Ethics Issues for

State
Attorneys General
Kathleen Clark
National Attorneys General Training and Research Institute (NAGTRI)

Charleston
November 29, 2018
context
I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest
 not
general counsel
for
state government
I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest
 no
universal
answer
 organization
with authority
to direct
L’s work
 legal
&
organizational
context
 it’s
complicated
C = state agency
C = state
I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest
xClient = Principal
Lawyer = Agentxxxxx
 Rule 1.2(a)

Client
-- not lawyer --
determines
objectives of representation
 Rule 1.2(a)

Client
-- not lawyer –
decides
whether to settle
 traditional
lawyer-client
relationship
 defer
to
client
agency
 other
contexts
Some govt lawyers
have client-like
decision-making
authority
 act as
both
lawyer
&
client
 Scope ¶ 18

responsibilities of
govt Ls
may include authority
that ordinarily reposes
in the C
 Scope ¶ 18

L for govt agency

may have
authority to decide
upon settlement or
whether to appeal
 Scope ¶ 18

These
Rules
do not abrogate
any such
authority
 bring a case
settle a case
confess error
 Georgia AG
whether to appeal

Perdue v. Baker - 2003

 Massachusetts AG
whether to appeal

Secy Admin & Finance v. AG – 1975

Feeney v. Commonwealth – 1977
 California AG
whether to represent
state officials

People ex rel Deukmejian v. Brown - 1981

in the public interest
I. Client identity
II. Authority vis-à-vis clients
III. Conflicts of interest
disputes
between
two
state
agencies
AvB
Rule 1.7(a) – conflicts

if representation
of one C is
directly adverse to
another C
Rule 1.10(a)

imputed
conflicts
Rule 1.0(c) – “firm”

lawyers
employed in
legal department
of organization
 state
agencies
opposing
each
other
 Scope ¶ 18

AG may be authorized
to represent
several govt agencies
in intragovernmental
legal controversies
 Scope ¶ 18

These
Rules
do not abrogate
any such
authority
 OAG
may represent
2 agencies
suing
each other
CT Comm Spec.Rev. v CT FOI Comm - 1978
 Asst AGs
represent each agency

AG
represents state
 AG may sue official
whom AG
would normally
represent
State ex rel. Condon v. Hodges – SC 2002
AG suing Sec’y of State
does not violate
legal ethics rules
People ex rel Salazar v. Davidson – CO 2003
OAG may prosecute
state employee
whom OAG rep’s
in unrelated case
State v. Klattenhoff – HI - 1990
 Screening

Outside counsel
 Ethics Issues for
State
Attorneys General
Kathleen Clark
National Attorneys General Training and Research Institute (NAGTRI)

Charleston
November 29, 2018