Jessica Intermill Founding Member, Hogen Adams PLLC On Conflicts, Self-Regulation, and Creative Clients: Ethical issues in tribal representation October 27, 2017 Jessica Intermill Founding Member, Hogen Adams PLLC

Jessica Intermill Sharon Avery Peter Ortego Saginaw Chippewa Indian Tribe of Michigan Peter Ortego Ute Mountain Ute Tribes Jessica Intermill Hogen Adams PLLC Need for a law can come from Council Member, tribal member, commercial partner, etc. Need to decide where to start Prioritize effective, efficient Decide the best way to move from “do you think we can?” to enacted code

Conversation Topics Identifying and responding to conflicts of interest Professional reporting obligations When clients go rogue

Conflicts of Interest

Minn. & Mich. Rules 1.7 Don’t represent a client if that representation is: Directly adverse to another client; Materially limited by responsibilities to another client, a third party, or personal interest Unless….

Minn. & Mich. Rule 1.7 Differences Material limitation MI prohibited if “may” exist MN prohibited if “significant risk” of existence MN also calls out duties to former clients In MN, directly adverse claim is non- waivable conflict by rule

Minn. & Mich. Rules 2.1 Lawyer must exercise independent professional judgment and render candid advice. May root advice in law and “moral, economic, social, and political factors that may be relevant to the client’s situation.”

Minn. & Mich. Rule 1.7 Comment Cmt. 11: Where lawyers are “closely related by blood or marriage” to clients or their opponents, “there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment.”

Minn. & Mich. Rules 1.7 Don’t represent a client if that representation is: Directly adverse to another client; Materially limited by responsibilities to another client, a third party, or personal interest

Reporting Obligations

Minn. & Mich. Rule Preambles Self-governing profession Self-regulation “helps maintain the legal profession’s independence from government domination.”

Minn. & Mich. Rule Preambles “To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated.” “A lawyer should also aid in securing their observance by other lawyers.”

Minn. & Mich. Rules 8.3(a) If you know that another lawyer has committed a rule violation And that violation “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” Then you “shall” report

Minn. & Mich. Rules 5.1(c)(2) You are responsible for another lawyer’s violation if: You are a department manager or have direct supervisory authority; and You knows about the conduct when its consequences can be avoided or mitigated but don’t take reasonable remedial action.

Rogue Clients

Minn. & Mich. Rules 1.2(c) Don’t “counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent” But you can discuss the legal consequences of any proposed course of conduct with a client and push the bounds of existing law

Minn. & Mich. Rule 1.2 Comments There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which an illegal act or fraud might be committed with impunity.

Minn. & Mich. Rule ??? No rule specifically addresses what to do when client doesn’t follow advice – especially outside of court

Minn. & Mich. Rules 3.1 Don’t “bring or defend a proceeding, or assert or controvert an issue therein” without a good faith basis or good faith argument for an extension, modification, or reversal of existing law.

Minn. & Mich. Rules 3.3 Don’t: (1) make (or fail to correct) a false statement of material fact or law to a tribunal; (2) fail to disclose to a tribunal controlling legal authority; or (3) offer(or fail to withdraw) evidence that the lawyer knows to be false.

Founding Member, Hogen Adams PLLC On Conflicts, Self-Regulation, and Creative Clients: Ethical issues in tribal representation October 27, 2017 Jessica Intermill Founding Member, Hogen Adams PLLC jintermill@hogenadams.com 651-842-9100