Government organizations as clients

The Illinois Rules of Professional Conduct of 2010 provide the fundamental ethical parameters for private practitioners in their representation of an individual client in civil, regulatory and criminal domains. The rules also address, however, the role of in-house or contract counsel for clients that are not individuals, but are instead organizational entities. Even within this sector, the rules are instructive to government attorneys and some of the unique issues that may intersect with their particular area of practice for organizations that are public agencies or bodies politic. To begin, Rule 1.13 outlines the duties and responsibilities of lawyers who are attorneys for all types of organizations, whether they are public or private entities. As a couple of the main provisions describing the generalities of this expansive relationship, the first two paragraphs of this rule set the stage for further discussions of their explanatory comments. Subsections (a) and (b) address this unique attorney-client relationship by noting that the attorney represents the organization as a whole and not necessarily the directorate or administrative staff as explained in the following excerpted provisions:

RULE 1.13: ORGANIZATION AS CLIENT

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a crime, fraud or other violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.

As is generally the case, the courts provided additional insight into the policy underpinnings and practical applicability of the rules as applied to governmental attorneys. For example, the United States Court of Appeals for the Seventh Circuit, No. 01-3386, in In Re: A Witness before the Special Grand Jury 2000-2, No. 98 GJ 596 (April 23, 2002), noted for Illinois, within the realm of attorney-client confidentiality, the following generalized principle in organizational representation:

First, government lawyers have responsibilities and obligations different from those facing members of the private bar. While the latter are appropriately concerned first and foremost with protecting their clients--even those engaged in wrongdoing-- from criminal charges and public exposure, government lawyers have a higher, competing duty to act in the public interest. pp. 7, 8.

In this case, the U.S. Attorney’s Office moved to compel the Chief Counsel of the Secretary of State to testify before a grand jury regarding criminal matters relating to that governmental office. Although the court and the parties concurred on the applicability of attorney-client privilege for organizations in civil and administrative matters, the court ruled that the protection of this discourse did not apply in Illinois for criminal cases. Even more instructive and to the point, the court reasoned through precedent the following formulation:

Public officials are not the same as private citizens precisely because they exercise the power of the state. With this responsibility comes also the responsibility to act in the public interest. It follows that interpersonal relationships between an attorney for the state and a government official acting in an official capacity must be subordinated to the public interest in good and open government, leaving the government lawyer duty-bound to report internal criminal violations, not to shield them from public exposure. pp. 8, 9.

Comment number nine to Rule 1.13 of the Illinois Rules of Professional Conduct of 2010 also provides some supplementary insight specifically for legal counselors serving governmental agencies to add context to the underlying rule and cited court opinion. The comment addresses in some respects the complexities encountered by governmental attorneys not only with the limits and extensions of their purview, but also with the difficulties in providing legal counsel to elected or appointed officials as well as agency employees who act presumably on behalf of the overarching organizational client. These particular provisions are set out as follows:

[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. 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. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. This Rule does not limit that authority. See Scope.

The court recognized and acknowledged the differing levels of governmental authority that are commensurate with distinctive attorney roles in the governmental hierarchy. The explanatory “Scope” as referenced by this Note 9 to Rule 1.13 provides some additional guidance for governmental attorneys that differentiates their role from other private, organizational lawyers. For example, the comment acknowledges that government lawyers may have more authority in acting for their clients than a private practitioner and that an agency staff attorney requires the assistance of a state’s attorney or attorney general for certain aspects of litigation. This scope is set out in note 18 to the Rules’ Preamble as excerpted in the following provision:

[18] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.

Of particular note for these provisions under the Illinois Rules of Professional Conduct of 2010, the corresponding Model Rules of Professional Conduct as issued by the American Bar Association unsurprisingly in their comments to the Preamble [18 Scope] and Rule 1.13 [9 Government Agency], respectively, contain the same provisions. Illinois adopted its own current changes in 2010 to include the commentary, policy and intent for the similar textual provisions. Both sets of rules also rightly acknowledge the impact of other legal and regulatory requirements placed upon government lawyers that must also be complied with in the course of providing advocacy services and legal counsel to a governmental entity as a client.

Please note that the cited state and national provisions mentioned in this summarized overview are merely a starting point from which to begin associated legal research. Please consult the subject laws, rules and interpretations directly for further details on the applicable requirements and obligations generally affecting governmental attorneys as well as affected public employers. 