Arizona City Attorneys Association Conference, May 19, 2016 Update on Ethics Rules for Government Lawyers Geoffrey Sturr Osborn Maledon, P.A.

2016 Changes ❖ Comments added to ERs 1.13 and 3.5 to provide additional guidance to government lawyers on: ❖ Identifying the client for conflict purposes; ❖ and ❖ Advising governmental entities acting in a quasi- judicial capacity and restricting ex parte contact. ❖ New screening provisions added to ER 1.11(a)

2016 Changes ❖ Proposals made in January 2015 by Supreme Court Committee chaired by Justice Timmer ❖ Adopted, in part, by Supreme Court in August 2015 ❖ Effective January 1, 2016

Reason for New Comments ❖ Comments in the Arizona Rules of Professional Conduct “hint[] at ‘special considerations’ that ‘may’ affect the application of the Rules to government lawyers,” and could be revised to provide additional guidance.

Pre-Amendment ER 1.13 Comment [9] ❖ Noted difficulties in “[d]efining precisely the identity of the client and prescribing the resulting obligations of lawyers.” ❖ “Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole.”

Pre-Amendment ER 1.13 Comment [9] ❖ “For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule.” ❖ “[D]uties of lawyers employed by the government... may be defined by statutes and regulation. This Rule does not limit that authority.”

New Comment [10] to ER 1.13 ❖ “A government lawyer may have an obligation to render advice to a government entity and constituents of a government entity. Normally, the government entity, rather than an individual constituent, is the client.”

New Comment [10] to ER 1.13 ❖ “Some government lawyers may also be elected officials or the employees of elected officials who have statutory obligations to take formal action against individual constituents under certain circumstances.” ❖ “The government lawyer, therefore, must clearly identify the client and disclose to the individual constituents any limitations that are imposed on the lawyer's other legal obligations.”

New Comment [10] to ER 1.13 ❖ “Further, where a conflict arises between a constituent and the government entity the lawyer represents or between constituents of the same government entity, the lawyer must make the identity of the client clear to the constituents and determine which constituent has authority to act for the government entity in each instance.”

Other Sources of Guidance on Client Identification, Conflicts ❖ Restatement (Third) of Law Governing Lawyers § 97 cmt (c) ❖ ABA Formal Op ❖ N.Y. City Ethics Op ❖ Cal. Ethics Op ❖ Conn. Ethics. Op ❖ Mass. Ethics Op ❖ R.I. Ethics Op

New Comment [6] to ER 3.5 ❖ “At times, a government entity is required to act in a ‘quasi- judicial’ capacity as part of an administrative process. In that capacity, it may act as the decision-maker in contested proceedings or hear appeals from the determinations of another officer, body or agency of the same government.” ❖ “A government lawyer may be called upon to advise the tribunal after another lawyer in the same office has advised the other government constituent about the matter, or while another attorney from the same office appears before the tribunal.”

New Comment [6] to ER 3.5 ❖ “Advice given by the lawyer to the tribunal does not constitute impermissible ex parte contact, provided that reasonable measures are taken to ensure the fairness of the administrative process, such as using different attorneys to advise and represent the two constituents and screening those lawyers from one another or strictly limiting the lawyer's advice to the tribunal to procedural matters.” ❖ “In no event can the same lawyer both provide advice to the tribunal and appear before it in the same matter, even if the advice is limited to procedural advice.”

Enhanced Screening ❖ New provisions in ER 1.11(a) ❖ Written notice of screen must “includ[e] a description of the particular screening procedures adopted; when they were adopted; a statement by the personally disqualified lawyer and the new firm that the agency's material confidential information has not been disclosed or used in violation of the Rules; and an agreement by the new firm to respond promptly to any written inquiries or objections by the agency about the screening procedure” ❖ “[P]ersonally disqualified lawyer and the new firm [must] reasonably believe that the steps taken to accomplish the screening of material confidential information will be effective in preventing such information from being disclosed to the new firm and its client.”