Government Organizations

Government Organizations

Model Rule 1.13(a) provides that a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.¹ The basic principles and duties of Rule 1.13 apply in full measure to government lawyers who represent public entities or offices, so the earlier sections on the entity as client carry over intact.² Government adds one threshold question: which entity is the client? The client may be a specific agency, a branch of government, or the government as a whole.³ The lawyer's duties, and the privilege that protects the lawyer's communications, run to whichever entity that turns out to be.

Whichever entity is the client, the person who holds an office within it is not. The lawyer ordinarily reports to a government officer, but the lawyer's allegiance belongs to the office. The distinction matters most in the hopefully rare instance in which an individual officeholder has engaged in wrongdoing: the lawyer may not protect or excuse the wrongdoing of the person who holds the office.⁴

The attorney-client privilege follows the same allocation of the client. The client owns the privilege, so the government entity, and not the officeholder, controls it. A government lawyer may therefore be compelled to disclose otherwise privileged information if the government client, acting through a legally authorized constituent, calls for disclosure, whether or not disclosure serves the personal interests of the officer to whom the lawyer ordinarily reports.⁵ Two decisions arising in criminal investigations framed the question as whether a government attorney-client privilege exists at all, and they can be faulted for doing so. The better reading is that they confirm that the government entity, as the lawyer's ultimate client, is entitled to control the privilege.⁶

The Ninth Circuit applied that logic when a former governor of Oregon tried to invoke the privilege personally for consultations with state government attorneys about whether he had a conflict of interest that could lead to personal liability. The court rejected the argument: “Government lawyers, like the elected officials they assist, are public servants, and their client is the government, not officeholders in their personal capacities.”⁷ An exam stem built on this rule will describe an official who consulted a government lawyer about personal exposure and now asserts the privilege to keep the lawyer from testifying. Ask who the client was, because the privilege belongs to that client.

The Rules also leave in place the authority that statutes and regulations give government lawyers. Paragraph 18 of the Scope of the Model Rules acknowledges that government lawyers may have authority to make decisions that ordinarily would be reserved to clients, such as whether to settle and whether to appeal, and it concludes: “These rules do not abrogate any such authority.”⁹ The District of Columbia version of Rule 1.2 makes the point explicit, stating that a “government lawyer’s authority and control over decisions concerning the representation may, by statute or regulation, be expanded beyond the limits” that otherwise reserve decisions on the objectives to the client.¹⁰ Government lawyers may also owe broader obligations, on behalf of the public interest, to question the conduct or policy choices of officials within a client agency or other governmental entity, in a manner and for a purpose beyond what the private attorney-client relationship contemplates.¹¹

The two ideas do not conflict, because they answer different questions. Rule 1.13(a) answers whom the government lawyer serves, and the governing statute or regulation answers who inside the government decides particular matters in the representation.

Compliance with the Model Rules does not settle every dispute between a government lawyer and the government employer. In a First Amendment suit by a lawyer employed by a state, the court applied the balancing test of Connick v. Myers and Pickering v. Board of Education, which weighs an employee's First Amendment rights against the State's interest as employer in promoting the efficiency of the public services it performs through its employees. The court added that whether the plaintiff violated the Model Rules was not the determinative factor, and that a finding of no violation could be of no comfort to her.¹²