April 9, 1996
A city attorney may meet individually with a member of the city council, the chief of police or the city manager regarding the consequences of the city manager's arrest, but may not deliver legal services to them individually unless the proper conflict screening is performed and confidences and secrets preserved.
References: MRPC 1.6(b), 1.7(b), 1.13(a), (d) and (e), 4.3.
A city attorney for a municipality reads in the newspaper that the city manager for the municipality was arrested the previous night for domestic assault and will be arraigned in the morning. The following persons have requested appointments with the city attorney:
- A member of the 7-person city council and chairperson of the Personnel Committee wants to see the lawyer about "employment agreements" and how they may be terminated early.
- The city's chief of police who obtained a copy of the incident report from the sheriff's department wants to fill the city attorney in on all the details of the arrest so the city attorney "may be better informed."
- The city manager wants to see the lawyer after bonding out of jail to get some advice on criminal procedures and how the arrest may affect the city manager's employment
The lawyer asks about ethical duties that may apply in responding to these individuals.
The Committee is aware that some locales, through statute, ordinance contract, etc., authorize public lawyers to render legal services to the highest decision-making body of the locale and to subordinate departments or affiliate agencies. In such situations the lawyer has more than one "client," and perhaps more than one client "entity." The facts provided do not reveal any special authorizations of this type, so we address the inquiry as one in which the city attorney may be asked to render legal services to a new client.
The city attorney, whether an employee of the municipality or outside counsel retained by the municipality, must first remember that as city attorney the lawyer represents the city council entity, not city departments, individual city officials, individual council members or employees. MRPC 1.13(a), (d) and (e) state:
"(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents."
". . .
"(d) In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstandings on their part.
"(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders."
The Comment extends the rule to governmental organizations and goes on in clarifying the lawyer's role as follows:
"The fact that the organization is the client may be quite unclear to the organization's officials and employees. An organization official accustomed to working with the organization's lawyer may forget that the lawyer represents the organization and not the official. The result of such a misunderstanding can be embarrassing or prejudicial to the individual if, for example, the situation is such that the client-lawyer privilege will not protect the individual's communications to the lawyer. The lawyer should take reasonable care to prevent such consequences. The measures required depend on the circumstances. In routine legal matters, a lawyer for a large corporation does not have to explain to a corporate official that the corporation is the client. On the other hand, if the lawyer is conducting an inquiry involving possible illegal activity, a warning might be essential to prevent unfairness to a corporate employee. See also Rule 4.3."
The city attorney must advise each of the individuals who requested an appointment that the city attorney represents the municipality and not any of them individually. The city attorney should also make sure that confidences and secrets of the city council are not to be shared with the individuals. If any of the individuals seek legal advice or assistance, the city attorney must be able to quickly evaluate whether such assistance is ethically permissible.
The city attorney may give general legal information to the chairperson of the Personnel Committee on the termination of employment agreements. The facts do not indicate that the city council has offered any instruction to the city attorney regarding the arrest matter. Therefore counseling the chairperson regarding the details of the city manager's employment does not trigger any apparent conflict of interest problem, and consent of the city council under MRPC 1.13(e) and MRPC 1.7 is not required. It is likely that the Personnel Committee would make a recommendation to the city council regarding the employee, and should be fully prepared for that task by consultation with the city attorney.
Ethics rules are not violated by the city attorney receiving information from sources other than clients. As long as the incident report information conveyed by the chief of police was not obtained illegally, there is no prohibition in the city attorney accepting it. The city attorney should be careful not to disclose confidences and secrets to the chief of police, such as information about the visit of the chairperson of the Personnel Committee. Since the chief of police apparently is not seeking legal advice, there is no other ethical impact of the meeting.
A conflict of interest may arise when the city attorney meets with the city manager. MRPC 1.7 states:
"(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation.
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
The facts state that the city manager wants to see the city attorney "to get some advice on criminal procedures and how the arrest may affect the city manager's employment." Again, the city attorney may provide general legal information about criminal law and procedures and may even refer the city manager to a lawyer experienced in criminal law matters. The city attorney may also reveal the gamut of possible employment actions to which the manager may be exposed under applicable law and city policy, without commenting on the likelihood of any particular course of action.
As of this point in time, the city attorney has not spoken to the city council about the arrest matter. Because the matter has been exposed in the newspaper, the city manager's position is very visible, and the city attorney has already been contacted by various persons about the incident, it is likely that the city council will have questions to put to the city attorney about the matter, including the scope of options available under the circumstances. In such consultations the city attorney would be required to render service from the perspective of the city council's interests and instructions. Since at least some of the available options will negatively affect the city manager, MRPC 1.7(b) has been triggered, i.e., the city attorney's representation of the city manager would be materially limited by the city attorney's duties to the city council.
It is difficult to imagine a manner in which the city attorney could effectively and without conflicts represent both the city manager and the municipality, particularly knowing at least one member of the city council is requesting information on terminating employment contracts. It is clear that the city attorney should not render any legal service to the city manager without the consent of the city council. Further, the city attorney should be careful to treat the city manager as an unrepresented person under MRPC 4.3, and refrain from giving any advice other than to seek legal counsel. Finally, the city attorney should clarify for the city manager that information provided by the city manager will not constitute confidences or secrets that the city manager has a duty to preserve. MRPC 1.13(d) and 1.6(b).