THE ETHICS OF TAKING OVER LITIGATION FROM OUTSIDE COUNSEL PAUL SPRUHAN NAVAJO NATION DEPARTMENT OF JUSTICE

ADVANTAGES TO IN-HOUSE LITIGATION Can be in more direct contact with clients to receive their views on litigation and positions to be taken (i.e. obligation to communicate) (ABA Rule 1.4) Can save significant amounts of money on hourly billing (ABA Rule 1.5) Can control overall strategy and message of tribe in multiple cases Can involve in-house lawyers in exciting, complex litigation with national impact, potentially improving recruitment and retention

DISADVANTAGES TO IN-HOUSE LITIGATION Technological capacities (e.g., electronic discovery capacity, storage, case law software, conference lines) Lack of Legal support staff (e.g. no paralegals, overworked secretaries; lack of army of associates, discovery departments) Lack of time to concentrate on litigation (Council meetings, emergency matters, requests to show up to meetings and functions) Competency in niche areas of litigation (e.g. trademark, intellectual property, environment; US Supreme Court boutique practice) (ABA Rule 1.1)

TIMING FACTOR Federal litigation takes a looooooooong time Example: Window Rock Unified School Dist. v. Nez Complaint by School District filed: 3/28/12 Federal District Court of Arizona decision: 3/19/13 Ninth Circuit appeal fully briefed: 2/03/14 Oral argument Held: 9/17/15 Decision Issued? WHO KNOWS?

Another Example Navajo Nation v. Urban Outfitters: Complaint filed: 2/28/2012 Multiple summary judgment motions on numerous issues pending Numerous discovery/expert witness motions pending One attempt at interlocutory appeal on sovereign immunity issue No end in sight……

NATURE OF FEDERAL LITIGATION Highly technical rules with may pitfalls Having to argue before judges not well-versed in Indian law and buried in other legal issues Generally more sophisticated litigation firms on other side with potentially larger litigation resources and different attitude about discovery battles, etc. Travel and expense to go to far away courts (e.g. San Francisco/Denver for appellate)