Ethics Issues in Representing Intergovernmental Entities

Abstract

The creation and operation of intergovernmental entities raise special professional responsibility issues for the lawyers involved in the formation and the long-term activities of multi-governmental bodies. It is particularly important for attorneys to pay attention to conflicts of interest that arise from giving simultaneous assistance to several governments, or from representing one entity in negotiations with other governments the attorney or firm represents. This paper briefly reviews various categories of interlocal entities in Washington State, as an example. It points out the distinctly different dynamics during the formation period and the operations period of an intergovernmental body. It then analyzes lawyer ethics problems during formation, and later operation, of an interlocal entity, suggesting ways to minimize violations of the Rules of Professional Conduct. The paper recommends, among other things, that when a lawyer is asked to assist a group of governments conceptualize and document the formation of a new interlocal body, that lawyer must determine whether she will seek to represent all of the governments in that process (obtaining consents under RPC 1.7), or to serve as a third-party neutral under RPC 2.4 (representing no client, but providing a clear explanation of that role). The choice has implications in terms of other concurrent and subsequent representations of parties. Consent letters in either situation should provide warnings about confidential information. When an intergovernmental body enters the operations phase, a lawyer selected to represent that body must analyze the potential conflicts of interest and procure consents — often numerous consents — from various parties. The paper includes sample consent letters.