BELMONT UNIVERSITY AMERICAN INN OF COURT SEPTEMBER 9, 2014 PRESENTED BY KRISANN HODGES DEPUTY CHIEF DISCIPLINARY COUNSEL - LITIGATION BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE Ethical Considerations for Public Practice Lawyers

 RPC 1.13 – ORGANIZATION AS CLIENT  RPC 1.11 – SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES  1.2, 1.7, 1.8, 1.9 – GENERAL CONFLICT RULES  1.1, 1.3, 1.4, 1.6, 3.2, 3.5, 3.7, 3.8, 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 5.4 – ALWAYS APPLY RULES OF PROFESSIONAL CONDUCT FOR PUBLIC LAWYERS

 MOST PROBLEMS CAN BE RESOLVED IF IDENTITY OF CLIENT AND SCOPE OF REPRESENTATION IS ESTABLISHED. IDENTITY OF CLIENT

DO YOU REPRESENT:  THE PUBLIC INTEREST?  THE “GOVERNMENT” AS A WHOLE?  A PARTICULAR BRANCH OF GOVERNMENT?  A PARTICULAR AGENCY OF GOVERNMENT?  A PARTICULAR AGENCY OR DEPARTMENT HEAD?  A LOWER LEVEL SUPERVISOR?  EVERY INDIVIDUAL IN THE AGENCY? IDENTITY OF CLIENT

ARE YOU A NEUTRAL ADVISOR WHO SHOULD SERVE A QUASI- JUDICIAL ROLE? ARE YOU A PARTISAN ADVOCATE FOR THE AGENCY? WHAT IS THE SCOPE OF YOUR DUTY?

 GENERALLY, A LAWYER EMPLOYED OR RETAINED BY AN ORGANIZATION REPRESENTS THE ORGANIZATION ACTING THROUGH ITS DULY AUTHORIZED CONSTITUENTS.  IN DEALING WITH AN ORGANIZATION'S DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, SHAREHOLDERS OR OTHER CONSTITUENTS, A LAWYER SHALL EXPLAIN THE IDENTITY OF THE CLIENT WHEN THE LAWYER KNOWS OR REASONABLY SHOULD KNOW THAT THE ORGANIZATION'S INTERESTS ARE ADVERSE TO THOSE OF THE CONSTITUENTS WITH WHOM THE LAWYER IS DEALING. Rule of Professional Conduct conflicts

WHEN CONSTITUENTS OF THE ORGANIZATION MAKE DECISIONS FOR IT (REGARDING POLICY AND OPERATIONS), THE DECISIONS ORDINARILY MUST BE ACCEPTED BY THE LAWYER EVEN IF THEIR UTILITY OR PRUDENCE IS DOUBTFUL. Rule of Professional Conduct conflicts

However, when the lawyer knows that the organization is likely to be substantially injured by action of an officer by violating a legal obligation, the lawyer must proceed as is reasonably necessary in the best interest of the organization. As defined in Rule 1.0(f), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious

ADDRESSES CONFLICTS FOR ATTORNEYS MOVING BETWEEN PRIVATE AND GOVERNMENT PRACTICE INTENDED TO WORK WITH OTHER RPCS: 1.7 – CONFLICT OF INTEREST: CURRENT CLIENTS 1.9 – DUTIES TO FORMER CLIENTS 1.12 – FORMER JUDGE OR ARBITRATOR Rule of Professional Conduct 1.11 – Special Conflicts of Interest for Former and Current Government Officers and Employees

1.11 – Special Conflicts for Gov’t Attys A lawyer who has formerly served as a public officer or employee of the government is (1) subject to RPC 1.9(c) and (2) shall not represent a client in a matter in which the lawyer participated substantially and personally as a public officer or employee, unless the agency gives its informed consent, confirmed in writing, to the representation.

1.11 – Special Conflicts for Gov’t Attys 1.9(c) states that you cannot reveal information relating to the representation or use such information to the disadvantage of your former client unless you have consent and it is generally known.

1.11 – Special Conflicts for Gov’t Attys If you are disqualified because of your prior representation of the agency, so is your law firm unless you implement screening procedures outlined in the rule.

1.11 – Special Conflicts for Gov’t Attys If you obtained confidential government information about a person when you worked for the agency, you cannot represent a private client whose interests are adverse to the person when the information could be used to material disadvantage to that person. “Confidential information” means info that the agency is prohibited from revealing and which is otherwise not available to the public.

1.11 – Special Conflicts for Gov’t Attys If you used to be in private practice and you are now a government attorney, you are subject to RPCs 1.7 and 1.9, AND: You shall not participate in a matter in which you participated personally and substantially while in private practice unless the agency gives consent.

COMMENT [1] – A PROSECUTOR HAS THE RESPONSIBILITY OF A MINISTER OF JUSTICE WHOSE DUTY IS TO SEEK JUSTICE RATHER THAN MERELY TO ADVOCATE FOR THE STATE’S VICTORY AT ANY COST. SEE STATE V. SUPERIOR OIL, 875 S.W. 2D 658 (TENN. 1984) Rule of Professional Conduct 3.8 – Special Responsibilities of a Prosecutor

3.8 – Special Responsibilities of a Prosecutor Prosecutor must refrain from prosecuting a charge that she knows is not supported by probable cause; Shall make reasonable efforts to assure the accused has been advised of the right to counsel; Shall not advise an unrepresented counsel to waive important pre-trial rights; Shall make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigates the offense;

3.8 – Special Responsibilities of a Prosecutor Except when necessary to inform public of nature and extent of prosecutor’s action and serve a legitimate law enforcement purpose, must refrain form extrajudicial comments that have substantial likelihood of heightening public condemnation of the accused.

3.8 – Special Responsibilities of a Prosecutor When prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convincted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall disclose information if outside his jurisdiction and, if in his jurisdiction, shall undertake an investigation. If the evidence is clear and convincing, the prosecutor must seek to remedy the conviction.

LAWYER SHALL NOT STATE OR IMPLY THAT THE LAWYER IS DISINTERESTED SHALL NOT GIVE LEGAL ADVICE TO AN UNREPRESENTED PERSON, OTHER THAN ADVICE TO SECURE COUNSEL, IF THE LAWYER KNOWS OR REASONABLY SHOULD KNOW THAT THE INTERESTS OF SUCH A PERSON MIGHT REASONABLY BE IN CONFLICT WITH THE INTERESTS OF THE CLIENT. Rule of Professional Conduct 4.3 – Dealing with an Unrepresented Person

A LAWYER HAVING DIRECT SUPERVISORY AUTHORITY OVER A NONLAWYER SHALL MAKE REASONABLE EFFORTS TO ENSURE THE NONLAWYER’S CONDUCT IS COMPATIBLE WITH THE PROFESSIONAL OBLIGATIONS OF THE LAWYER. Rule of Professional Conduct 5.3 – Responsibilities Regarding Nonlawyer Assistants