Managing Conflicts of Interest by Government Lawyers

Rule 1.11 and Rule 1.7 of the Ohio Rules of Professional Conduct require a city law director to determine whether a conflict of interest exists between or among a city, city officials, or city entities and whether representation may be provided to each by assistant city law directors employed in the law director’s office, according to opinion 2007-4 of the Board of Commissioners on Grievances and Discipline, issued June 8, 2007.

A city law director must first determine whether a conflict of interest exists by analyzing the matter under rule 1.7(a)(1) or (a)(2). The analysis involves determining if representing a client will be directly adverse to another client or if there is a substantial risk of the lawyer’s responsibilities to a client being materially limited by a conflict.

Since a conflict of interest is not created by every disagreement among a city, its officials or its entities, the city law director must determine whether a conflict of interest is permitted by Rule 1.7(b) or precluded by 1.7(c). Under the ameliorating conditions in Rule 1.7(b), the city law director must determine whether competent and diligent representation can be provided, such as through different assistant city law directors. Then they must obtain informed consent confirmed in writing by the affected clients and determine that representation is not precluded by Rule 1.7(c).

Rule 1.7(c) precludes representation on matters with conflicts that are prohibited by law and representation of parties with conflicts that involves assertion of a claim by one client against another in the same proceeding, even with client consent.

While opinion 2007-4 specifically addresses the conduct of city law directors, the same analysis would seem to apply to government lawyers who represent other governmental entities.

For more information on this topic contact Alvin Mathews at 614.227.2312..

This document has been prepared as a general reference for careful lawyers and their staff for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel.

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