Monday, April 22, 2013

May Furloughed Attorney Defend Complaints By Furloughed Employees?

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:

  1. 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
  2. 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)

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