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Ethical Quandaries
For Government
Attorneys
Andrew J. Mallon
IBA Seminar, May 17, 2012
Introduction:
2


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”
Role of Government Lawyer
3


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 . . .
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”

Board
Comment 9:
Director
Team
Leader
Team
Leader
Team
Leader
Admin.
Assistant
“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
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(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.
Rule 1.6 Lawyer’s Duty of Confidentiality
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(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).
Circuits Split Over Government
Attorney/Client Privilege
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



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)
Who is the Client?
9


Rule 1.13
“Higher Authority” and “Control Group”
Agency
Agency
Staff
“Client”
Public
Min./Maj.
Members
Who’s the Client (Cont’d)
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
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
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
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).
Ethical Political Participation
Political Lawyer
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 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.”
Ind. Prof. Cond. Rule 8.4
14

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;
Ind. Prof. Cond. Rule 8.2
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(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.
“Pay to Play”
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PayToPlay
17

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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Thank You
Drewry Simmons Vornehm, LLP
Carmel City Center
736 Hanover Place, Suite 200
Carmel, Indiana 46032
317-580-4848
www.dsvlaw.com