Revisiting the Client Conundrum: Whom Does Lawyer for a Government Represent, and Who Gives Direction to that Governmental Lawyer?

Abstract

The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal attorney Wayne Witkowski that focuses on the issue in Washington State.

This paper reviews the key professional responsibility rules and Washington cases that affect the analysis, and updates Witkowski’s work with a discussion of Goldmark v. McKenna, Seattle v. McKenna, and various other materials. It observes that Washington State, like many states, follows the “entity model” of identifying public lawyers’ clients. That means that the governmental entity itself is the client — the State, a county, or a city, for example. But within that model, it is still necessary to identify the “duly authorized constituent” or “representational authority” who may serve as the voice of the client for an attorney. Who that authorized representative is will depend in large part on the situational facts and the relevant statutory framework. In most circumstances a lawyer for a governmental entity (including an elected law officer) should look to another person as the authorized representative of the client for policy direction. In narrow circumstances, usually determined by statute (or by charter in the case of a city attorney), the elected law officer will himself or herself be the authorized representative of the governmental client. While on a day-to-day basis we continue to think of the relevant government agency through its duly authorized constituent, as the “client.” But we should keep in mind that usually the entire governmental entity is the ultimate client.

Keywords: Rules of Professional Conduct, RPC, representation, government attorneys, government lawyers, attorneys general, municipal attorneys, organizational clients, local government, state government