The Ethical Government Civil Attorney

Knowing Who the Client Is

The ethical duties of the government civil attorney are predicated upon a clear understanding of who the client is. The duties articulated in RPC 1.13, regarding the representation of an organization acting through its duly authorized constituents, apply to the representation of a government entity.[25] The attorney therefore represents the government entity acting through the government officials that are the entity’s duly authorized constituents; the immediate attorney-client relationship exists between the attorney and the government officials acting in their official capacities on behalf of the government entity. However, in Nevada this representation carries a special responsibility under RPC 1.13(f):

In dealing with an organization’s . . . constituents, a lawyer shall explain the identity of the client to the constituent and reasonably attempt to ensure that the constituent realizes that the lawyer’s client is the organization rather than the constituent.

Therefore, in Nevada the attorney has an affirmative duty to communicate to each government official with whom he or she has an immediate attorney-client relationship that the client is the government entity, not the official. Only by clearly establishing the boundaries of the attorney-client relationship and communicating that information can the attorney provide effective representation.

Government officials have a fiduciary duty to act in the public’s best interest, and the attorney-client relationship between the government official and the attorney is tempered by this broader duty to the public.[26] The government civil attorney is held to a higher standard as a result, and has a corresponding duty to act in the best interests of citizens in the course of representing the government client. The attorney fulfills that duty primarily by providing timely and competent legal advice and representation to government officials and by the enforcement of Nevada law, which can limit the government entity’s liability and protect taxpayer money.

Confidentiality of Information

Because transparency and accountability in government are essential to a free society, the government civil attorney must carefully balance the public’s right to access with any legal or ethical constraints on his or her ability to disclose information or otherwise engage in public discourse. RPC 1.6 generally restricts the disclosure of information related to the representation of a client; however, subsection (b)(6) permits disclosure if required by another law. Nevada’s public records law (NRS Chapter 239) and open meeting law (NRS Chapter 241) clearly fall within the scope of RPC 1.6(b)(6), but these are limited in turn by certain statutory exceptions, such as those for privileged attorney-client communications and attorney work-product.[27]

RPC 1.6(b) works in tandem with RPC 1.13(b), regarding the referral to a higher authority of violations of law by someone acting on behalf of an organization. The comments to ABA Model Rule 1.13 reflect a different standard for the government civil attorney in determining how to proceed under the Rule, attributable to the attorney’s duty to act in the best interests of citizens in the course of representation:

   In a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. Thus, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business is involved.[28]