Andrew J. MallonIBA Seminar, May 17, 2012

Ethical Quandaries For Government

Attorneys

Introduction:

Role of the Government Lawyer The Government Client

“Who’s the Client?” Whose Privilege is it? Who can speak for whom?

Participation in Political Activities The Political Attorney Campaign Misconduct

“Pay to Play”

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Role of Government Lawyer

Rule 2.1 Advisor: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Rule 3 Advocate Note: Rule 3.6 Trial Publicity- discourages

extrajudicial statements to be publicly communicated that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” But . . .

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The Government Client

Duty of Confidentiality v. Evidentiary privilege

Who is the “client”? Who holds a privilege is it? Who speaks or acts for client?

The Government Client

Indiana Rule 1.13, Entity as Client Key terms:

“authorized constituents” “higher/highest authority”

Comment 9:“The duty defined in this Rule applies to governmental organizations. . . Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule.”

Rule 1.4 Lawyer’s Duty of Communication

(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law or assistance limited under Rule 1.2(c).

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Rule 1.6 Lawyer’s Duty of Confidentiality

(a)    A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

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Circuits Split Over Government Attorney/Client Privilege 8th Circuit- In re Grand Jury Subpoena Duces

Tecum, 112 F.3d 910 (1997) D.C. Circuit- In re Bruce Lindsey,158 F.3d 1263

(1998) 7th Circuit- In re Witness Before the Special Grand

Jury, 288 F.3d 289 (2002) 2nd Circuit- In re Grand Jury Investigation (Doe),

399 F.3d527 (2005)

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Who is the Client?9

Rule 1.13 “Higher Authority” and “Control Group”

Who’s the Client (Cont’d)10

Highest Authority- Generally, majority vote of body Board only acts through votes/approved

minutes Majority hold’s privilege

Higher Authority- know hierarchy of constituents

Note: Post-representation Privacy Indiana Rule of Professional Conduct 1.11

(c):“…, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” (Emphasis added).

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Ethical Political Participation

Political Lawyer

Rule 1.2 (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

BUT, . . . Rule 2.1 Advisor: “In rendering advice, a

lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”

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Ind. Prof. Cond. Rule 8.4

It is professional misconduct for a lawyer to: . . .(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;

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Ind. Prof. Cond. Rule 8.2

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

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“Pay to Play”16

PayToPlay

Legal services contract in exchange for political campaign contribution. No bid legal services contracts. I.C. 5-22-6-1 Unlimited contributions by individuals,

partnerships, LLPs, LLCs, etc. I.C. 3-9-2-3 through 3-9-2-5.

Preemption of local pay-to-play ordinances Offenses Against Public Administration:

Bribery. I.C. 35-44-1-1. ABA Model Prof. Cond. Rule 7.6

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Drewry Simmons Vornehm, LLPCarmel City Center736 Hanover Place, Suite 200Carmel, Indiana 46032317-580-4848www.dsvlaw.com

Thank You18