] to Rule 1.13, ABA Model Rules of Professional Conduct.
[15] ² 17 Scope of ABA Model Rules of Professional Conduct.
[16] In re: A Witness Before the Special Grand Jury 200-2288 F. 3d 289 (7th Cir. 2002).
[17] ² [18] Scope of ABA Model Rules of Professional Conduct.
[18] Clark, supra.
[19] Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033, 1985.
[20] See Comment [9], Rule 1.13, ABA Model Rules of Professional Conduct.
| When the Supreme Court of each state enacted the Rules of Professional Conduct into law... there was no consideration of the direct or collateral impact on the rights and privileges guaranteed by the United States Constitution. |
| Look at all those footnotes pointing to the Rules of Professional Conduct... All points leading back to Rule 1.6. |
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