Ethics Opinion

Opinion No. 86-2

February 1986

Summary: An attorney who defends both a police officer and a town in an action brought under 42 U.S.C. S1983 may become involved in representing differing interests within the meaning of DR 5-105(A) and DR 5-105(B). Accordingly, the attorney may appear on behalf of both the officer and the town only if it is obvious that he can adequately represent the interests of both, and only if he obtains the consent of each after full disclosure of the risks of such joint representation. As a practical matter, when there is substantial possibility that the town may wish to defend on the grounds that the officer was not acting within the scope of his official duties, the attorney cannot adequately represent both the town and the officer, and such joint representation is prohibited by DR 5-105(C). However, if there is a substantial identity of interests among all the defendants joint representation may be appropriate.

Facts: The committee has received two inquiries from town counsel concerning whether counsel can represent both a police officer and the town in actions brought to redress violations of a citizen's civil rights under 42 U.S.C. S1983.
In the first case, the Town Counsel of Town A inquires whether his office can represent Town A, the Chief of Police of Town A, and several of its police officers in an action alleging that the officers violated the civil rights of certain citizens by the use of excessive force in an incident that arose while one of the officers was on paid duty in a private restaurant. The citizens' complaint alleges, among other claims, violations of 42 U.S.C. S1983 and a conspiracy to cover up the incident in violation of 42 U.S.C. S1985. Town Counsel has informed the committee that Town A intends to assert "every legal defense."
In the second case, the Town Counsel of Town B makes a similar inquiry in connection with a S1983 action that arises from a shooting during a hostage taking. A police officer shot and killed a suspect who was holding a hostage at gunpoint. The suspect's survivors have brought suit against Town B, its mayor and police chief, and the officer who shot the suspect, claiming violations of federal and state civil rights statutes and seeking punitive damages. However, a judicial inquest conducted prior to the suit concluded that the officer was justified in using deadly force, and was not negligent. Town B has already filed an answer to the complaint stating that the officer's conduct was justified under the circumstances.
Discussion: In actions under 42 U.S.C. S1983, an attorney who represents both municipal and individual defendants may find that the interests of some defendants diverge so much from the interests of other defendants that the attorney cannot act as a zealous advocate for all. Under Monell v. The Department of Social Services, 436 U.S. 658 (1978), a town can avoid liability under S1983 by showing that its employees' actions were not undertaken pursuant to an official policy of the municipal body. On the other hand, a municipal employee may have a qualified immunity for acts performed in good faith in the course of his duties, while the town does not. Owen v. City of Independence, 445 U.S. 622 (1980). Thus, in some cases, a municipal employee will be able to avoid personal liability in a situation where the municipality will be liable because the policy being executed was unconstitutional.
Disciplinary Rule 5-105 addresses the attorney's responsibility in cases of multiple representation:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing different interests, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of this independent professional judgment of behalf of each.
(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment.
DR 5-105(C) states the prerequisites for representation of potentially differing interest conjunctively: Not only does such representation require full disclosure and consent, but also it must be "obvious," measured objectively, Opinion 85-1, that the attorney can adequately represent the interests of each of his clients.
Federal courts have recognized that, at least in some cases, joint representation of defendants in S1983 may violate ethical rules. In Shahid v. Jackson, F. Supp 87 (E.D. Tex. 1983), the court ordered separate representation of a police officer and the city that employed him because of the "unfairness inherent in the multiple representation of clients with potential adverse interests." Id. at 90. In Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), the Second Circuit ordered a new trial because the attorney who had jointly represented a police officer and his employer had sacrificed the interests of the officer by arguing to the jury that the officer was acting from personal motives, not in his capacity as a policeman. By contrast, in Sherrod v. Barry, 589 F. Supp. 433 (N.D. Ill. 1984), the court held that joint representation was appropriate when the city, in its answer, admitted that its employee was acting in the discharge of his official duties at the time the claim arose. See also Gordon v. Norman, 788 F.2d 1194 (6th Cir. 1986).
A recent thorough canvas of the problems in this area is contained in the opinion of the New Jersey Supreme Court in In re Petition for Review of Opinion 552 of the Advisory Committee on Professional Ethics, 102 N.J. 194, 507 A.2d 233 (1986). The court rejected an opinion of its ethics committee that had set forth a per se rule that it was "never proper for an attorney simultaneously to represent a governmental entity and any of its officials or employees when they are co-defendants in ... a civil rights action." The New Jersey court instead held that "the joint representation of clients with potentially differing interests is permissible provided that there is a substantial identity of interests between them in terms of defending the claims that have been brought against all defendants."
The committee agrees with that general conclusion of the New Jersey Supreme Court and with the general line of analysis set forth in its lengthy opinion. Although joint representation of a governmental entity and its employees in civil rights cases by governmental counsel presents very difficult problems for the attorney, there will be some cases where there will be no actual conflict and where the potential conflict is sufficiently minimal that the advantages of joint representation need not be foregone. Considerations of ease of access to counsel, cost of counsel, and freedom of choice to maintain an efficient common defense suggest that flexibility in light of the circumstances of particular cases instead of a per se rule ought to be our guide in these cases. With this background, we now turn to the facts of the particular inquiries.
Inquiry 1: The Town Counsel of Town A has made it clear that the town intends to raise every available defense. Under Monell, one defense that may absolve Town A of liability is that the officer was not acting within the scope of his official duties. Such a defense seems particularly apt when the incident that gave rise to the lawsuit occurred while one officer was on a paid duty in a private establishment. As long as Town A wishes to preserve this defense to the S1983 action, it is plainly not "obvious" that the town counsel can represent both the town and the officers involved. Thus joint representation is prohibited under DR 5-105(C). Since Town Counsel cannot represent the officers in these circumstances, DR 5-105(D) prohibits the other attorneys in his office from appearing on their behalf. We find support for our conclusion in our Opinion 80-2, where this committee reached a similar conclusion under the analogous provisions of the Massachusetts Torts Claims Act, G.L. c.258, SS2 and 9.
Inquiry 2: The inquiry from the Town Counsel of Town B presents a different case. The incident that gave rise to the lawsuit occurred while the officer was on duty at a time of danger to the public. The suspect shot was armed and had a hostage. An inquest has already concluded the officer was acting within the scope of his duties and that the shooting was justified. In these circumstances, Town B and the individual police officer may realistically expect to maintain a mutually supportive common defense.
General Laws c. 258. S9, however, presents a special problem in cases of joint representation. That section provides for indemnification of public employees for loss or expenses, including legal fees, arising from civil rights violations, but it prohibits such indemnification if the employee "acted in a grossly negligent, willful or malicious manner." See also S13. In some cases, it may be more efficient to seek a ruling on the indemnification issue as part of the underlying civil rights lawsuit. However, the question of indemnity puts the economic interests of the town and the officer directly at odds. Therefore, if Town Counsel for Town B defends both the town and the officers, the committee believes that it would be inappropriate for Town Counsel to raise the issue of whether the officers were entitled to indemnification in the civil rights lawsuit. Indeed, the committee also believes that it would not be obvious that Town Counsel could represent the town and the officers unless the town concluded at least prima facie that the officers would be entitled to indemnification. Here the outcome of the judicial inquest furnishes a basis for that conclusion. If the trial of the civil rights actions raises any question that indemnification is not appropriate, it should be resolved in a separate lawsuit. See Karas v. Snell, 11 Ill., 2d 233, 244-245 (1957).
The fact that a claim for punitive damages has been made by the plaintiff does not change our conclusion even though it may raise issues of willful and malicious conduct that may be relevant, and perhaps even conclusive, in an indemnification proceeding. So long as the city has made a decision that it is appropriate to maintain a common defense with the police officers then the fact that there would be an actual conflict of interest if the facts are otherwise than it supposes ought not make it impossible for the city solicitor to represent the officers and the city. The muncipality itself cannot be held for liable for punitive damages, City of Newport v. Fact Concerts, Inc. 453 U.S. 247 (1981), and there is no reason why a decision to maintain the common defense that the individual defendants were not negligent cannot also include an argument that the individual defendants were also free from malicious conduct. The committee concludes that the first requirement of DR 5-105(C), that it be "obvious" that the attorney can adequately represent the interests of each client, may be satisfied in this type of case when the defendants agree that on the facts of the particular case it is appropriate to pursue a common defense.
In order to satisfy the second requirement of DR 5-105(C), Town Counsel must obtain the informed consent of both the appropriate person to give consent on behalf of the town and the individual officers. The New Jersey Supreme Court in the opinion cited above noted that as a matter of its rules of professional conduct, a public entity cannot consent to representation by its attorney when there is an actual conflict of interest, but it appears to have held that consent is not needed if the conflict is only potential and the other conditions for joint representation quoted at the beginning of this response have been met. Massachusetts has no such restriction on the ability of a public entity to give consent in a DR 5-105 situation. As far as actual conflicts are concerned, "consent" is not likely to become an issue, at least in litigation, because it is unlikely that a lawyer would ever be able to meet the objective standard of the "obviousness" test. As far as potential conflicts are concerned, however, we do believe that since DR 5-105(A) and (C) apply to them, consent must be sought from the reponsible public officials and, if given, may be relied upon.
In seeking such consent, Town Counsel in this matter should discuss the implications of Monell with the responsible town officials and its potential applicability to the particular case. The individual defendants must also be informed that if an actual conflict of interest were to develop, or seemed sufficiently likely to develop during the proceedings, it would be necessary for the city solicitor to cease representing them. The same situation occurs in many cases where counsel for a corporation also represents corporate employees. In addition, the individual defendants must be informed and must understand that the substantive result, if the plaintiffs prevail on the punitive damage claim, might be to deny them any right of indemnification under the statute. While these considerations suggest that the situation of a city solicitor representing both the city and individual police officers in a S1983 case is fraught with peril and requires careful consideration and explanation, we believe that there are situations, and this may be one of them, when it is permissible for the city solicitor to handle a common defense. Town Counsel should also discuss with all his potential clients the nature of the attorney-client privilege in cases of joint representation, including the normal rule that there is no confidentiality among individuals jointly represented, and the possibility that, if a common defense does not eventuate or unforeseen conflicts arise, Town Counsel may have received information that could preclude him from continuing to represent some or all of the defendants.
However, if all the conditions set forth in this response have been met, including the deferral of final resolution of indemnity issues and the obtaining by Town Counsel of the informed consent of both Town B and the individual defendants, then the committee concludes that Town Counsel may represent both Town B and the officers without running afoul of DR 5-105.

Permission to publish granted by the Board of Delegates on June 24, 1986.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.