Informal Opinion Number: 20040059

QUESTION: The governmental entity is seeking to retain private attorneys on a contract basis for court proceedings. The attorneys would not be considered employees of the governmental entity. May attorneys hired on a contract basis represent other clients whose interests are adverse to any part of the governmental entity? May a governmental entity waive a conflict of interest?

ANSWER: The Supreme Court of Missouri has recognized the ability of state government to waive conflicts in State ex rel. Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 135-136 (Mo. banc 2001). In ABA Formal Op. 97-405, the American Bar Association clearly contemplates that governmental entities may waive conflicts.

This informal advisory opinion represents a departure from the previous position on waiver of conflicts of interest by governmental entities. It is now the position that governmental entities may waive conflicts. However, the issue of who has the authority to waive the conflict on behalf of the governmental entity is a legal question beyond the purview of an informal advisory opinion. An attorney who seeks a waiver from a governmental entity would be well advised to be certain that the person who purports to waive a conflict has the legal authority to do so.

This informal advisory opinion maintains the position that an attorney who represents any part of a government has a conflict that prevents representation adverse to any part of the same government, except that now waiver of the conflict is recognized as a possibility. By recognizing the ability of the government to waive conflicts, the government has the ability to determine at what levels government should be divided for conflict purposes and this determination can be tailored to the legal and factual issues involved in a given matter.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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