Monday, April 22, 2013
A recent opinion of the District of Columbia Bar Legal Ethics Committee is summarized below:
Can a government lawyer represent an agency employer in defending the agency from furlough-related complaints brought by other agency employees when the lawyer was also furloughed and is pursuing her own complaint in which the allegations are substantially similar to those in the complaint she is defending? Under the D.C. Rules of Professional Conduct, a lawyer has a conflict of interest in a matter when “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.” Rule 1.7(b)(4). Such a conflict plainly exists in this situation. However, so-called individual interest conflicts like this one can be waived under Rule 1.7(c) if:
- Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and
- The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
The only affected client here is the agency. The agency’s informed consent to the conflicted lawyer’s representation notwithstanding her individual interest conflict would satisfy the requirements of the first paragraph. But client consent alone is not enough. Under the second paragraph, the lawyer must also reasonably believe that she can provide competent and diligent representation to the agency in the matter despite her personal interest, and her belief must be objectively reasonable under the circumstances. That may be a difficult standard to meet when the lawyer is pursuing her own challenge to the furlough while being asked to defend the agency against substantially similar challenges by other affected agency employees.
The opinion was adopted this month, in response to a hypothetical raised by the "sequester." (Mike Frisch)