1. 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

2. 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

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

4. Conflicts of Interest

5. 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….

6. 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

7. 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.”

8. 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.”

9. 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

10. Reporting Obligations

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

12. 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.”

13. 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

14. 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.

15. Rogue Clients

16. 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

17. 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.

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

19. 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.

20. 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.

21. 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