Why the Government lawyer may not be the lawyer of the Council or Commission

This Advisor column was originally published in November 2007.

Introduction

"The Care and Feeding of the City or Town Attorney" was published in the Fall 2006 issue of Municipal Research News. That article provided some basic information and emphasized the need for communication among government clients and their lawyers; it only briefly addressed the question of who is the attorney's client. This column focuses more directly on that issue and summarizes the foundations for what is generally understood as the "entity" approach to legal representation of municipal corporations.

From local political struggles over access to legal counsel ("Gold Bar Mayor Vetoes Resolutions of Tyranny," Monroe Monitor, May 15, 2006) to litigation determining who is city attorney ("Legal Drama Unfolding in Benton City," TriCity Herald, August 14, 2006), the management of legal services is regularly a source of dispute. Struggles between various elected officials even create tensions for an elected prosecuting attorney. ("Auditor's Case Ruling Backs County's Position," White Salmon Enterprise, October 5, 2005). State law mandates that a prosecuting attorney "be legal advisor to all" county officers in all matters relating to their official business. RCW 36.27.020. But, when one county officer disagrees with another officer, who is the prosecutor's client? Similarly, when a mayor and council are at odds over an issue involving legal issues, who is the city attorney's client? These issues are not unique to municipal corporations. They have long been a source of debate among corporate lawyers as well as lawyers for other governmental entities. (See, e.g., Rob Roy Smith, The Council's Counsel: The Ethics of Representing Tribal Councils, Idaho State Bar Association Annual Meeting, July, 2006.)

Who is the Attorney's Client?

The answer to the above question is easily stated but difficult to apply: In Washington State, the municipality as an entity is the lawyer's client.

The entity model is one of a number of theories of legal representation that have been considered by legal professionals. Others include the group model and the public interest model. See, Ivan Legler, Once Again: Choosing the Model that Determines Who Are the Municipal Attorney's Clients, NIMLO [IMLA] October, 1994 ("Legler"). See also, W. Witkowski, Who is The Client of The Municipal Government Lawyer, PLI No. 10925 (2007). As discussed in the Legler article, under the group model, an organization "shares" attorneys with some or all of the individuals that make up the organization. For example, the city attorney would represent the mayor, council, board of adjustment, civil service commission, municipal court judge and any other city department. The group model assumes all of the individual clients within the organization consent to the lawyer's representation of each, even in the face of conflict. The model breaks down when an individual (e.g., board of adjustment) disagrees with another (e.g., mayor's planning director), and refuses to waive the conflict between the two.

Under the entity model, the lawyer has only the organization as a client, and not its individual elected officials, department heads, agents or other "constituents." Legler, citing G. Hazard & W. Hodees, The Law of Lawyering, 387 (2nd ed. 1993) ("The Law of Lawyering"). As will be discussed, the entity model has now been formally adopted as the standard in the State of Washington.

A third model, often advocated, is the public interest model. This model is based on the belief that government lawyers should act "in furtherance of the governmental and public interest." Legler cites the argument of the University of New Mexico Law School's Professor Maureen Sanders, Government Attorneys and the Ethical Rules: Good Souls in Limbo, 7 BYU J. Pub. L. 39, 77 (1993). In the public interest model, according to Professor Sanders, either the government's or public's interests are the municipal lawyer's "client." The obvious concern with this model is that the attorney must decide who the client is and what position to take. This model may find application in some states for an elected prosecutor, or a state's attorney general, but it is impractical for most lawyers serving as retained (in house or outside) legal counsel for a municipality.

Washington courts have addressed from time to time the argument that government lawyers are held to a higher standard than lawyers representing the private sector (there are particular standards that apply to criminal prosecution that are not addressed in this column). When acting as regulator, the Washington Supreme Court has stated that government is to act "scrupulously just" when dealing with its citizens. State ex.rel. Shannon v. Sponburgh, 66 Wn.2d 135, 143, 401 P.2d 635 (1965). But that standard does not apply in the normal course of a lawyer's representation of a government client.

While we agree with the basic proposition that the government should be just when dealing with its citizens, we do not believe that an attorney representing the government has a duty to maintain a standard of conduct that is higher than that expected of an attorney for a private party. If we were to impose such a heightened duty on an attorney for the government we would be creating a two-tiered system of advocacy, one for legal representatives of the government and the other for counsel of private parties.

Lybbert v. Grant County, 141 Wn.2d 29, 37-38, 1 P.3d 1124 (2000). While the entity model was not formally adopted until 2006 by the Supreme Court, the Court's 2000 decision in Lybbert signaled that municipal lawyers in their civil representation would not be subject to a "public interest" model.

The Entity Model of Representation

The entity model or theory of representation is now "almost universally" accepted. The Law of Lawyering, 17 11 (2004-2 Supplement). More importantly, it has been embodied in the state's Rules of Professional Conduct (RPC) that became effective September 1, 2006. RPC 1.13 states simply in its initial sentence that "a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." The duty defined in RPC 1.13 applies to governmental organizations, as well. RPC 1.13, Comment 9. But the comment to the RPC candidly recognizes the dilemma for government lawyers:

Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the governmental context and is a matter beyond the scope of these Rules.

The comments to these ethics rules give an example: if an action requiring legal counsel involves a particular employee or "bureau" of a department, that department may be the client for purposes of the Rule. But the example does not solve this riddle: in the event of a lawsuit involving claims of deputy sheriff misconduct, does the prosecutor represent the deputy sheriff; the office of county sheriff; the county; all of the above; some of the above; or none?

Attorney Serves at Direction of Officer who has Power to Decide

The standard set forth in Rule 1.13 is also recognized in another respected treatise, The Restatement of the Law Governing Lawyers, §§ 96 and 97 (2000) ("Restatement"). Under the Restatement, when a lawyer is employed or retained to represent a governmental organization, the interests of the organization (and the attorney's role) are defined by the organization's "responsible agents acting pursuant to the organization's decision-making procedures." Correspondingly, the lawyer must follow the instructions as given by persons authorized to act on behalf of the organization. See Comment A to Restatement § 97. But, "those who speak for the governmental client may differ from one representation to another." Restatement § 97 at Comment C. The Restatement notes one succinct statement of the chain of authority: "[t]he responsibility of an agency attorney is to represent the interests of the officer who has the legitimate power to decide upon the course of action"). 2 Restatement 52, citing Miller, Government Lawyers' Ethics in a System of Checks and Balances, 54 U. Chi. L. Rev. 1293, 1296 n. 7 (1987).

Under the council-manager form of government, there should be little doubt that in most cases the manager will be the officer who has the power to decide upon a course of action. RCW 35A.13.120. A city council does have the authority to approve law suits, even under a mayor-council form of government. RCW 35A.12.100.

Is an Individual Commissioner or Councilmember ever a Client?

In the county context, a majority of the board of county commissioners may direct a certain course of action. But the board (or a county council) cannot employ legal counsel separate from the elected prosecutor, absent court approval. RCW 36.32.200. And see AGLO 1974 No. 69 (authority to contract for legal services limited to the term of the board). See also State ex.rel. Steilacoom Town Council v. Volkmer, 73 Wn. App. 89, 867 P.2d 678 (1994); Tukwila v. Todd, 17 Wn. App. 401, 563 P.2d 223 (1977) (setting forth standards when a city council may hire its own lawyer and pay for such legal services, separate from the city attorney).

It is unlikely that an individual commissioner would be a separate client, unless named separately in a lawsuit. In such an event the prosecuting attorney would determine whether the office of prosecuting attorney could represent the commissioner, without creating conflict with representation of the client county.

Similarly, an attorney may legitimately reject (as a matter of law, but perhaps not for political considerations) a request for legal services by an individual councilmember. In Ethics Opinion 2002-02 (2002), the Rhode Island Supreme Court applied RPC 1.13 and found the city attorney's client was the council as a whole. As a result, the municipal lawyer may comply with the council's request for a redacted itemized statement of prior bills, but the lawyer may not comply with an individual councilmember's requests for unredacted bills unless council, which is client, consents. See Annotated Model Rules of Professional Conduct, 228 (ABA, 5th ed. 2003). Lawyers may often draft ordinances at an individual councilmember's request. But the city, not an individual councilmember, controls the provision of legal services.

Neither Council Alone nor Mayor Alone Constitutes a City

Many cities contract for legal services. See RCW 35A.12.020. Most cities contract through the authority of the city council. RCW 35A.11.010. But the authority of the council to contract for legal services cannot deprive the mayor of the right to such services. This is addressed by the Office of Attorney General in AGO 1997 No. 7. There the Attorney General recognized that the mayor is the "chief executive and administrative officer of the city," citing RCW 35A.12.100.

That the mayor will require legal services from time to time in fulfilling official duties cannot seriously be questioned. Nothing in chapter 35A.12 RCW authorizes the city council to exercise general supervision over the mayor's performance of these duties…

For these reasons we conclude the city council generally lacks authority to contract for the provision of legal services solely under the direction of the city council.

AGO 1997 No. 7 at 4. The Attorney General balances the executive authority of the mayor over ongoing administration of the city, with that of the city council's authority to contract. The authority to contract did not limit the mayor's power to serve as the "officer who has the legitimate power to decide upon a course of action" within the scope of that executive authority. The city attorney must follow that direction under the entity model. If the council disagrees with the mayor (and the city attorney) in such circumstances, the council may be faced with the difficult question of its authority to engage separate legal counsel. For an example of such a situation see State ex.rel. Steilacoom Town Council v. Volkmer, supra (Supreme Court found city council without authority to pay for outside legal services).

This very brief column identifies the foundation for the entity model of municipal legal representation. It provides some examples of conflicts that may occur when municipal entity, and not an individual board or agency of the municipality, is the client. It does not begin to address the extent of issues and conflicts that arise in a government lawyer's representation of a municipal client. For guidance in resolving a conflict issue, a lawyer may call the Washington State Bar Association's Ethics Line, 206.727.8284.