Challenges in Transitioning to Public Service and Leadership for Lawyers
Delve into the ethical considerations and practical issues faced by lawyers transitioning to public service and leadership roles. Explore topics such as the attorney-client relationship, conflicts of interest, duty of truthfulness, and communication with represented parties. Understand the enduring ethical obligations that bind lawyers regardless of their role.
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The Lawyer Becomes the Client Challenges in Transitioning to Public Service and Leadership
Ethical Considerations Application of Rules of Professional Conduct Attorney-Client Relationship (Rule 1.13) Conflicts of Interest (Rules 1.8 1.10) Duty of Truthfulness (Rule 4.1) Communication with Person Represented by Counsel (Rule 4.2 & 4.3) Former Government Officials (Rule 1.11) Practical Issues
Youre never NOT a lawyer Preamble to the MRPC indicates that ethical duties attach to attorneys, regardless of whether they are presently acting as a lawyer. It doesn t matter what hat you re wearing you have a duty to abide by your ethical obligations as a lawyer
Attorney-Client Relationship: Is there a client? Rule 1.13(a): (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. Formation of Attorney-Client Relationship (Restatement of Law Governing Lawyers Sec. 14) Manifestation of intent to seek provision of legal services Lawyer agrees to do so OR lawyer doesn t demonstrate lack of consent to act as attorney, and the person reasonably relies on the lawyer The Accidental Attorney-Client Relationship (very nuanced)
Conflicts of Interest Former Clients Can be tricky in Indian law living in the same neighborhood as your ex- spouse Duty of Loyalty Avoiding Conflicts of Interest (Rule 1.7) Residual duties to former clients Confidentiality Avoiding conflicts of interest Comment 3 (Rule 1.9): In the case of an organizational client, general knowledge of the client s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.
You MUST handle the truth Rule 4.1: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Application beyond representation of client?
Talking with a represented party Tricky Everybody will assume that you re a lawyer Tricky Other lawyers speaking with you Rule 4.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the othComment 4: Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. er lawyer or is authorized to do so by law or a court order.
Leaving Office Termination of public service may sometimes be abrupt, but it is always wise to plan for it Rules contemplate lawyers working for the government (Rule 1.11) GENERAL RULE: Can t represent clients on a matter where you were personally and substantially involved during government service even if the lawyer was not acting as a lawyer in government service Government can consent (must be in writing) Matter is defined as, any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties
Practical Issues & Solutions These issues arise on a daily basis, in various forms. When in doubt, default to two common- sense principles:
MIIGWETCH! Questions or Comments? Bryan Newland, President Bay Mills Indian Community (906) 248-8100 bnewland@baymills.org
