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Public Law Ethics Primer

Public Law Ethics Primer For Government Lawyers

Washington State Municipal Attorneys Association

This primer is published as a service of the Washington State Municipal Attorneys Association. It is not intended to render legal advice or legal opinion, because such advice or opinion can be given only when related to actual fact situations.

The entire contents are copyrighted by the Washington State Municipal Attorneys Association and the Municipal Research and Services Center of Washington. All information as to permission to copy may be obtained from the Municipal Research and Services Center of Washington, 2601 4th Avenue, Suite 800, Seattle, Washington 98101-1159, (206) 625-1300.

Preface
List of Authors
Introduction
Chapter 1: Client Identification
Chapter 2: Client Confidentiality
Chapter 3: Attorney Disqualification
Chapter 4: Statutory Conflicts of Interest for In-House Government Counsel (Excluding Attorneys General)
Chapter 5: Client Ignores Advice/Proposes Improper Action
Chapter 6: The Ethical Issues for Prosecutors
List of Authorities

Preface

The idea of organized ethics materials for government attorneys grew out of a strategic planning session conducted by the Washington State Association of Municipal Attorneys (WSAMA) Board of Directors over four years ago. Ethics was and is a subject of increasing importance to members of the Bar. However, material specifically designed for governmental attorneys are difficult to find. After many discussions within the WSAMA Board and the formation of an ethics committee, the idea of a primer on governmental attorney ethics came to life. What follows in not an exhaustive work, but an introduction to significant areas of ethics law. We chose not to cover ethics for lawyers in the Attorney General's office since that body of law is very specific to that office.

The WSAMA Ethics Committee approached other organizations of government lawyers for assistance with the task. Many of them generously responded and some even provided members to the Editorial Committee. Those contributing authors materials and/or committee members are the Washington Association of Prosecuting Attorneys, the Government Lawyers Bar Association, the Washington Public Port Association, the Washington Council of School Attorneys and the Attorney General's Office.

WSAMA would like to express its deep thanks to the Editorial Committee members who spent many hours of their lives designing and editing this primer: John M. Gray, Tom Tanaka, Margaret Partlow, Mike Finkle, Dan Heid, Ron Clark and Judy Andrews. In addition, the Committee is grateful for the meeting space and word processing contributed by Gottlieb, Fisher & Andrews and Graham & James/Riddell Williams. Judy Andrews deserves special thanks for the many extra hours she spent as our editor-in-chief and word processing coordinator. And, of course, this primer would not exist but for the research and writing work of all the authors. No one received payment or recognition other than your thanks. Please give it to them.

Your thoughts and comments concerning this primer would be very much appreciated. Send them in writing or via e-mail to the WSAMA Board of Directors, the Municipal Research & Services Center, 1200 Fifth Avenue, Suite 1300, Seattle, Washington 98101-1159, or mrscrsc.org.

John Vanek and Sandra Driscoll
Co-chairs, WSAMA Ethics Committee

List of Authors

Client Identification Jennifer Simpson Ogden Murphy Wallace 1601 Fifth Avenue, Suite 2100 Seattle, WA 98101-1686	Client Confidentiality Steve Kravitis Senior Assistant City Attorney City of Tacoma PO Box 11007 Tacoma, WA 98411
Conflict of Interest Alison Chinn Assistant City Attorney City of Vancouver PO Box 1995 Vancouver, WA 98668-1995	Conflict of Interest Debra Quinn Assistant City Attorney City of Vancouver PO Box 1995 Vancouver, WA 98668-1995
Internal Investigations Judith Zeider Chief Assistant City Attorney City of Vancouver PO Box 1995 Vancouver, WA 98668-1995	Attorney as Witness William A. Coats Vandeberg Johnson Gandara First Interstate Plaza 1201 Pacific Avenue, Suite 1900 Tacoma, WA 98402
Screening and Imputed Disqualification Oma LaMothe Senior Deputy Prosecuting Attorney King County Prosecuting Attorney’s Office, E550 Seattle, WA 98104	Statutory Disqualification Celeste E. Zehr, Paralegal Seattle City Attorney’s Office 600 Fourth Avenue, 10th Floor Seattle, WA 98104
Successive Employment Londi K. Lindell City Attorney City of Federal Way 33530 First Way South Federal Way, WA 98003	Successive Employment Bob C. Sterbank Assistant City Attorney City of Federal Way 33530 First Way South Federal Way, WA 98003
Statutory Conflict of Interest Mike Hoge Perkins Coie 1201 Third Avenue, 40th Floor Seattle, WA 98101-3099	Pro Bono Work Arthur Pat Fitzpatrick Chief Prosecutor Kent City Attorney’s Office 220 Fourth Avenue South Kent, WA 98032
Client Ignores Advice/Proposes Improper Action Laurie Flinn Connelly Assistant City Attorney Spokane City Attorney’s Office Spokane Municipal Bldg., Fifth Floor West 808 Spokane Falls Blvd. Spokane, WA 99201	Private Attorney/Public Attorney Zanetta Fontes Warren Kellog Barger Dean and Foster 100 South Second PO Box 626 Renton, WA 98057
Whistleblower Richard Little Assistant City Attorney City of Bellingham 210 Lottie Street Bellingham, WA 98225	Prosecutorial Conduct/Pretrial Issues Ronald H. Clark Senior Deputy Prosecutor King County Prosecutor’s Office W554 King County Courthouse 516 Third Avenue Seattle, WA 98101
Prosecutorial Conduct/Trial Issues Daniel B. Heid City Attorney City of Lakewood 10510 Gravelly Lake Drive SW, Suite 206 Lakewood, WA 98499-5013	Dissemination of Information in Prosecutor’s Possession Michael J. Finkle Assistant City Attorney Supervisor Seattle City Attorney’s Office 710 Second Avenue, Suite 1414 Seattle, WA 98104
Prosecutorial Conflict of Interest Scott Sonju Assistant City Attorney Vancouver City Attorney’s Office City of Vancouver PO Box 1995 Vancouver, WA 98668-1995

Introduction

We have all heard about the rising number of malpractice cases brought against lawyers and are aware of the heightened scrutiny given to lawyer's conduct generally. Lawyers appear to be particularly vulnerable, at least by the excessive numbers of claims, in the area of ethical violations. Such ethical violations, frequently highly publicized, also lend credibility to the pervasive lawyer bashing we all experience. In such a context, it has become incumbent on all lawyers, whoever we represent, to focus more carefully upon ethical rules. It is arguable, however, that those lawyers in the public eye or whose clients are in the public eye, should take even more care to comply with the ethical rules that regulate our profession. In fact, the very existence of an attorney/client privilege in the government setting is increasingly challenged. Recent federal cases-with the usual political overtones-address the complex issues of defining the government lawyer's client, in what circumstances a privilege does or does not exist and when otherwise privileged communications are not protected.

The Washington Rules of Professional Conduct which are the primary source of such ethical rules, clearly apply to government lawyers, as well those representing private entities. See, e.g., Washington v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990). However, most attention in interpreting the RPC and other ethical rules has focused on the conduct of lawyers in private practice. Nonetheless, lawyers who have a government entity as their client must be sensitive to several twists on ethical issues that particularly arise in governmental settings. Additionally and perhaps more compellingly, government lawyers often must respond to and resolve ethical issues within a public and political setting and in a way which engenders, rather than undermines, public trust in government

This book focuses on the ethical rules which commonly arise in a government practice. identifying the unique twists and turns that attorneys with public entity clients often face. It provides resources necessary to begin to address and resolve such ethical issues when they arise. It relies heavily on the following sources which contain and interpret the ethical rules applicable to government lawyers:

Washington Rules of Professional Conduct. Adopted in 1985, these rules replaced the Code of Professional Responsibility, which in turn had replaced the older Canons of Professional Ethics. The Washington RPCs are largely, but not wholly based on the 1983 American Bar Association Model Rules of Professional Conduct. See R. Aronson, "An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed," 61 Wash. L. Rev. 823 (1986), for a discussion of the RPCs.
Published Court Opinions. The Washington Supreme Court and Washington Court of Appeals write disciplinary decisions as well as opinions that relate to a lawyer's ethical duties.
Formal and Informal Opinions of the Washington State Bar Association. Each edition of Resources, the annual WSBA directory contains all of the currently outstanding formal and informal ethics opinions of the Rules of Professional Conduct Committee and the Board of Governors.
WSBA Counsel Staff. WSBA counsel staff answer legal ethics questions of Washington attorneys. There is no charge and counsel are often able to answer questions without delay. Where necessary, counsel staff may refer a question to the Rules of Professional Conduct Committee for further analysis.
Opinions of Other Bar Associations. The ABA Committee on Ethics and Professional Responsibility also issues opinions on ethics matters. While not binding in Washington, these opinions provide valuable assistance when Washington authority is unclear or nonexistent. The ABA also maintains a free ethics research service known as ETHICSEARCH for ABA members.

Chapter 1: Client Identification

I. WHO IS THE CLIENT

A. Potential Clients of a Government Lawyer.

The elected officials;
The staff;
The governmental entity as a whole;
The general public; or
A combination of the above?

B. Issues Arising in Client Identification. The identity of the client is vital to determining certain issues, including:

Who shall the lawyer take direction from?
Whose "interests" is the lawyer charged with protecting?
Whose confidences is the lawyer obligated to protect?

II. DIFFERENT APPROACHES TO DETERMINING THE IDENTITY OF THE MUNICIPAL ATTORNEY'S CLIENT

A. The Entity Approach.

General Rule. Under the Entity Approach, the lawyer represents the governmental entity as a whole, acting through its officials.
The Recent Whitewater Case Supports the Entity Approach. The Eighth Circuit Court of Appeals recently held that White House lawyers do not represent the President and First Lady as individuals, but rather represent the White House as a whole and the officials only in their official capacities. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997). In requiring the White House attorneys to turn over their notes of conversations with Mrs. Clinton, the Court held that no personal attorney-client relationship exists between Mrs. Clinton and the White House attorneys. The Court based its decision, in part, upon the fact that the White House itself is not subject to criminal liability, and therefore the creation of an attorney-client relationship between officials who may have committed criminal acts and the White House lawyers would "represent a gross misuse of public assets." Id. at 12. See infra Chapter 2, Section III.B.2 for further discussion.
Consistent with Corporate Model. The Entity Approach is more consistent with a private corporate lawyer's role of taking direction from the board of directors for the benefit of the corporation as a whole and is supported by the ABA Model Rules (i.e., ABA Model Rule 1.13(a); c.f. Upjohn Company v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677 (1981)).
Note: ABA Model Rule 1.13 was not adopted in Washington's version of the RPC, but Washington seems to follow the principles encompassed in ABA Model Rule 1.13.
Advice and Representation of Entity Officials. The entity concept includes representing and advising the entity officials insofar as the officials are engaged in the "conduct of public business."
Washington Law Supports the Entity Approach.
Independent Judgment. The lawyer should continue to exercise independent judgment in informing the entity regarding the applicable law and the lawyer's opinion.
Practice Consideration: If internal conflict exists between officials, and the lawyer is receiving conflicting directions, the lawyer should take the issue to the highest authority within the entity to resolve the conflict and should provide that highest authority with a reasoned legal opinion on the issue. The lawyer may need to have the political body vote on the directions given to the lawyer.
Benefits of the Entity Approach.
Practice Consideration: If staff members, officials or members of the public appear to believe that you represent them in their individual capacity, clarify to them that you represent the municipality as a whole as directed by the public officials. See ABA Model Rule 1.13(d).

B. The Public Interest as the Client.

General Rule. Under the Public Interest Approach, the lawyer represents the "public as a whole" because the government is a composite of the people.
Lawyer as Conscience of Municipality. The lawyer becomes the "maker of the conscience of the municipality."
Consistent with Prosecutor's Role Under RPC 3.8. This approach is consistent with RPC 3.8 for Prosecutors. The prosecutor in a criminal case shall:
Case Law.
Public Interest Approach in Washington. There is no evidence that Washington follows the public interest approach; however, prosecutors should pay special heed to RPC 3.8 (quoted above). See infra Chapter 6, Section II.B.2 and Section II.E.2 for discussion of RPC 3.8.
Drawbacks of the Public Interest Approach.

III. DUAL INTERNAL REPRESENTATION

A. Representing Two Separate Agencies within a Single Municipality.

When Issue Arises. This situation may arise when the lawyer representing the decision-maker (i.e., the City Council) is asked to act as an advocate on behalf of the staff during a contested hearing held before the decision-maker. (Example: appeal to the City Council of a building permit denial with the City Attorney advising the City Council on the law and assisting staff in presenting evidence to support the denial.)
Washington Law Permits Dual Internal Representation. Washington law supports the concept that lawyers for a government entity may represent different departments in the same matter.
Other Jurisdictions. Other states clearly prohibit dual internal representation due to different state statutes. For example, different attorneys from same firm cannot hold both the position of public prosecutor and planning board attorney for same city. In re Professional Ethics Opinion 452, 432 A.2d 829 (N.J. 1981); see also Monroe Township Board of Adjustment v. Mayor and Township Committee, 511 A.2d 678 (N.J. 1986) (municipal attorney cannot represent both municipality and board of adjustment pursuant to state statute).

B. Representing Internal Tribunal and a Party Before that Tribunal.

General Rule. Parties have due process entitlement to an impartial decision-maker, but absent a showing of specific bias, overlapping functions (representing the decision-maker and acting as an advocate) performed by the municipal attorney do not amount to a constitutional violation. Howitt v. Superior Court, 5 Cal. Rptr. 2d 196, 199 (Cal. App. 4 Dist. 1992); Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L.Ed.2d 712 (1975); Kloepfer v. Commission on Judicial Performance, 49 Ca. 3d 826, 782 P.2d 239 (1989).
Non-Adversarial Proceeding. In non-adversary style proceeding, no constitutional due process violation arises when same attorney represents both the decision-maker and a party. Howitt, 5 Cal. Rptr. 2d at 199.
Adversarial Proceeding. In adversary style proceeding, when the same attorney represents both the decision maker and a party, constitutional due process problems may arise. Id.
Resolution of Constitutional Problem. Constitutional problem is solved if representation is undertaken by separate attorneys from same office and the advisor for the decision-maker is screened from the attorney for advocate. Id. at 203.
Rule in Washington. Washington follows the general rule which holds that the assignment of separate public attorneys to represent different public officers in a proceeding preserves the appearance of fairness. See Amoss, 40 Wn. App. at 686; see also discussion supra at Section III.A.2.

Practice Consideration: If a municipal attorney's office consists of more than one attorney, have one attorney represent the decision-maker and the other act as advocate. Make sure a screen is in place between the two attorneys for this issue. Otherwise, the safest procedure in an adversary proceeding is to hire outside counsel to represent either the decision maker or the party. As a practical matter, if the municipal attorney has been advising the staff on the issues involved, that same attorney should not also represent the decision-maker.

Hypothetical: A developer applies to a city for permits to develop a subdivision. The city denies the permits. The City code provides that the applicant may appeal the permit decision to the City Council. A single individual is the City Attorney. The City Attorney usually advises both the City Council and the City building and planning staff. During the appeal hearing, if the individual City Attorney will be acting as an advocate on behalf of the building and planning staff, and no other attorney will solely represent the City Council, then all "advice" or legal opinions of the City Attorney should be given to the City Council in the presence of all parties (i.e., applicant and staff) with the applicant or his attorney being provided an opportunity to respond. The City Attorney should avoid all ex parte contacts with the City Council on this issue and should not be present during any executive sessions discussing the issue. This is especially important if the City Attorney's advice formed part of the basis for the subdivision denial. Further, each party should be entitled to provide a proposed form of the written decision to the City Council. Obviously, the best situation is for two attorneys from the City Attorney's office to represent the different parties (City Council and staff) and for those attorneys to be screened from each other on the issues involved.

Chapter 2: Client Confidentiality

I. GENERAL

A. Rule of Professional Conduct - Text of RPC 1.6 - Confidentiality.

(a) A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in Sections (b) and (c).

(b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a crime; or

(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, to respond to allegations in any proceeding concerning the lawyer's representation of the client, or pursuant to court order.

(c) A lawyer may reveal to the tribunal confidences or secrets which disclose any breach of fiduciary responsibility by a client who is a guardian, personal representative, receiver, or other court appointed fiduciary.

B. Statute.

1. Text of RCW 5.60.060(2). "An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice thereon in the course of professional employment." RCW 5.60.060(2).

2. Common Law Privilege. This same privilege is extended to the client under common law rule. It applies to communications and advice and includes documents which contain privileged communications. The privilege is not absolute, but rather strictly limited to the purpose for which it exists. Pappas v. Holloway, 114 Wn.2d 198, 203-204, 787 P.2d 30 (1990).

3. The Purpose of the Rule. "[T]o encourage free and open attorney client communication by assuring the client that his communications will be neither directly nor indirectly disclosed to others." Heidebrink v. Moriwaki, 104 Wn.2d 392, 404, 706 P.2d 212 (1985) (quoting State v. Chervenell, 99 Wn.2d 309, 316, 662 P.2d 836 (1983)).

C. Difference Between Statute and RPC. "The rule of confidentiality found in Canon 4 of the code is considerably broader than the statutory attorney-client privilege discussed above. The provisions of the code cover both 'confidences', which is coextensive with the statutory privilege, and 'secrets,' which 'refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client'." Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984) (comparing Canon 4 of the Canons of Professional Ethics (the precursor to RPC 1.6) to RCW 5.60.060(2)).

D. General Discussion. The Washington Supreme Court provides a general discussion of the statutes, RPC and Washington case law related to the attorney/client privilege in Dietz v. Doe, 131 Wn.2d 835 (1997).

II. APPLICATION TO GOVERNMENT ATTORNEYS

A. Generally.

1. General Rule Applicable to Government Lawyers. The general rule applies to the attorney for a governmental organization. Port of Seattle v. Rio, 16 Wn. App. 718, 559 P.2d 18 (1977). Public agencies are entitled to effective legal representation. To obtain effective advice, the protection of the attorney-client privilege is essential. This case related to an exception to the Open Public Meetings law. See infra Chapter 2, Section V. However, the language of the case spells out the basic principle, applicable to public agencies and client confidentiality as well.

2. Recitation of Basic Principle. "When a communication is confidential and concerns contemplated or pending litigation or settlement offers, the necessity for the attorney-client privilege exists as between a public agency and its lawyers to as great an extent at it exists between other clients and their counsel." Id. at 725.

3. Conclusion. The attorney's obligations and the client's privilege are both preserved in their essential form with respect to public agencies.

4. Survival upon Termination of Attorney-Client Relationship. The obligation survives the termination of the attorney-client relationship. Alpha Inv. Co. v. Tacoma, 13 Wn. App. 532, 534, 536 P.2d 674 (1975).

Note: While this case involved a conflict of interest question, the rationale was the attorney-client privilege and its survival after termination of the relationship.

5. Confidentiality and Avoidance of Appearance of Professional Impropriety. The obligation may have additional impact, as in Alpha Inv. Co. v. Tacoma, 13 Wn. App. 532, 536 P.2d 674 (1975), where the attorney's duty to maintain a client's confidences, combined with the need to avoid even the appearance of professional impropriety meant that the client could prohibit a former public agency attorney from representing an adverse party without having to prove possession of confidences or disclosure thereof. "Only by application of this rule can the client, Pierce County and all its citizens, be absolutely certain that no breach of confidence was the cause of any adverse ruling which might occur in this case." Id. at 535.

B. Exceptions.

1. Court Order. Attorney may disclose information if under court order. Seventh Elect Church v. Rogers, 102 Wn.2d at 534. However, a trial court ordering disclosure should stay any contempt proceeding with respect to a good faith claim of privilege pending appellate review of the issue. Id. at 536. See also Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968). But see Matter of Kerr, 86 Wn.2d 655, 662 n.2, 548 P.2d 297 (1976), where a claim of privilege did not justify disobedience of a subpoena duces tecum duly served.

2. Furtherance of a Crime. The attorney-client privilege is not applicable to a client's remarks concerning the furtherance of a crime, fraud or to conversations regarding the contemplation of a future crime. State v. Hansen, 122 Wn.2d 712, 720, 862 P.2d 117 (1993). See State v. Richards, 97 Wash. 587, 167 Pac. 47 (1917); State v. Metcalf, 14 Wn. App. 232, 540 P.2d 459 (1975), rev. denied, 87 Wn.2d 1009 (1976).

3. Employees of Client Corporation. See Odmark v. Westside Bank Corp. Inc., 636 F. Supp. 552 (W.D. Wa. 1986) (joint privilege employees and corporation-corporate counsel did not have an attorney-client relationship with individual officers and employees). But see Hearn v. Ray, 68 F.R.D. 574 (Wash. 1975) (state prison officials are "clients" of the Attorney General; but note that some communications not included).

4. Two Clients with Same Attorney. Note the possible analogy to the cases of two clients with the same attorney. See Cummings v. Sherman, 16 Wn.2d 88, 132 P.2d 998 (1943), where the impact on the privilege was to defeat it. This is why the public agency counsel must not forget that the client is the agency not the individual official, though the privilege may cover the official. While the agency may act through the decisions of the official, the distinction is still important, particularly in ethical situations where it needs to be remembered who owns the privilege and where the attorney's primary loyalty must reside. See infra Section III.B.2 (Recent Developments) below.

C. Waiver.

1. General Rule. The privilege with respect to communications between a client and an attorney is the privilege of the client alone, and it may be waived by the client testifying or otherwise alluding to the substance or content of the communication. Hunt v. Blackburn, 128 U.S. 464, 9 S. Ct. 125, 32 L. Ed. 488 (1888), cited in Malco Manufacturing Company v. Elco Corporation, 307 F. Supp. 1177, 1178 (E.D. Pa. 1969); see also Eastern Technologies Inc. v. Chem-Solv. Inc., 128 F.R.D. 74, 76 (E.D. Pa. 1989).

2. Washington Cases in Accord. The privilege may be waived, but waiver must be distinct and unequivocal. State v. Ingels, 4 Wn.2d 676, 713, 104 P.2d 944 (1940). The privilege belongs to the client and not the attorney, and actions, such as testimony by the client, may constitute waiver. Id. at 714.

3. Malpractice Waiver. The privilege is considered waived if the attorney is sued by the client for malpractice. Pappas v. Holloway, supra, 114 Wn.2d 198, 204, 787 P.2d 30 (1990). See also Stern v. Daniel, 47 Wash. 96, 98, 91 P. 552 (1907).

4. Implied Waiver. In Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), the United States District Court postulated an implied waiver test. There is an implied waiver where (a) there is an affirmative act, such as filing a suit or testifying on the subject, (b) the affirmative act places the protected communication in issue, and (c) an application of the privilege would deny the other party information vital to the defense. In Pappas v. Holloway, supra, the Washington Supreme Court followed Hearn, though limited to the facts of that case.

Hypothetical: A disappointed bidder files an action seeking to enjoin award of the contract by a municipality claiming favoritism and conflict of interest. The City wishes to present the testimony of the Mayor to the effect that the contract was awarded in accordance with the law and after advice by the City Attorney. If the testimony is presented that the City officials relied on attorney advice, is the privilege waived with respect to the advice given? Under the above waiver tests the answer is yes.

Practice Consideration: Caution should be exercised with respect to how far the door may be opened with this type of testimony. If the attorney is in fact a critical witness and the client wants to waive the privilege and present the testimony, it would seem advisable to document this with a distinct and unequivocal waiver executed by an official authorized to act for the client.

5. Bad Faith or Fraudulent Conduct. The attorney-client privilege may be lost through bad faith dealings or fraudulent conduct. Seattle Northwest Securities Corp. v. SDG Holding Co., 61 Wn. App. 725, 812 P.2d 488 (1991); Escalante v. Sentry Ins. Co., 49 Wn. App. 375, 743 P.2d 832 (1987), rev. denied, 109 Wn.2d 1025 (1988).

6. Inadvertent Waiver. There is a split of authority with respect to accidental release of information. Some courts hold any disclosure, however unintentional, defeats the privilege. See, e.g., In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989). Other courts reach the opposite result, arguing that only an intentional relinquishment of a known right is effective. Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F. Supp. 936, 938 (S.D. Fla. 1991); Lois Sportswear v. Levi Straus & Co., 104 F.R.D. 103 (S.D. N.Y. 1985).

a. No Washington case on this issue has been discovered. However the other Washington cases on waiver suggest that our court will be receptive to a third approach, which is the balancing test applied persuasively by a number of courts. See Shriver v. Baskin-Robins Ice Cream Co. Inc., 145 F.R.D. 112 (D. Colo. 1992).

b. The balancing test considers five factors in evaluating an inadvertent release of information to determine if the privilege should be regarded as waived by the release. These factors are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of the disclosure; and (5) any overriding issues of fairness. Shriver, 145 F.R.D. at 115. See also Westinghouse Electric Corp. v. Republic of Philippines, 951 F.2d 1414 (3rd Cir. 1991); Kansas City Power & Light Co. v. Pittsburg Midway Coal Min. Co., 133 F.R.D. 171 (D. Kan. 1989).

Practice Consideration: By far the most important of these factors is the first one, because it is the one factor over which the attorney will have the most control. Documents, particularly communications to the client which are privileged, should be identified as such to reduce the possibility of inadvertent release. A large and complex file ought to have a privilege subfile, so that documents which should not be released are filed appropriately. (There is nothing worse than discovering that the engineering documents that comply with your opponent's discovery request fill 28 archive boxes and the client never created any subfile for attorney-client communications.)

c. Does a press leak by an official constitute wavier? Probably not. The privilege belongs to the public agency, not the individual official who would be acting for their own interests. The extent of the precautions taken and other factors noted above could then come into play.

III. APPLICATION TO OFFICIALS OF THE PUBLIC ENTITY

A. Which Employees and/or Officials are Covered by the Privilege?

1. Control Group Theory. The control group theory holds that the privilege applies "if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in the decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority." City of Philadelphia v. Westinghouse Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962), cited in Barr Marine Products Co. Inc. v. Borg-Warner, 84 F.R.D. 631, 634 (E.D. Pa. 1979). See also Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962).

2. Extent of Control Group. "While the attorney-client privilege may in certain instances extend to lower level employees not in a "control group, "the privilege extends only to protect communications and not the underlying facts." (citation omitted) Wright v. Group Health Hosp., 103 Wn.2d 192, 195, 691 P.2d 564 (1984).

3. Validity of "Control Group" Concept. In Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), a corporation's general counsel conducted an internal investigation regarding certain questionable payments to foreign governments. The federal government sought to compel production of communications with the attorney. The Court of Appeals found that the communications with certain overseas employees were not communications with officers and agents responsible for directing the corporation's actions in response to legal advice, and thus were not communications with the client. This was clearly a "control group" analysis.

a. The Supreme Court reversed the Court of Appeals in a decision which severely criticized the "control group" analysis. "In the corporate context, however, it will frequently be employees beyond the control group . . . who will possess the information needed by the corporation's lawyers." Upjohn, 449 U.S. at 391, 66 L. Ed. 2d at 592.

b. "The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation." Upjohn, 449 U.S. at 392, 66 L. Ed. 2d at 593.

c. However, while criticizing the control group test for potential uncertainty of application, the Court noted that the communications concerned "matters within the scope of the employees' corporate duties . . ." Upjohn, 449 U.S. at 394, 66 L. Ed. 2d at 594. Furthermore, the Court noted that it was only deciding this particular case on its facts and that these matters would, of necessity require resolution on a case by case basis. (This approach hardly addresses the criticism of the control group analysis and leaves the matter of the scope of the employee's duties as a relevant consideration.)

d. It should also be noted that Wright v. Group Health Hosp., supra, in which the Washington Supreme Court used a control group approach was decided three years after Upjohn. Consequently, the question of an employee's duties and responsibilities will still require some consideration by counsel.

Hypothetical: A janitor is involved in a disciplinary matter, and claims that what is really happening is discrimination. His foreman, a working level supervisor, attends a meeting with the next level supervisor and the County's Attorney to discuss the discrimination claim. Are discussions which take place in front of the low level supervisor privileged? What about working supervisors or foremen? Arguably those employees and officers who are a necessary part of the process to make the appropriate decision should fall within the ambit of the protection.

B. Discussion.

1. Individual v. Corporate Identity. Additionally, these questions may be subject to political controversies, in which the legislative body and the public may be divided as to where the public's interests lie. Since the public body can only act through individuals, the individuals' interests in confidentiality must be balanced against the public's interests in the actions of the particular governmental body. Moreover, there is a certain tension between the individual actor and the corporate entity because in circumstances where the actor has done wrong the corporate entity may need to defend itself on the basis of the corporate official's wrong doing. (On the other hand, high enough officials make decisions for the company that may include determining who is included in the defense of a claim.)

2. Recent Development. In Re Grand Jury Subpoenas Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997). This widely reported development in the Whitewater case surprised many commentators by drawing a distinction between the status of government attorneys and corporate attorneys. Previously the argument, advanced elsewhere in this chapter, had been to reason from the premise that the logic of Upjohn applied equally to the government attorneys. The Eighth Circuit has altered that assumption.

a. Facts. The Office of the Independent Counsel (OIC) subpoenaed documents created during a meeting between Hillary Clinton, her personal attorney and attorneys from the Office of Counsel to the President. The White House declined to produce the documents asserting attorney-client privilege and attorney work product doctrines. The documents are notes taken by an Associate Counsel to the President.

b. Procedural History. The White House asserted both attorney-client privilege and the work product doctrine (abandoning claims of executive privilege). Mrs. Clinton personally appeared and asserted her own attorney-client privilege. The lower court avoided the issue of whether a federal governmental entity could assert the privilege to avoid response to a grand jury subpoena and decided that the conversations (and notes) were privileged because both Mrs. Clinton and the White House had a "genuine and reasonable belief" (mistaken or not) that the conversations were privileged.

c. 8th Circuit Opinion. The Court of Appeals overruled the District Court. The Court began with a clarification of the issues. The privilege under consideration is strictly a governmental privilege, not the one existing between Mrs. Clinton and her personal attorney. Further the decision clearly limits itself to this particular context, leaving future courts to explore other contexts of the privilege and its applicability. The Court regarded two cases as most important in deciding this case: United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) and Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

d. Analysis of the Opinion. The issue was narrowly drawn by the Court (whether an entity of the federal government could use the attorney-client privilege to avoid complying with a subpoena from a federal grand jury). The case was, as the court noted, decided upon the basis of federal common law and in the context of a criminal matter. The court also found that Mrs. Clinton was not the client of the White House Counsel's Office and that her reasonable though mistaken belief that the communications were confidential was irrelevant. Additionally, a number of statements in the opinion, arguably dicta, provide some concern for arguments that might be made in other contexts respecting the privilege.

i. Privileges are exceptions to the general rule and not to be lightly treated, expansively applied or construed in derogation of the truth.

ii. Nevertheless, important differences between the government and nongovernmental organizations, such as business corporations, weigh against the application of Upjohn to the Whitewater case.

iii. The strong public interest in honest government and in exposing wrong doing by public officials would be ill-served by recognizing a governmental attorney-client privilege applicable to criminal proceedings inquiring into actions of public officials.

iv. An official who fears that he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a governmental attorney.

Hypothetical: The Mayor advises you that you should win the upcoming law suit easily because he took the precaution of secretly taping all his meetings with his former deputy, the current plaintiff. Your client is the City, not the Mayor. While in most cases the official acts for and on behalf of the client, he or she does not do so when violating the law.

Practice Consideration: When is it necessary for a governmental attorney (ethically) to advise a public employee or official that he/she should secure private counsel? Any time the attorney believes that the interests of the individual interests of the official will conflict with those of the public agency. If the only defense available to the public agency is that the official acted improperly and without authority then this would be necessary.

3. Conclusion. Not all public employees are necessarily "the client" for purposes of the attachment of the privilege. However, limiting the privilege to employees or officers who have the authority to speak for and bind the corporation is too restrictive. See discussion below.

Practice Consideration: An attorney's meeting and discussion with employees, if they are not involved with the decision process, may well not be privileged. Even a meeting with the control group, at which others are present may cause some difficulty. If the conversation at a staff meeting is moving into areas of attorney-client privilege, then the attorney needs to be conscious of who is present and whether the attendance needs to be reduced to preserve the privilege. If employees who are clearly not part of the "control group" must be interviewed to seek information for a control group decision, it would be best done in a separate meeting.

4. Exceptions to RPC 1.6 in the Public Arena.

a. Unlawful Action. Under certain circumstances it may appear to counsel that the public agency is contemplating government action which is not lawful. The rule states that the attorney may reveal a client secret to prevent the client from committing a crime.

Question: Is the government attorney free of any obligation to disclose wrongful conduct as long as it is not criminal? Moreover, the rule is stated in terms of future conduct, not conduct that has already occurred. But the public agency lawyer has an easier answer than the private counsel. The crime, if any, would have been committed by an individual. The commission of criminal acts could never be within the scope and course of employment of a public official. Hence, when the individual commits criminal acts, such individual could not be acting as a representative of the public agency and thus could not be the client or acting for the client under these circumstances. This analysis is easy where the illegality is clear.

b. Breach of Client's Fiduciary Duty. A narrow construction would point out that a government is not likely to be a guardian, personal representative, receiver, or court-appointed fiduciary. A more liberal construction would take heed of the fact that the public agency may have fiduciary duties in several settings, such as, for example, the holders of employee retirement funds.

Hypothetical: As a municipal attorney advising a retirement system official you are asked to review an employee's eligibility for retirement. The eligibility depends on an interpretation of a particular provision of the retirement law. Based on your legal research, you believe the provision would be interpreted in the employee's favor and so advise the official. The retirement system official states that the system prefers another interpretation and advises you to keep your opinion of the error in their interpretation confidential. You later learn that the employee was told, "Our lawyers looked into it and you are not entitled to the benefit."

Analysis: Your legal advice to the client is privileged and you may not be questioned with respect to it. The fact that the employee may have an arguable claim is a client secret, the disclosure of would violate the privilege. It would also be embarrassing and detrimental to the "official" who administers the system. However, would it be detrimental to the client, which is the public retirement system? The system has no interest in unfairly denying benefits, so that the "official" in charge may look good. Moreover, the concealment of the potential retirement rights violates the "official's" fiduciary duty to administer the fund for the benefit of the members. But, this analysis only works if the public official is intentionally concealing from the claimant a benefit that the claimant has a right to expect. What if the matter involves an interpretation adopted by the public official, which, while the weaker argument, is still plausible? Your advice is that, if challenged, it is likely that the claimant will prevail. The public official replies that if you maintain the client's secret, there will not be a challenge to the preferred interpretation. Does the attorney's duty of zealous representation and the privilege together result in a proper silence? Can counsel go so far as to disclose the possibility of another interpretation and advise the claimant to seek independent counsel?

C. Indemnity for Public Officials. Many municipalities have ordinances providing indemnity for their officers which require a determination that the official acted within the scope and course of his or her authority and is cooperating appropriately in the defense of the action.

Hypothetical: Are communications with an official of a public agency, which would be privileged under normal circumstances, rendered non-privileged because the official has been found to be acting beyond the scope of his employment? No. Even if it is determined that the official's status does not entitle him or her to a defense, the communication itself would be protected since it occurred through the official as a representative of the client.

Practice Consideration: If this type of enactment protects the officials of a public agency and litigation is commenced in which officials are named individually, the determination of status should proceed expeditiously. The public agency attorney may enter an appearance on behalf of all defendants, but an official determination is desirable before answering the complaint in most cases.

IV. PUBLIC DISCLOSURE LAW

A. Public Disclosure Act. A related area of the law is the Public Disclosure Act, Chapter 42.17 RCW. Unless advice to clients is properly privileged, it may be subject to disclosure.

B. General Rule. As a general rule all documents should be regarded as public unless a specific exception applies. See Hafemehl v. University of Washington, 29 Wn. App. 366, 628 P.2d 846 (1981). Exemptions from disclosure are narrowly construed to effect broad public policy favoring disclosure. The Public Disclosure Act is interpreted liberally to effect this purpose of open government. Also, note that, while interpretations of the Freedom of Information Act may be used on a general basis, the Washington Supreme Court has commented on the fact that the statutes are significantly different. See, e.g., Servais v. Port of Bellingham, 127 Wn.2d 820, 904 P.2d 1124 (1995); Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993). See generally the MRSC publication Public Records Disclosure for Washington Cities and Towns, Report No. 34 (1996).

V. OPEN PUBLIC MEETINGS

A. Open Public Meeting Act Generally. This statute deals with when and under what circumstances a public attorney may advise an assembled council or board.

B. Basic Rule. The Open Public Meetings Act (the "Act"), Chapter 42.30 RCW, is to be liberally construed as remedial in nature. Port Townsend Publishing Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).

1. General Rule. "All meetings of the governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter." RCW 42.30.030.

2. Applicability of the Act. The Act applies to "all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of the state and subdivisions thereof." RCW 42.30.010. See definition of "public agency" in RCW 42.30.020(1).

3. Purpose of the Act. The purpose of the Act is to permit the public to observe all steps in the making of governmental decisions. The governing body is the body which actually makes the policy and rules. Cathcart v. Anderson, 85 Wn.2d 102, 530 P.2d 313 (1975). A subcommittee is required to comply with the Act when acting on behalf of the governing body. AGO 1986, No.16.

4. Violation of the Act. Action taken in violation of the Act is null and void. RCW 42.30.060. Mason County v. PERC, 54 Wn. App. 36, 40-41, 771 P.2d 1185 (1989), rev. denied, 113 Wn.2d 1013, 779 P.2d 730 (holding that the Act applies to collective bargaining sessions with decision-making representatives of the public agency).

C. Exceptions.

1. No Official Business Transacted. "Action" means the transaction of any official business of the public agency. Matter of Recall of Estey, 104 Wn.2d 597, 707 P.2d 1338 (1985). A meeting occurs only when action takes place. A gathering of members of the governing body does not automatically constitute a meeting. Id.

2. Governing Body. The Act applies to governing bodies of Washington public agencies. Advisory committees including agencies which cross state boundaries are not subject to the law. U.S. v. State of Oregon, 699 F. Supp. 1456, (D. Oregon, 1988), aff'd, 913 F.2d 576, cert. denied, 501 U.S. 1250, 111 S. Ct. 2889, 115 L. Ed. 2d 1054.

3. Matters Relating to Litigation.

a. This exception is rooted in the need for public agencies to have effective legal representation. To obtain effective advice, the protection of the attorney-client privilege is essential. "When a communication is confidential and concerns contemplated or pending litigation or settlement offers, the necessity for the attorney-client privilege exists as between a public agency and its lawyers to as great an extent at it exists between other clients and their counsel." Port of Seattle v. Rio, 16 Wn. App. 718, 725, 559 P.2d 18 (1977).

b. "A communication between an attorney and a public agency client must pass a four-step test to qualify as a exception to the right-to-know statutes: (1) The communication must originate in a confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained . . . ." Id. at 725.

VI. EXECUTIVE SESSIONS

A. Statute (RCW 42.30.110).

1. Generally. Executive sessions are exempt from the Open Public Meetings Act and its requirements.

2. When Authorized. Executive sessions are authorized in eleven specified circumstances. The principle justification for each exemption is that the potential for public loss by public discussion of the particular matter outweighs the potential gains of a public process. Some areas with most potential for legal concern are noted below:

a. Acquisition of real property where public knowledge would increase the price including discussions of the sale or lease price of property. Port of Seattle v. Rio, supra, 16 Wn. App. at 725.

b. Review of negotiations on the performance of publicly bid contracts.

c. Consideration of qualifications of applicants for public employment, including general discussions as to the advisability and potential funding for hiring future unnamed employees. Port Townsend Publishing Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).

d. Consideration of complaints or charges brought against a public officer or employee. Columbian Pub. Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983).

B. Additional Considerations.

1. Change of Subject. What should counsel do when, in executive session, the discussion wanders away from the topic for which the executive session was convened? How far from the topic must the discussion be before the attorney has a duty to advise that the executive session is no longer authorized?

Hypothetical: In an executive session to discuss litigation relating to a City's zoning ordinances, the Mayor suddenly says, "Now that the media's out of here, let's plan how we're going to adopt this new newspaper tax." Despite cautioning the Council that this topic is not authorized for executive session, the discussion continues on the issue of the tax. What is the attorney's ethical duty with respect to the unlawful meeting? The attorney should warn the public body that it is authorized to conduct an executive session for certain limited purposes, and if it wishes to proceed with other matters, the public meeting should reconvene.

2. Inadvertent or Intentional Disclosure as Waiver. Can an executive session's confidentiality be waived by inadvertent or intentional disclosure of the discussions? Probably not, as the individual making the disclosure (whether inadvertent or intentional) is not acting on behalf of the public body. Perhaps the analogy should be drawn to the earlier analysis of waiver of privilege, and who is and is not the client.

3. Subject Raised in Public Meeting. How should a public agency attorney deal with the circumstance where matters which could or should be addressed in executive session are raised in the council or board meeting by a single member? It is recommended that a reminder of the potential need for executive session be made. In the fact of persistence the position recommended is that executive session is the decision of the public body and if directly asked to address privileged matters in public the privilege needs to be waiver by a majority vote. Remember it is the client, acting through its board or council, which owns and can waive the privilege.

VII. ELECTRONIC COMMUNICATIONS AND OTHER TECHNOLOGY

A. Basic Premise.

1. While information may exist in an electronic form, it is not different in character. Electronic information should not, in theory, be treated any differently from a legal point of view. An electronic communication is still a communication. See Anti-Monopoly v. Hasbro, 1995 WL 649934 (S.D.N.Y 1995), not reported in Fed. Supp., citing Sanders v. Levey, 558 F.2d 636 (2d Cir. 1976). This is the probable application in state law as well.

2. For example, an e-mail message to an attorney may be as privileged as the contents of a phone call, or a letter, or a verbal communication, it simply comes in a different form. The key is to avoid being misled by the manner of the communication and focus on the content of the communication.

3. Consequently, it is reasonable to assume that public agency e-mail will be generally discoverable under public disclosure laws.

Practice Consideration: The public officials using e-mail should be put on notice in the strongest possible terms that they are creating official records subject to disclosure in almost all instances. This form of communication is not for casual discussion or joking, which could come back to haunt the agency. The public agency attorney should encourage the development of official e-mail policies. Attorney communications on e-mail, if privileged, should be so labeled.

B. Future Problems.

1. Retention Policies. There are three possible approaches:

a. Treat the records in the same manner as if they were paper records. Retain those which, if paper, would be retained and discard those which, if paper, would be discarded.

b. Discard all e-mail on grounds it is like transitory communication like telephone conversations. (Apparently NASA has decided on this approach.) This seems questionable legally.

c. Save all e-mail. Probably doomed as a policy as impractical. E-mail files become massive once people begin to use it.

d. Some content analysis will probably be necessary and certain e-mail retained under the policy of a. above. I doubt that the other options are practical. There has been some discussion about the form of e-mail storage. Should retained e-mail be printed and stored on paper or is it sufficient to archive a disk? In theory the disk should be sufficient, but as the technology changes there may be difficulties in retrieving older material.

2. Effect of Other Electronic Capabilities. Other electronic capabilities will affect the public agency in various ways. For example, there is no reason why a City Council meeting could not occur in "public" through an electronic medium, such as a conference call, with all, or some of the members present electronically, provided that there was also some provision for the electronic presence of the public.

Question: Could a City Council meeting be held on the internet? There is no insurmountable reason why this could not be so, as long as provision was made for the attendance of the public at some point where they could interact with the meeting in progress.

Chapter 3 Attorney Disqualification

I. CONFLICTS

A. Identification of Client. The first question that must be asked when determining whether or not a government attorney should be disqualified due to conflict of interest is, "Who is the client?

B. General Rule - RPC 1.7: Conflict of Interest. A lawyer cannot represent a client if that representation will be directly adverse to another client unless the conflict is limited and the client consents in writing. See RPC 1.7(a)(1) and (2). In addition, a lawyer shall not represent a client if that representation may be materially limited by the lawyer's other responsibilities or own interests unless the client consents in writing. See RPC 1.7(b)(1) and (2). In addition, when a lawyer who is not a public officer or employee represents a discrete governmental agency or unit that is part of a broader governmental entity, the lawyer's client is the particular unit represented, not broader governmental entity of which the agency is a part, unless there is a written agreement otherwise or the broader governmental entity gives the lawyer timely notice to the contrary. See RPC 1.7(c)(1) and (2), and their respective subparts. See infra Chapter 6, Section IV.A. for discussion of criminal issues.

1. General Considerations - Identifying Whether a Conflict Exists. A government lawyer must continually examine:

a. The lawyer's personal interests;

b. The interests of external constituencies, such as former or current private practice clients and law firm members; and

c. The interests of other governmental employees and officials. Charles W. Wolfram, Modern Legal Ethics, 450 (West Publishing Co. 1986).

2. Government Lawyer's Role.

a. Policy Maker. If the lawyer's role is more "policy making" oriented, conflicts with individuals are considered policy differences and are not a matter for regulation. Wolfram at 450. See Government Lawyers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 191-192 (1989).

b. Litigator. If a lawyer's role is as a litigator, the conflict's issue is treated like that of a counselor in private practice, and confidentiality and the client's interests have more relevance in this situation. Wolfram at 450.

3. Conflicts of Interest and Lawyer Partiality.

a. Washington Case Law. Prior to 1992, no Washington case addressed the issue of whether prosecuting one's relatives is a per se conflict of interest requiring disqualification. The Washington Rules of Professional Conduct do not speak directly to the issue. State v. Ladenburg, 67 Wn. App. 749, 751, 840 P.2d 228 (1992).

b. Nature of Lawyer's Interest. The lawyer's personal interest may be financial, emotional, or political. Wolfram at 453.

i. The remote possibility of inappropriate motives is not itself disabling. Wolfram at 453. And, an attorney's good faith is not material to disqualification based upon privileged information. State v. Stenger, 111 Wn.2d 516, 523, 760 P.2d 357 (1988).

ii. A prosecutor cannot represent a public body if the prosecutor's personal interests or beliefs will materially limit the representation. Westerman v. Cary, 125 Wn.2d 277, 300, 885 P.2d 827 (1994).

iii. Chapter 42.23 RCW is the code of ethics for municipal officers. RCW 42.23.030 prohibits any municipal officer from benefiting, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, or for the benefit of her office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein. See Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996). See also infra Chapter 4, Section I.F.

RCW 42.23.070 prohibits any municipal officer from: (A) using his or her position to secure special privileges or exemptions for anyone; (B) giving or receiving or agreeing to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services; (C) accepting employment or engaging in business or professional activity that the officer might reasonably expect would require or induce him or her to disclose confidential information acquired by reason of his or her official position; and (D) disclosing confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit. See infra Chapter 4, Section F.4.

Chapter 42.22 RCW contains the statutory duties for officers and employees of state agencies and legislative employees including lawyers.

iv. An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer's exercise of public responsibility. See Wolfram at 453.

v. Political interest can also create serious conflicts of interest on the part of a prosecutor. But the remote possibility of inappropriate motives, alone, is not enough for disqualification. See Wolfram at 453.

4. Conflicts of Interest and the Appearance of Fairness Doctrine.

a. General Rule. The appearance of fairness doctrine states that a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing. State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992). While a conflict of interest as defined in the RPC may not be present, a violation of this doctrine can incur harsh results.

b. Not Applicable on Commencement of Proceeding. Note that this doctrine does not apply once the adversary proceeding has commenced; however, it may apply when the prosecutor is acting in a quasijudicial capacity (i.e., determining what charges to bring, plea bargaining). Id. See generally State v. Tolias, 84 Wn. App. 696, 929 P.2d 1178 (1997). In this case the district attorney violated the appearance of fairness doctrine by first trying to mediate between two adverse parties and subsequently prosecuting one of the parties on the matter originally at issue.

c. Not Applicable to Legislative Actions. The appearance of fairness doctrine does not apply to legislative actions. Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996); Zehring v. City of Bellevue, 99 Wn.2d 488, 494, 663 P.2d 823 (1983).

d. Effect of Violation. An appearance of fairness violation may void an entire decision by an entity.

5. Dual Public Service - Actual Conflict is Required.

a. No Implied Conflict in Dual Representation. When an attorney acts as a prosecuting attorney as well as an attorney for the P.U.D. (or a similar organization) there is not an implied conflict of interest. See WSBA Formal Ethics Opinions, Opin. No. 59 (1959) (Prosecuting Attorney as Attorney for P.U.D.). In this case, the ethics committee determined that both jobs required the attorney to represent the public interest and therefore, there was no conflict. However, the committee did comment that in the event of an actual controversy (legal or factual) between the two public bodies, the attorney would have a duty to withdraw from one representation.

i. Compare Westerman v. Cary, 125 Wn.2d 277, 300-301, 885 P.2d 827 (1994). This case states that a conflict of interest arises when a prosecutor represents two different public bodies with directly adversarial positions in the same case. The court found that there was a conflict of interest in dual public service. In this case, the prosecutor represented two different public bodies that took directly adversarial positions in the same case. The court said that, in this circumstance, the prosecutor should withdraw from one representation and have a special prosecutor appointed.

b. Likelihood of Actual Conflict is Relevant Inquiry. It does not follow necessarily that a lawyer employed by the government subdivision is precluded from other employment simply because a conflict of interest could possibly arise. See WSBA Formal Ethics Opinions, Opin. No. 149 (1971) (Lawyer Serving as Prosecuting Attorney and City Councilman Simultaneously). In this opinion, the ethics committee concluded that dual public service is not a per se ethics violation because conflicts arising between the positions of prosecuting attorney and city councilman are not sufficiently likely to arise as to warrant a mandatory ethics violation. Rather, the relevant inquiry is, "what is the likelihood that a conflict of interest will arise or would appear so in the eyes of the public?"

c. Conflict May Arise Where Lawyer Handles Civil Enforcement and Prosecution in Related Laws. A conflict of interest may arise where a government attorney has the responsibility of enforcing civil remedies and prosecuting persons for violating the penal version of the related law. For example, a conflict may arise where the lawyer uses special investigative techniques that can be used in the civil area but may not be used solely for the purposes of preparing a criminal case. In this situation, the attorney is required to act in "good faith" and not abuse her power. Wolfram at 452.

C. Conflict of Interest; Prohibited Transactions; Current Client.

1. See supra Westerman, 125 Wn.2d at 300, and WSBA Formal Ethics Opinions, Opin. Nos. 59 and 149.

2. See Chapter 42.23 RCW et seq., Chapter 42.22 RCW et seq., and infra Chapter 4, Section VI.

D. RPC 1.9 Conflict of Interest; Former Client.

1. General Rule. A lawyer who has formerly represented a client in a matter shall not thereafter:

a. Represent another person in the same or substantially related matter in which that person's interests are materially adverse to the former client's interests unless the former client consents; or

b. Use confidences or secrets relating to the representation to the disadvantage of the former client.

See infra Section VI.C.2 on part-time government practice; WSBA Formal Ethics Opinions, Opin. No. 161 (1975) (Government Attorneys in Private Practice); and Wolfram at 454.

2. Same or Substantially-Related Matters.

a. Prior Representation - Unrelated Criminal Charges. See State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988). In this case, the prosecutor was disqualified from trying a death penalty murder case because the prosecutor had previously represented the defendant on unrelated criminal charges. The court concluded that the prosecutor's knowledge of confidential information regarding the defendant's past criminal conduct prohibited the prosecutor from making an impartial decision. In other words, the confidential information was closely interwoven with the prosecutor's exercise of discretion in seeking the death penalty. The court utilized the factual context analysis.

b. Prior Representation - Related to Official Duties Only. Compare State v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990), review denied 114 Wn.2d 1027, 793 P.2d 974. Here, a county prosecutor who had previously represented a county officer in actions relating to the officer's official duties, but not the officer's personal affairs, did not have a conflict of interest when prosecuting the officer. Id. at 201.

c. Similar or Related Factual Contexts. See State v. Hunsacker, 74 Wn. App. 38, 873 P.2d 540 (1994). This case interprets what is meant by substantially related matters. It says two matters are substantially related if the factual contexts of the prior and present representations are similar or related. The question should be, "is any fact in the prior representation so similar to any fact that is projected to be involved in the present representation that an attorney would consider it useful in advancing the interests of the client in the present representation?"

3. Disqualification Under RPC 1.9.

a. Prior Representation or Professional Consultation on Closely Related Matters. A conflict of interest sufficient to disqualify a prosecuting attorney under RPC 1.9 does not exist unless the accused previously consulted professionally, or was personally represented by, the prosecutor with respect to the crime charged or a closely related matter. Stenger, 111 Wn.2d at 520; Greco, 57 Wn. App. at 201.

b. Side-Switching. A lawyer is disqualified from filing suit against an agency which the lawyer had previously counseled on the issue of legality but later changed her mind as to the legality. The court found that it was likely that government officers who were formerly represented by the lawyer disclosed confidential information to her. Wolfram at 454.

c. Additional Cases. See also infra Chapter 6, Section VI.C.3. for additional cases in criminal context.

E. RPC 1.10 Imputed Disqualification; General Rule. While lawyers are associated with a firm, they cannot knowingly represent a client when another lawyer in that firm would be prohibited from representing that client. In addition, the firm cannot represent a client that a lawyer had previously represented on a similar matter in another firm. Note that the client can waive the disqualification under the conditions stated in Rule 1.7.

1. Prosecuting Attorney's Office. When a prosecuting attorney of a county is disqualified from acting in a criminal case based on his representation of the defendant in the same case or in a matter so closely interwoven with the same case as to be in effect a part of that case, the entire attorney staff directed by the prosecuting attorney will ordinarily be disqualified from prosecuting the case, and a special deputy attorney should be appointed. Stenger, 111 Wn.2d at 522. There is a possibility that the attorney with the conflict may be screened (barred from participating in the prosecution) so as not to disqualify the entire prosecuting attorney's office. Id. at 522-23.

2. Attorney General's Office. A conflict of interest arising from multiple representation by the Attorney General's Office in the performance of its legal duties can be obviated if effective screening mechanisms are in place, such as assigning different Assistant Attorneys General to each inconsistent function, keeping separate files, and preventing the attorneys from talking to each other about the matter. Sherman v. State, 128 Wn.2d 164, 187, 905 P.2d 355 (1995). See also Hoquiam v. Employment Relations Comm'n, 29 Wn. App. 319, 329, 628 P.2d 1314 (1981).

F. RPC 1.11 Successive Government and Private Employment.

1. Disqualification of Former Government Attorney. A private attorney shall not represent a private client in connection with a matter in which the lawyer participated personally or substantially as a public officer or employee, unless the appropriate government agency consents after consultation. The firm is also disqualified unless the disqualified attorney is screened, and written notice is given to the appropriate government agency. See Stephen Curran, Government Lawyers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 196-98 (1989); Wolfram at 454-56.

2. Disqualification if Private Lawyer has Confidential Information from Prior Government Employee. A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. The firm is also disqualified unless screening has been done.

3. Disqualification of Former Private Attorney. A former private attorney now a public officer or employee shall not participate in a matter in which she participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law, no one is, or may be, authorized to act in the lawyer's stead. A public officer or employer shall not negotiate for a position with opposing counsel.

a. This rule applies whether the current matter is congruent or adverse to the former client's interest. Wolfram at 448-49.

b. Part-time government practice can also create conflicts. See Resolving Prosecutor Conflicts, 6 Georgetown Journal of Legal Ethics 415-495 (1993); Wolfram at 454-56.

4. See also infra Chapter 3, Section VI.

G. Standard of Review - De Novo.

1. Disqualification of Prosecutor. The Court of Appeals reviews de novo the trial court's decision not to disqualify a prosecutor under RPC 1.9 (Conflicts of Interest - Former Client). State v. Greco, 57 Wn. App. at 200; State v. Stenger, 111 Wn.2d at 521-22.

2. Violation of RPC's. Whether an attorney's representation of a client violates the RPC's is a question of law reviewed de novo. State v. Hunsacker, 74 Wn. App. 38, 42, 873 P.2d 540 (1994).

3. Motives of Attorney Irrelevant. The attorney's motives are irrelevant when determining whether or not there is a conflict of interest requiring disqualification. Stenger, 111 Wn.2d at 523.

II. INTERNAL INVESTIGATIONS

A. Basic Considerations. Conflict issues often arise when the attorney for the entity is involved in the early stages of investigations of employee matters such as sexual harassment, employee misconduct or ADA compliance. Some basic considerations include:

1. Identification of Client. Potential for dispute or confusion as to who the attorney's client is in the course of an investigation.

2. Disqualification as Necessary Witness. Potential to be disqualified as advocate if attorney/investigator is deemed to be necessary witness in later administrative or judicial proceedings.

3. Discovery of Investigation Materials. Protection from discovery under attorney/client privilege or work product of investigative materials prepared by and for the attorney in the course of an investigation. See CR 26 and RCW 5.60.060(2).

4. Due Process or Appearance of Fairness Challenges. Potential due process or appearance of fairness challenges to result of administrative proceeding when attorney plays dual role as investigator and legal advisor in quasi-judicial context.

B. Sources of Guidance.

1. Some Relevant RPC's.

a. RPC 1.8 Conflict of Interest - current clients

b. RPC 1.9 Conflict of Interest - former clients

c. RPC 1.10 Imputed Disqualification

d. RPC 3.7 Lawyer as Witness

2. Some Relevant Ethics Opinions.

a. Formal Opinions.

i. Prosecutor/Investigator. Prosecutor who investigates an accident case for purpose of determining whether to file charges may not represent any party in proceeding growing out of such accident. WSBA Formal Ethics Opinions, Opin. No. 74 (1960); See Problem 5.

ii. Prosecutor/Plaintiff Counsel. City attorney who has tried or prosecuted a defendant in traffic case (and presumably reviewed investigative materials in doing so) may not later represent a plaintiff in a claim or civil action against the same defendant involving the same traffic event. WSBA Formal Ethics Opinions, Opin. No. 132 (1965).

iii. City Attorney/Non-City Case. City Attorney or partners or associates may represent juveniles or defendants in actions not brought or initiated by the City and the facts of which are not investigated by the City employing the City Attorney. WSBA Formal Ethics Opinion, Opin. No. 161 (1975).

b. Informal Opinions. WSBA Published Informal Opinion 88-2, Advice by Prosecuting Attorneys to Prospective Witnesses (Prosecutor may not ethically advise witness not to be interviewed by defense or not to be interviewed without prosecutor present). Consider how this might arise in the context of internal investigation in which witnesses are asked not to discuss further the matter under investigation.

3. Relevant Statutes and Court Rules.

a. RCW 5.60.060(2) (Attorney/Client privilege).

b. RCW 42.17.310(1)(j) (incorporates into the Public Disclosure Act both attorney/client privilege and work/product exemptions from discovery). See Chapter 2, Section IV supra.

c. CR 26 - Discovery - Privilege and Work Product.

4. Relevant Cases.

a. Legal Memorandum as Work Product. Memorandum prepared by county legal counsel regarding sufficiency of EIS was protected from public disclosure and pretrial discovery as attorney work product rule (CR 26(b)) and the attorney-client privilege (RCW 5.60.060(2) and RCW 42.17.310(1)(j)). Harris v. Pierce County, 84 Wn. App. 222, 928 P.2d 1111 (1996).

b. Ex Parte Contact with Opposing Party's Counsel. Court held that the ex parte contact of attorneys with expert witness of opposing party (i.e. fire expert who came to plaintiffs after suit filed and who believed he had identified the cause of fire) did constitute a violation of CR 26(b)(5), but sanction of attorney disqualification was not warranted by the facts of this case. In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996). (See dissent by J. Madsen for exposition on work product and CR 26.)

c. Multiple Representation. In a case involving the termination of a medical resident's residency at the University of Washington Medical School, different Assistant Attorneys General (AAG) represented and/or advised 1) the department chair regarding the termination; 2) the adjudicative committee which reviewed the termination, and 3) the chair of the committee regarding an "errant fax" which was inadvertently sent to a committee member. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995). Where Attorney General's office used the screening mechanisms discussed in Washington Medical Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983), and by the court of appeals in Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985), the entire Attorney General's office should not have been disqualified on account of such multiple representation/advice. Of significance in internal investigations, no attorney/client relationship was established between one AAG and the medical resident on account of the AAG having earlier, in an unrelated tort claim, asked the resident to provide the University with the resident's factual account of the incident from which the claim arose. Also, the acts of individual attorneys, as opposed to the administrative tribunal, do not trigger an appearance of fairness violation. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995).

d. Property Appraisal - Work Product. After the owner of property which was the subject of a planned land use regulation claimed that application of the regulation would deprive it of reasonable economic use of the property, the City Attorney commissioned an appraisal of the property. The owner/developer obtained its own appraisal of the property, but also sought disclosure of the appraisal done at the City Attorney's direction. The court held the City's appraisal was exempt from public disclosure as attorney work product under CR 26(b)(4) and RCW 41.17.310(j). It did not reach the question whether the appraisal was protected by attorney-client privilege. Overlake Fund v. Bellevue, 70 Wn. App. 789, 855 P.2d 706 (1993), rev. denied, 123 Wn.2d 1009 (1994).

III. THE ATTORNEY AS WITNESS

The Rules of Professional Conduct 3.7 provides as follows:

Lawyers shall not act as advocate at a trial in which the lawyer or another lawyer in the same law firm is likely to be a necessary witness except where:

a. The testimony relates to an issues that is either uncontested or a formality; or

b. The testimony relates to the nature and value of legal services rendered in the case; or

c. The lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate; or

d. The trial judge finds that disqualification of the lawyer would work a substantial hardship on the client and that the likelihood of the lawyer being a necessary witnesses was not reasonably foreseeable before a trial.

A. The Rationale for RPC 3.7.

1. Generally. RPC 3.7 is based upon the position that the role of the witness is incompatible with the role of an advocate. There have been a number of rationales advanced to support this position, not all of which are consistent. On one hand, an advocate may be more readily impeachable because of his or her interest in the outcome of the litigation. On the other hand, a lawyer may not be able to enhance his or her credibility or further the case by being a witness and an advocate. There is a possibility that a jury or judge may be confused as to whether the attorney is testifying from personal knowledge as a fact witness, or whether the attorney is drawing inferences from facts as an advocate.

2. Technical Reasons. There are also some technical reasons for the Rule. A lawyer may be placed in the position of having to take a position prejudicial to his/her client. Also, it may be difficult for lawyers to question themselves in the normal question/answer format. Furthermore, the lawyer as witness may place opposing counsel or the court in the awkward position of assessing the lawyer's credibility.

See generally, Barbara J. Moss, Ethical Prohibitions Against A Lawyer Serving As Both Advocate And Witness, 23 Memphis State U. Law Review, 555 (1993).

B. Application of the Rule.

1. Procedural Application.

a. Motion to Disqualify. Application of the lawyer as witness rule will occur in both disciplinary proceedings and in court, usually pursuant to a motion to disqualify a particular attorney. A review of the pertinent cases indicates that it is far more likely for the issue to arise during the course of a trial and that there are very few disciplinary procedures involving RPC 3.7. See, e.g., American Bar Association, Annotated Model Rules of Professional Conduct (3rd ed. 1996); cf. State ex. rel. Nebraska State Bar Ass'n v. Neumister, 449 N.W.2d 17 (Neb. 1989) (disciplining lawyer who failed to withdraw when he knew he would be a material witness.); Office of Disciplinary Counsel v. Collins, 643 N.E.2d 1082 (Ohio 1994) (reprimanding lawyer for taking case in which he knew he would be witness).

b. Timing. As a general rule, a party must move to disqualify an attorney in a timely manner. See PUD 1 v. International Insurance Company, 124 Wn.2d 799, 812, 881 P.2d 1020 (1994). A motion to disqualify presented just before trial may prejudice the non-moving party and may be perceived by the court as constituting "unseemly tactics." Id. However, at least in a disciplinary proceeding, the court will require an unequivocal waiver by the party that could object to the lawyer-witness, or the issue may be reviewed at a later date. See In Re Vetter, 104 Wn.2d 779, 711 P.2d 284 (1985) (court found that a party's decision not to challenge the lawyer-witness during a disciplinary hearing did not preclude the party from raising this issue in court).

2. Substantive Application of Rule.

a. Elements of Rule. In order for RPC 3.7 to apply, three elements must be met. First, a lawyer must act as an advocate at trial. Second, a lawyer or another lawyer in the same law firm must be a prospective witness. Third, the lawyer must be a necessary witness.

b. Compelling Circumstances. In applying this rule, however, "courts have been reluctant to disqualify an attorney absent compelling circumstances." PUD 1, 124 Wn.2d at 812 (citing Smithson v. United States Fid. & Guar. Co., 411 S.E.2d 850 (W.Va. 1991); see also Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296 (Ariz. 1981)).

c. Likely to Be a Necessary Witness.