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Volume 8, Number 1
Who Is Your Client? Ethical Considerations for Government Attorneys
Mark M. Neil, NAGTRI Program Counsel
The ethical and legal obligations of a lawyer are many. Lawyers are required to provide competent representation to their client.
An attorney must also defend the attorney-client privilege by not revealing the confidential communications between the client and themselves.
All of these obligations presuppose one thing: the lawyer knowing the identity of their client. How else might they assure compliance with the ethical rules, evidentiary standards and discovery limitation? In short, the lawyer has an ethical duty to know a client’s identity.
Defining the Client
An attorney might first look for the definition in the terminology section of the applicable statute, regulation or rule. In the case of legal ethics, that would be Rule 1.0 of the American Bar Association’s Model Rules of Professional Conduct. However, the model rules contain no definition of “client.”
Next, they might consult Black’s Law Dictionary, which defines client as “a person who employs or retains an attorney, or counselor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business.”
How, then, is the government attorney to know the identity of their client? The difficulty in answering this question lies, in part, within a basic premise of the rules themselves. The model rules were written based on the attorney-client paradigm of One Lawyer: One Client. While this may work well in the representation of a criminal defendant or a litigant in a domestic issue, it does not apply well to representation by a government lawyer.
So, How to Decide Who Is The Client?
The answer is not as simple as picking one from a list of the alternatives. A variety of courts and authors have considered the issue deciding who the client of the government attorney might be. The general consensus is that there are five possible answers to the question:
- Government as a whole
- Branch of government in which employed
- Particular agency or department
- Responsible officers who make decisions with an agency or department
The rules regarding ethics and professional responsibility are not the end nor are they the sole source of the lawyer’s responsibilities.
The ethical and client identification issues for the government attorney are many. It may be that the lawyer must look elsewhere to determine the identity of his or her client. Determining the extent of a lawyers’ authority or whether a lawyer-client relationship exists may require an external inquiry depending on the circumstances and context of representation.
There may be situations where lawyers find themselves representing clients against other government entities. The Model Rules allow representation of multiple government agencies involved in intragovernmental legal controversies in circumstances where a private lawyer would find themselves in an ethically impossible situation.
In all situations, determination will depend on the context of the representation. The government lawyer can put the representation and client identification in context by examining the structure of authority within the government. The specifics of a state’s Constitution, particular statutory provisions of the attorney general’s powers and the statutory scheme relating to an individual agency or public officer must be considered. The lawyer may find themselves representing a department or bureau that is part of a branch of government, the branch of government itself, or the government as a whole. In most cases, the government lawyer will represent the governmental entity and the client may be the state agency or officer.
In short, the task for the government attorney in identifying their client is not an easy one. Regardless, the government attorney must assess the question of client identification on a recurring basis as the answer may change with each new situation or change of circumstance. Failing to do so could result in a breach of ethical duty.
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