11

22

Ethical Issues Arising from Ethical Issues Arising from the Attorney General’s the Attorney General’s

Office Representation of Office Representation of the Statethe State

ALBERT J. LAMAALBERT J. LAMA

Chief Deputy Attorney GeneralChief Deputy Attorney General

Office of New Mexico Office of New Mexico

Attorney GeneralAttorney General

GARY K. KINGGARY K. KING

33

GENERAL ETHICAL RULES GENERAL ETHICAL RULES REGARDING CONFLICT OF REGARDING CONFLICT OF

INTEREST THAT ALL INTEREST THAT ALL ATTORNEYS SHOULD BE ATTORNEYS SHOULD BE

AWARE OF:AWARE OF:Individuals who have conflicts of Individuals who have conflicts of

interestinterestOrganizations that have conflicts Organizations that have conflicts

ofof

interestinterest

44

INDIVIDUALINDIVIDUALABA Model Rule 1.7-Conflict of Interest: ABA Model Rule 1.7-Conflict of Interest:

Current ClientsCurrent Clients

A lawyer shall not represent a client if the A lawyer shall not represent a client if the representationrepresentation

involves a concurrent conflict of interest. A involves a concurrent conflict of interest. A concurrentconcurrent

conflict of interest exists if:conflict of interest exists if: The representation of one client will be directly The representation of one client will be directly

adverse to another client; oradverse to another client; or There is a significant risk that the representation There is a significant risk that the representation

of one or more clients will be materially limited of one or more clients will be materially limited by the lawyer’s responsibilities to another client, by the lawyer’s responsibilities to another client, a form client or a third person or by a personal a form client or a third person or by a personal interest of the lawyer.interest of the lawyer.

55

ABA Model Rule 1.11-Special ABA Model Rule 1.11-Special Conflicts of Interest for Former and Conflicts of Interest for Former and

Current Government lawyersCurrent Government lawyersExcept as law may otherwise expressly Except as law may otherwise expressly

permit, apermit, alawyer currently serving as a public officer orlawyer currently serving as a public officer orEmployee:Employee:

1.1. Is subject to Rules 1.7 and 1.9: and Is subject to Rules 1.7 and 1.9: and 2.2. Shall not:Shall not:

(i) Participate in a matter in which the lawyer (i) Participate in a matter in which the lawyer participated personally and substantially while in participated personally and substantially while in private practice or nongovernmental employment, private practice or nongovernmental employment, unless the appropriate government agency gives its unless the appropriate government agency gives its informed consent, confirmed in writing.informed consent, confirmed in writing.

66

ABA MODEL RULE 1.13 ABA MODEL RULE 1.13 Organization As ClientOrganization As Client

A lawyer employed or retained by an A lawyer employed or retained by an organization represents the organization represents the organization acting through its duly organization acting through its duly authorized constituentsauthorized constituents

If a lawyer for an organization knows If a lawyer for an organization knows that an officer, employee or other that an officer, employee or other person association with the person association with the organization is engaged in action, organization is engaged in action, intends to act or refuses to act in a intends to act or refuses to act in a matter related to the representation matter related to the representation that is a violation of a legal obligation that is a violation of a legal obligation to the organization….. to the organization…..

77

ABA Model Rule 1.13-ABA Model Rule 1.13-Organization as ClientOrganization as Client

((Continued)Continued)Unless a lawyer reasonably believes that Unless a lawyer reasonably believes that

is not necessary in the best interest of is not necessary in the best interest of the organization to do so, the lawyer the organization to do so, the lawyer shall refer the matter to a higher shall refer the matter to a higher authority in the organization, including, authority in the organization, including, if warranted by the circumstances to the if warranted by the circumstances to the highest authority that can act on behalf highest authority that can act on behalf of the organization as determined by of the organization as determined by applicable lawapplicable law

88

Role of the Attorney GeneralRole of the Attorney GeneralCivilCivil

A threshold question involving anyA threshold question involving any

litigation involving the Attorney litigation involving the Attorney General’sGeneral’s

Office is: who is the client?Office is: who is the client?

99

Attorneys General have Attorneys General have been given independent been given independent enforcement duties to enforcement duties to

advance and protect “the advance and protect “the public interest” public interest”

1100

The exclusive province of The exclusive province of the statethe state

Attorney GeneralAttorney General………….is the “right to represent the state .is the “right to represent the state

as toas to

litigation involving a subject matter of litigation involving a subject matter of statewide statewide

interest” interest”

Mountain States Legal Found v. CostleMountain States Legal Found v. Costle, 630 F.2d , 630 F.2d

754, 771 (10754, 771 (10thth Cir. 1980) Cir. 1980)

1111

Therefore, the issue of who is Therefore, the issue of who is the client can be problematicthe client can be problematic

Can different agencies of state Can different agencies of state government be thegovernment be the

same client for purposes of ABA Model same client for purposes of ABA Model Rule1.7?Rule1.7?

ABA Formal Op. 97-405, the ABA Formal Op. 97-405, the identity of identity of client may be determined client may be determined by agreement by agreement between lawyer and between lawyer and state agency, so long as state agency, so long as determination does not “defeat the determination does not “defeat the

reasonable expectation of [the reasonable expectation of [the lawyer’s] lawyer’s] other clients….other clients….

1122

Representing State Agencies v. Representing State Agencies v. Representing the Interest of the Representing the Interest of the

StateState

Inherent in the attorney general’s duty Inherent in the attorney general’s duty to “prosecute” is the power to initiate to “prosecute” is the power to initiate civil lawsuits when, his judgment, the civil lawsuits when, his judgment, the

interest of the state is in need of interest of the state is in need of protection.protection.

State ex rel. Bingaman v. Valley Sav. & State ex rel. Bingaman v. Valley Sav. & Loan Ass’nLoan Ass’n, 97 N.M. 8, 636 P.2d 279 , 97 N.M. 8, 636 P.2d 279

(1981)(1981)

1133

According to the ABA Model According to the ABA Model Rules of Professional Conduct:Rules of Professional Conduct:

[T]he responsibilities of government lawyers [T]he responsibilities of government lawyers maymay

include authority concerning legal matters include authority concerning legal matters thatthat

ordinarily reposes in the client in private ordinarily reposes in the client in private client-client-

lawyer relationships…Such authority in lawyer relationships…Such authority in variousvarious

respects is generally vested in the attorney respects is generally vested in the attorney generalgeneral

and the state’s attorney in state governmentand the state’s attorney in state government

1144

According to the ABA Model According to the ABA Model Rules of Professional Conduct:Rules of Professional Conduct:

(Cont.)(Cont.)

Lawyers under the supervision of these Lawyers under the supervision of these officersofficers

may be authorized to represent severalmay be authorized to represent severalgovernment agencies in intragovernmental government agencies in intragovernmental

legallegalcontroversies in circumstances where a controversies in circumstances where a

private private lawyer could not represent multiple privatelawyer could not represent multiple privateclients. These Rules do not abrogate any clients. These Rules do not abrogate any

such such authority.authority.

1155

New Mexico Supreme Court New Mexico Supreme Court has ruled on the question of has ruled on the question of

representation of a state representation of a state agency client vs. the interest agency client vs. the interest

of the state.of the state.

Mountain States Tel. & Tel. Co. v. Mountain States Tel. & Tel. Co. v. Corporation Comm’nCorporation Comm’n, 99 N.M. 1, 653 , 99 N.M. 1, 653

P.2d 501 (1982)P.2d 501 (1982)

1166

Client v. ClientClient v. ClientConflictsConflicts

Attorney General v. PSCAttorney General v. PSC, 625 N.W. 2d 16 (Mich. , 625 N.W. 2d 16 (Mich. App. 2000)App. 2000)

The Attorney General challenged the order of The Attorney General challenged the order of Public Public

Service Commission granting Detroit Edison Service Commission granting Detroit Edison PowerPower

Company’s motion to terminate proceedings Company’s motion to terminate proceedings regarding regarding

their request for a suspension of its power their request for a suspension of its power supply costsupply cost

recovery clause. The Attorney General was both recovery clause. The Attorney General was both thethe

appellant in the proceeding and acted as counsel appellant in the proceeding and acted as counsel for the commissionfor the commission

1177

Client v. ClientClient v. Client(Cont.)(Cont.)

The court ruled that the rules of The court ruled that the rules of professional professional

responsibility generally recognized a clear responsibility generally recognized a clear conflictconflict

of interest when an attorney general of interest when an attorney general acted as aacted as a

party litigant in opposition to an agency orparty litigant in opposition to an agency or

department that he/she also represented department that he/she also represented in thein the

same cause of action…. same cause of action….

1188

Commwealth v. Pa, Pub. Util. Commwealth v. Pa, Pub. Util. Comm’nComm’n, 394 A.2d 683 (Pa. , 394 A.2d 683 (Pa.

Commw. 1978)Commw. 1978)

Is there a conflict of interest if Is there a conflict of interest if the Attorney General the Attorney General

represents a state agency and represents a state agency and also is required to enforce an also is required to enforce an administrative order against administrative order against that agency client, when it that agency client, when it

arises from the same arises from the same circumstances?circumstances?

1199

Commwealth v. Pa, Pub. Util. Commwealth v. Pa, Pub. Util. Comm’nComm’n, 394 A.2d 683 (Pa. , 394 A.2d 683 (Pa.

Commw. 1978)Commw. 1978)(Cont.)(Cont.)

There is no irreconcilable conflict of There is no irreconcilable conflict of interestinterest

under the stated facts….The AG is under the stated facts….The AG is fulfillingfulfilling

his his statutorilystatutorily mandated duty to represent mandated duty to represent

the Commonwealth, or a department the Commonwealth, or a department

thereof. There are situations which simplythereof. There are situations which simply

require the AG to wear two hats.require the AG to wear two hats.

2200

State Water Res. Control Bd. v. State Water Res. Control Bd. v. Superior Court, 97 Cal. App. 4Superior Court, 97 Cal. App. 4thth

907 (2002)907 (2002)

AG was appropriately disqualified from AG was appropriately disqualified from representing the state water board representing the state water board and state department of game and and state department of game and fish simultaneously because such fish simultaneously because such representation was prohibited by representation was prohibited by

statute.statute.

2211

Safeguards and Best Practices Safeguards and Best Practices to avoid Recusal or to avoid Recusal or

DisqualificationDisqualification Be aware of who the Be aware of who the

office does and does office does and does not representnot represent

Develop an office Develop an office conflict policyconflict policy

Obtain informed Obtain informed consent, confirmed in consent, confirmed in writing, from each writing, from each client. client. SeeSee Model Rule Model Rule 1.71.7

Hire outside counselHire outside counsel

Screening: “isolation of Screening: “isolation of a lawyer from any a lawyer from any participation in a participation in a matter through the matter through the timely imposition of timely imposition of procedures within a procedures within a firm that are firm that are reasonably adequate reasonably adequate under the under the circumstances to circumstances to protect information protect information that the isolated lawyer that the isolated lawyer is obligated to protect is obligated to protect under these Rules or under these Rules or other law.” (Definitions: other law.” (Definitions: Model Rules of Model Rules of Professional Conduct Professional Conduct 1.0)1.0)

2222

Role of the Attorney General-Role of the Attorney General-CriminalCriminal

People v. WaterstonePeople v. Waterstone, 2010 Mich. App. LEXIS 428, 2010 Mich. App. LEXIS 428 There arises a dilemma when a client is There arises a dilemma when a client is

also criminally investigated or prosecuted also criminally investigated or prosecuted by the Attorney General’s Office.by the Attorney General’s Office.

Does a conflict of interest exist under the Does a conflict of interest exist under the rules of professional responsibility rules of professional responsibility specifically when the prosecutor has specifically when the prosecutor has become privy to confidential information?become privy to confidential information? The AG should be disqualified under facts of a The AG should be disqualified under facts of a

case where the AAG has learned confidential case where the AAG has learned confidential information from the Defendant in the course of information from the Defendant in the course of representing him or her in a caserepresenting him or her in a case

2233

AVOIDING CONFLICTS: AVOIDING CONFLICTS: Lessons from WaterstoneLessons from Waterstone

““Cases regarding prosecutor Cases regarding prosecutor disqualification examine whether the disqualification examine whether the prosecutor learned confidential prosecutor learned confidential information that he or she ethically information that he or she ethically may not use against the defendant may not use against the defendant and whether knowledge of that and whether knowledge of that information may be imputed to other information may be imputed to other members of the prosecutor’s office.”members of the prosecutor’s office.”

2244

AVOIDING CONFLICTS: AVOIDING CONFLICTS: Lessons from WaterstoneLessons from Waterstone

(Cont.)(Cont.)““Defendant’s affidavit indicates that she Defendant’s affidavit indicates that she

shared confidential information with shared confidential information with [the AGs Office] and told [it] the basis [the AGs Office] and told [it] the basis for the rulings she made during the … for the rulings she made during the …

trial. trial.

““Courts recognize that a presumption Courts recognize that a presumption arises that, during representation, a arises that, during representation, a client discloses potentially damaging client discloses potentially damaging confidences to his or her attorney.”confidences to his or her attorney.”

2255

GENERAL AREAS FOR CONSIDERATION: GENERAL AREAS FOR CONSIDERATION: PARALLEL PROCEEDINGS POLICYPARALLEL PROCEEDINGS POLICY

CIVILCIVIL

CRIMINALCRIMINAL

ADMINISTRATIVE ADMINISTRATIVE

2266

Discovery/NoticeDiscovery/Notice

A criminal division does not direct a civil A criminal division does not direct a civil division’s investigative activities or vice division’s investigative activities or vice versa.versa.

The state may not deliberately mislead a The state may not deliberately mislead a person as to the possibility of a criminal person as to the possibility of a criminal or civil action.or civil action.

The state must give notice that it is free The state must give notice that it is free to pursue civil, administrative or criminal to pursue civil, administrative or criminal actionsactions

2277

SAMPLE NOTICE:SAMPLE NOTICE:

““The State is free to choose civil, The State is free to choose civil, administrative or criminal actions and administrative or criminal actions and the decision to take one type of action the decision to take one type of action does not preclude pursuing any other does not preclude pursuing any other type of action. However, it is the type of action. However, it is the policy of the attorney general that no policy of the attorney general that no employee shall confirm or deny that a employee shall confirm or deny that a criminal investigation is being criminal investigation is being conducted into a particular matter.”conducted into a particular matter.”

2288

Exchange of InformationExchange of InformationCivil to CriminalCivil to Criminal

The civil action must be brought, in The civil action must be brought, in good faith, in pursuit of that civil good faith, in pursuit of that civil action and may not be brought for the action and may not be brought for the sole purpose of gathering information sole purpose of gathering information for the criminal actionfor the criminal action

It is appropriate for the civil division It is appropriate for the civil division to alert the criminal division of any to alert the criminal division of any information obtained as a result of a information obtained as a result of a legitimate civil purposelegitimate civil purpose

2299

Exchange of InformationExchange of InformationCriminal to CivilCriminal to Civil

It is appropriate for the criminal It is appropriate for the criminal division to alert the civil division of division to alert the civil division of any information obtained as a any information obtained as a result of a legitimate criminal result of a legitimate criminal purpose (subject to grand jury purpose (subject to grand jury confidentiality, below)confidentiality, below)

Grand Jury Materials: Pursuant to Grand Jury Materials: Pursuant to NMSA 1978, Section 21-6-6 grand NMSA 1978, Section 21-6-6 grand jury information is secret and may jury information is secret and may not be shared beyond the members not be shared beyond the members of the prosecuting attorney’s staff.of the prosecuting attorney’s staff.

3300

Exchange of InformationExchange of InformationCriminal to Civil Criminal to Civil

ContinuedContinued

Attempt to obtain as much Attempt to obtain as much information as possible information as possible independent of the grand jury independent of the grand jury process; andprocess; and

compartmentalize and compartmentalize and segregate the evidence segregate the evidence obtained by grand jury.obtained by grand jury.

3311

Assess the need in your Assess the need in your respective AGO Office for respective AGO Office for

an internal policy that an internal policy that maintains maintains

appropriate walls appropriate walls between civil and criminal between civil and criminal

divisions in instances divisions in instances where a parallel where a parallel

proceeding may be proceeding may be contemplated or is contemplated or is

ongoingongoing

3322