Question:  Lawyer works as a city attorney.  Lawyer generally works with the Mayor, but also with the City Board and its Members.  One of the Board Members is asking Lawyer to take action contrary to the action directed by the Mayor and the Board as a whole.  Lawyer asks to whom Lawyer owes a duty to follow instructions and is confused as to whom Lawyer has a lawyer-client relationship — the City, Mayor, City Board, and/or its Members. 

Answer:  Whether a client-lawyer relationship exists is a question of fact and law beyond the scope of the Rules of Professional Conduct.  Scope [17].  This office is unable to provide an Informal Opinion as to who is the client of Lawyer, but the Rules of Professional Conduct do provide steps for Lawyer to follow to make that determination.  First, Rule 4-1.13(a) provides that when Lawyer is employed or retained by an organizational client, which would include a governmental entity, Lawyer represents that organization by and through its duly authorized constituents.  See Rule 4-1.13, Comments [1] and [6].   In this case, Lawyer represents the City.  However, Lawyer is confused as to who is the duly authorized constituent Lawyer must follow for instructions regarding the representation, or if there is more than one duly authorized constituent.  Per Comment [6] to Rule 4-1.13, guidance is provided as follows:

The duty defined in this Rule 4-1.13 applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules.  See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. … This Rule 4-1.13 does not limit that authority. See Scope.

Additionally, Scope [18] states in relevant part:

Under various legal provisions, including constitutional, statutory, and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships….

With this guidance in mind, Lawyer should review any substantive law defining the role of the city attorney, as well as who is the duly authorized constituent, knowing that it may be more than one person or entity, such as the Mayor or City Board. That substantive law may set the scope of representation for the Lawyer in accordance with Rule 4-1.2(a).  See Missouri Informal Opinion 2023-01.  While Lawyer may represent both the City as well as another party, such as a Board Member or employee, per Rule 4-1.13(e), such dual representation would be subject to Rule 4-1.7 and require the City’s informed consent, confirmed in writing, by an appropriate City official other than the individual who is to be represented.  See Missouri informal Opinion 2021-05.  Given the unique role of Lawyer in the role as a city attorney, it is critical that Lawyer be mindful of the obligations under Rule 4-1.13(d) to be clear to others that Lawyer represents City, not other employees, members, or constituents when Lawyer knows or reasonably should know that the City’s interests are adverse to those others with whom Lawyer is dealing.  If Lawyer has inadvertently formed a client-lawyer relationship with others such that a conflict of interest exists under Rules 4-1.11(d) and 4-1.7 that is not subject to waiver, Lawyer will be required to withdraw from the representation in accordance with Rule 4-1.16(a)(1).

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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