Challenges in Transitioning to Public Service and Leadership Ethical Considerations Application of Rules of Professional Conduct AttorneyClient Relationship Rule 113 Conflicts of Interest Rules 18 110 ID: 1003597
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1. The Lawyer Becomes the ClientChallenges in Transitioning to Public Service and Leadership
2. Ethical ConsiderationsApplication of Rules of Professional ConductAttorney-Client Relationship (Rule 1.13)Conflicts of Interest (Rules 1.8 – 1.10)Duty of Truthfulness (Rule 4.1)Communication with Person Represented by Counsel (Rule 4.2 & 4.3)Former Government Officials (Rule 1.11)Practical Issues
3. You’re never NOT a lawyerPreamble to the MRPC indicates that ethical duties attach to attorneys, regardless of whether they are presently acting “as a lawyer.”It doesn’t matter what hat you’re wearing – you have a duty to abide by your ethical obligations as a lawyer
4. Attorney-Client Relationship: Is there a client?Rule 1.13(a): “(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”Formation of Attorney-Client Relationship (Restatement of Law Governing Lawyers Sec. 14)Manifestation of intent to seek provision of legal servicesLawyer agrees to do so – OR – lawyer doesn’t demonstrate lack of consent to act as attorney, and the person reasonably relies on the lawyerThe Accidental Attorney-Client Relationship (very nuanced)
5. Conflicts of Interest – Former ClientsCan be tricky in Indian law – living in the same neighborhood as your ex-spouseDuty of Loyalty – Avoiding Conflicts of Interest (Rule 1.7)Residual duties to former clientsConfidentialityAvoiding conflicts of interest Comment 3 (Rule 1.9): “In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.”
6. You MUST handle the truthRule 4.1: In the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.Application beyond representation of client?
7. Talking with a represented partyTricky – Everybody will assume that you’re a lawyer Tricky – Other lawyers speaking with youRule 4.2: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the othComment 4: “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.”er lawyer or is authorized to do so by law or a court order.”
8. Leaving OfficeTermination of public service may sometimes be abrupt, but it is always wise to plan for itRules contemplate lawyers working for the government (Rule 1.11)GENERAL RULE: Can’t represent clients on a matter where you were “personally and substantially” involved during government service – even if the lawyer was not acting as a lawyer in government serviceGovernment can consent (must be in writing)“Matter” is defined as, “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties”
9. Practical Issues & SolutionsThese issues arise on a daily basis, in various forms. When in doubt, default to two common-sense principles:
10. MIIGWETCH!Questions or Comments?Bryan Newland, PresidentBay Mills Indian Community(906) 248-8100bnewland@baymills.org