Intra-Governmental Disputes: An RPC Muddle

Abstract

The Rules of Professional Conduct are not written for government lawyers. The RPCs get especially muddled when government lawyers—particularly in-house AGs and City Attorneys—are called upon to represent divisions of the same governmental entity at odds with each other.

This paper focuses on the RPC muddle around disputes within governments, when in-house government attorneys are called upon to assist different sides of an intra-governmental dispute. Those disputes might involve a governor squabbling with a legislature or a mayor wrestling with the city council; a park department disagreement with the stormwater utility; or a city government appealing a ruling of its own civil service commission. Each of those three examples represents a distinct type of intra-governmental dispute, and we’ll return to them later in the paper.

This discussion first considers the most relevant RPCs. It then provides a national overview including: (1) how and why the ABA’s Model Rules of Professional Conduct consciously minimize differences between private and governmental practice; (2) the wide judicial variance in addressing ethical issues around representing disputing governmental divisions; (3) various theories for addressing in-house representation of intra-governmental disputes; and (4) a recommendation of the “best” way out of this ethical confusion.

The paper then turns to Washington State, analyzing the key cases that bear on the RPCs and intra-governmental representations. It argues that the Washington Supreme Court and Court of Appeals decisions have generally had the right results, but for the wrong reasons. The discussion suggests the best practical approach for in-house government lawyers, and recommends RPC amendments the Washington State Supreme Court could adopt to address the muddle.

This paper was presented at the Washington State Association of Municipal Attorneys Spring Conference, held May 4-6, 2022, in Spokane, WA.

Keywords: legal ethics, professional responsibility, government lawyers, intra-governmental disputes, Rules of Professional Conduct, conflict of interest, organization as client, RPC 1.2, RPC 1.6, RPC 1.7, RPC 1.10, RPC 1.13