Ethics laws that affect government attorneys are generally the same rules that apply to all attorneys engaged in the private practice of law. In addition, other specific laws affect government lawyer’s actions and decisions as governmental employees. Examples include: the general rules that apply to all state officials and employees in the Texas Penal Code, Chapter 36; the laws regulating lobbyists in Texas Government Code, Chapter 305; and the standards of conduct in Texas Government Code, Chapter 572.051. It should be noted that these laws form only the minimum standards for government agency ethics policies. It is legal and enforceable for an agency to have a higher standard for its own employees. For example, the Office of the Attorney General has adopted an ethics policy that contains additional requirements for their attorneys.
Just as with any other attorney practicing in Texas, all lawyers employed by state or local governments are subject to the Disciplinary Rules of Professional Conduct promulgated by the Supreme Court of Texas. The conflict of interest rules are found in Rules 1.06 - 1.13 of the Disciplinary Rules.
While the types of conflicts of interest presented to attorneys employed by the government may differ from those faced in private practice, opportunities to err abound nonetheless. The following are the primary rules that influence conflict of interest decisions for government lawyers.
Rule 1.06 prohibits (1) representing opposing parties in the same matter, (2) representing a person in a matter directly adverse to another client’s interests, and (3) representing a person whose interests are adverse to the firm or attorney. This rule has some interesting applicability for many government attorneys, including those employed by the Attorney General’s Office. As the statutory legal representative of the State, the Attorney General often finds himself representing state agencies in direct conflict with one another, even to the point of litigation. In the case of the Public Utility Commission (PUC) v. Cofer, 754 S.W.2d 121 (Tex. 1988), the Public Utilities Regulatory Act and the State Purchasing Act mandated that the Attorney General represent both the PUC and the General Services Commission in all appeals, even when the agencies occupied opposite sides of the same lawsuit.
The Texas Supreme Court, in a decision still considered good law in Texas, held that neither the trial court’s inherent power to insure adversary proceedings nor the principle of separation of powers provided the court with discretion to order that the Attorney General could not represent both agencies. This opinion, and those issued by other courts dealing with similar facts, clearly allows such dual representation so long as there is adequate separation between the individual attorneys handling the litigation, in other words, establishment of the so-called “Chinese Wall.”
Other conflicts that arise from this rule involve attorney-spouses, who may be in private practice and have clients with interests adverse to the state; private financial interests of attorneys, such as stock investments in corporations involved in litigation with the state; and conflicts of interest among clients with diverse interests, such as where an agency executive director and board members may be sued and, as the litigation progresses, it becomes clear that there are differences in the positions and interests of the parties.
Rules 1.09 and 1.10 address situations where attorney-client confidences could be jeopardized or breached because of representation of a client in a matter adverse to a former client or conflicts arising from former or subsequent employment. Because Rule 1.10 applies to the so-called “revolving door” whereby attorneys move from government service to private practice or from private practice to government service, it is vital that all attorneys accepting government employment develop a good understanding of what the rule permits and prohibits.
This is a most important rule for government agency attorneys. An attorney coming to the government from a private firm may not participate in a matter where the attorney represented the private client in the same matter. This would seem to allow government attorneys to participate in anything except matters in which they were directly involved. In reality, they are also limited by confidentiality requirements due to former clients. Any representation that might result in disclosure of client information would also be prohibited. This can narrow the range of matters involving a former client that an attorney could handle. The first comment to this rule does a good job of summing up its intent: “This Rule prevents a lawyer from exploiting public office for the advantage of a private client.” So long as this is kept in mind, much trouble can be avoided. Of course, it also works the other way around; you should not use a public office to work to the detriment of a private litigant.
This rule governs the responsibility of an attorney representing an organization rather than an individual, the usual case in government. The rule deals with internal, rather than external, conflicts of interest. When representing a state agency, the elected or appointed official or board constitutes the legal entity, and is the client. Although as a practical matter, government lawyers usually deal with certain designated agency employees during the course of the litigation much more often than with the board, should any conflict arise between the two, the board is the client.
A frequent source of conflict is the situation where an employee of a state agency is sued as well as the agency. By law, state employees may request representation and indemnity from the State, and the State represents them in such actions. Where there are conflicts between the agency and the individual agency employee, it may be necessary to assign different attorneys to represent the employee and the agency.
This rule prohibits an attorney from knowingly participating in an action by a public service or public interest activity that would conflict with the interest of a client.
It is likely that any governmental entity you go to work for will have an official policy on this issue. For example, the current OAG policy on pro bono legal activity addresses some of this rule. Activities must be approved by the appropriate administration officials, involve no court representation, be performed on personal time and without State resources, and must provide malpractice insurance.
There could be other types of conflict in this area that flow from an attorney’s political, social or civic activities. For instance, an attorney in the OAG Natural Resources Division might be an officer in the state or local Sierra Club, which is contemplating suing the state over an environmental policy that the Division is defending. The attorney would need to recuse himself from the decision and, depending on the circumstances, perhaps even disassociate himself from the organization.