Representing police officers and municipalities: A conflict of interest for a municipal attorney in a § 1983 police misconduct suit

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2825-2862

  Tell, Nicole G ^a  

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EID: 0031519144     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (262)

1. State v. Livoti, 632 N.Y.S.2d 425 (1995).
2. David Gonzalez, For a Mother, Vindication and Sorrow, N.Y. Times, Feb. 8, 1997, at 23.
3. See David Kocieniewski, Dismissal Is Urged for Police Officer in a Bronx Death, N. Y. Times, Feb. 8,1997, at 1. A large rally of citizens stood by the courthouse chanting and shouting, "No Justice, No Peace," as helmeted police officers cheered the verdict and attempted to keep the peace. Jorge Fitz-Gibbon et al., Threats of Death vs. Livoti, Daily News, Oct. 9, 1996, at 8; Mike McAlary, The Police Cheer While the Citizens Jeer, Daily News, Oct. 9, 1996, at 8.
4. See David Kocieniewski, Dismissal Is Urged for Police Officer in a Bronx Death, N. Y. Times, Feb. 8,1997, at 1. A large rally of citizens stood by the courthouse chanting and shouting, "No Justice, No Peace," as helmeted police officers cheered the verdict and attempted to keep the peace. Jorge Fitz-Gibbon et al., Threats of Death vs. Livoti, Daily News, Oct. 9, 1996, at 8; Mike McAlary, The Police Cheer While the Citizens Jeer, Daily News, Oct. 9, 1996, at 8.
5. See David Kocieniewski, Dismissal Is Urged for Police Officer in a Bronx Death, N. Y. Times, Feb. 8,1997, at 1. A large rally of citizens stood by the courthouse chanting and shouting, "No Justice, No Peace," as helmeted police officers cheered the verdict and attempted to keep the peace. Jorge Fitz-Gibbon et al., Threats of Death vs. Livoti, Daily News, Oct. 9, 1996, at 8; Mike McAlary, The Police Cheer While the Citizens Jeer, Daily News, Oct. 9, 1996, at 8.
6. This trend towards civil justice is not a recent phenomenon but has been increasing over the past twenty years. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Rizzo v. Goode, 423 U.S. 362 (1976); see also Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995) (describing the civil rights action brought by the passenger in Rodney King's car). As Judge Scheindlin read Officer Livoti's not guilty verdict, a man screamed, "Where do we go for justice?" Jim Dwyer, Police Dept. Goes Soft on Its Brutes, Daily News, Oct. 10, 1996, at 8.
7. Kocieniewski, supra note 3, at 1.
8. 42 U.S.C. § 1983 (1994).
9. The statute provides, in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Id.
10. See infra part I.A.
11. See Jorge Fitz-Gibbon, City Says Livoti Acted on His Own, Daily News, Oct. 23, 1996, at 13.
12. See Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir. 1984) (explaining how the structure of § 1983 actions against municipalities and employees promotes liability shifting).
13. The Officer Livoti scenario is an egregious example. Due to the high level of publicity in this case and commentary about Livoti's questionable conduct, the New York City Corporation Counsel would most likely claim, as they did in the wrongful death action, that Officer Livoti was not acting as a city employee but rather on his own. See Fitz-Gibbon, supra note 9, at 13. In fact, Officer Livoti was fired from the police force and, therefore, would not be eligible for representation.
14. See infra part II (discussing the ethical rules that are potentially violated in § 1983 cases where the municipal attorney jointly represents the police officer and the municipality).
15. See Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1292 n.43 (1981) [hereinafter Developments] (noting that simultaneous representation was prohibited in the London Ordinance of 1280, one of the earliest professional codes).
16. Model Rules of Professional Conduct Rule 1.7 (1983) [hereinafter Model Rules]; Model Code of Professional Responsibility Canon 5, Canon 9 (1980) [hereinafter Model Code]; see Nancy J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 Tex. L. Rev. 211, 211-12 (1982); Donald R. McMinn, Note, ABA Formal Opinion 88-356: New Justification for Increased Use of Screening Devices to Avert Attorney Disqualification, 65 N.Y.U. L. Rev. 1231, 1238 (1990).
17. Model Rules of Professional Conduct Rule 1.7 (1983) [hereinafter Model Rules]; Model Code of Professional Responsibility Canon 5, Canon 9 (1980) [hereinafter Model Code]; see Nancy J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 Tex. L. Rev. 211, 211-12 (1982); Donald R. McMinn, Note, ABA Formal Opinion 88-356: New Justification for Increased Use of Screening Devices to Avert Attorney Disqualification, 65 N.Y.U. L. Rev. 1231, 1238 (1990).
18. Model Rules, supra note 14, Rule 1.7 cmt. 1.
19. Id. Rule 1.1.
20. Id. Rule 1.6.
21. Id. Rule 1.3 cmt. 1.
22. See Randall B. Bateman, Return to the Ethics Rules as a Standard for Attorney Disqualification: Attempting Consistency in Motions for Disqualification by the Use of Chinese Walls, 33 Duq. L. Rev. 249, 249 (1990) (explaining that there has been an increase in motions to disqualify attorneys for conflicts of interest); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interest: The Need for a Coherent Framework, 66 Notre Dame L. Rev. 1, 1 (1990).
23. See Randall B. Bateman, Return to the Ethics Rules as a Standard for Attorney Disqualification: Attempting Consistency in Motions for Disqualification by the Use of Chinese Walls, 33 Duq. L. Rev. 249, 249 (1990) (explaining that there has been an increase in motions to disqualify attorneys for conflicts of interest); Marc I. Steinberg & Timothy U. Sharpe, Attorney Conflicts of Interest: The Need for a Coherent Framework, 66 Notre Dame L. Rev. 1, 1 (1990).
24. See 1 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.1:101 (2d ed. Supp. 1997) [hereinafter Hazard & Hodes, Law of Lawyering]; Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253, 1260 (1994); Charles W. Wolfram, The Concept of a Restatement of the Law Governing Lawyers, 1 Geo. J. Legal Ethics 195 (1987). See generally Developments, supra note 13 (discussing the various conflicts of interest faced by attorneys).
25. See 1 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.1:101 (2d ed. Supp. 1997) [hereinafter Hazard & Hodes, Law of Lawyering]; Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253, 1260 (1994); Charles W. Wolfram, The Concept of a Restatement of the Law Governing Lawyers, 1 Geo. J. Legal Ethics 195 (1987). See generally Developments, supra note 13 (discussing the various conflicts of interest faced by attorneys).
26. See Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996); Silva v. Witschen, 19 F.3d 725, 732 (1st Cir. 1994); Coleman v. Smith, 814 F.2d 1142, 1147-48 (7th Cir. 1987); Gordon v. Norman, 788 F.2d 1194, 1198 (6th Cir. 1986); Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 1982); Kounitz v. Slaatten, 901 F. Supp. 650, 659 (S.D.N.Y. 1995); Clay v. Doherty, 608 F. Supp. 295, 305 (E.D. Ill. 1985); Barkley v. City of Detroit, 514 N.W.2d 242, 247 (Mich. Ct. App. 1994); Minneapolis Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 819-20 (Minn. Ct. App. 1992); In re Opinion 552 of Advisory Comm. on Professional Ethics, 507 A.2d 233, 235 (N.J. 1986); Galligan v. City of Schenectady, 497 N.Y.S.2d 186, 187 (App. Div. 1986).
27. See infra part III.A; see also Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 Fordham L. Rev. 71, 120-21 (1996) (describing the "fragmented" standards that courts employ to determine disqualification of attorneys).
28. See infra part III.A.
29. See infra part II.A.
30. 42 U.S.C. § 1983 (1994).
31. Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting Monroe v. Pape, 365 U.S. 167, 171-72 (1961)).
32. Monroe, 365 U.S. at 187-92.
33. 436 U.S. 658 (1978).
34. Id. at 690-91 (overruling Monroe, 365 U.S. 167); see Karen M. Blum, Local Government Liability Under Section 1983, in Section 1983 Civil Rights Litigation & Attorney's Fees 1994, 329, 335 (PLI Litig. & Admin. Practice Course Handbook Series No. 511, 1994).
35. See infra part II (discussing conflicts of interest for the municipal attorney in § 1983 litigation).
36. 42 U.S.C. § 1983 (1994).
37. Id.
38. When a plaintiff names the police officer in his individual capacity, he is seeking to "impose personal liability upon a government official for actions he takes under color of state law." Kentucky v. Graham, 473 U.S. 159, 165 (1985). A person being sued in his personal capacity comes to the court as an individual, and consequently, a plaintiff need not establish a connection to a governmental policy or custom in order to show that the official, acting under color of state law, violated his constitutional rights. Id. at 166. Personal capacity suits do not necessarily imply that the officer was acting outside of his official capacity - for example, that the acts were unnecessary to the performance of his job when the alleged violation took place - they only indicate that he will be held personally responsible for these actions. See Hafer v. Melo, 502 U.S. 21, 28 (1991).
39. Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see Steven S. Cushman, Municipal Liability Under Section 1983: Toward a New Definition of Municipal Policymaker, 34 B.C. L. Rev. 693, 699 (1993); Michael T. Jilka, Immunity Under Section 1983, 65 J. Kan. B. Ass'n 30, 31 (1996).
40. Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see Steven S. Cushman, Municipal Liability Under Section 1983: Toward a New Definition of Municipal Policymaker, 34 B.C. L. Rev. 693, 699 (1993); Michael T. Jilka, Immunity Under Section 1983, 65 J. Kan. B. Ass'n 30, 31 (1996).
41. See Graham, 473 U.S. at 166. An official capacity suit, therefore, requires a plaintiff to establish the Monell requirements of an official policy or custom, or prove a failure to train which amounts to deliberate indifference to the plaintiff's needs. Blum, supra note 29, at 342; see infra part I.A.2.
42. Monell v. Department of Social Servs., 436 U.S. 658, 691-92 (1978); Blum, supra note 29, at 336; Cushman, supra note 34, at 701-02.
43. Harvey Brown & Sarah V. Kerrigan, 42 U.S.C. § 1983: The Vehicle for Protecting Public Employees' Constitutional Rights, 47 Baylor L. Rev. 619, 622 (1995);
44. Cushman, supra note 34, at 702-03; Neal Miller, Less-Than-Lethal Force Weaponry: Law Enforcement and Correctional Agency Civil Law Liability for the Use of Excessive Force, 28 Creighton L. Rev. 733, 762 (1995).
45. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir.), cert. denied, 112 S. Ct. 640 (1991); Cushman, supra note 34, at 706-07.
46. McNabola v. Chicago Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993); Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919 (1989); Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability Under Section 1983, 62 S. Cal. L. Rev. 539, 587 (1989); Miller, supra note 37, at 762-63.
47. City of Canton v. Harris, 489 U.S. 378, 390-92 (1989) (holding that inadequate police training may serve as a basis for § 1983 liability).
48. See id. at 390; see also Robinson v. City of St. Charles, 972 F.2d 974, 977 (8th Cir. 1992) (finding that plaintiff in an excessive force case must prove city both knew police training was inadequate and deliberately chose to ignore the situation).
49. The Supreme Court has held that, because the notion of official immunity was grounded in common law, Congress intended that common law absolute immunity should apply to § 1983 actions against government officials. Tower v. Glover, 467 U.S. 914, 920-21 (1984); Owen v. City of Independence, 445 U.S. 622, 637 (1980); Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Throughout the twentieth century, however, the Court has chipped away the common law defense of absolute immunity for governmental officials, and instead has adopted a more functional approach to the immunity doctrine. See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. Rev. 1467, 1499-500 nn.106-08 (1996). Because police officers exercise vast power, they enjoy a qualified, rather than an absolute, immunity. See Pierson v. Ray, 386 U.S. 547, 555-57 (1967); Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L. Rev. 597, 601-02 (1989).
50. The Supreme Court has held that, because the notion of official immunity was grounded in common law, Congress intended that common law absolute immunity should apply to § 1983 actions against government officials. Tower v. Glover, 467 U.S. 914, 920-21 (1984); Owen v. City of Independence, 445 U.S. 622, 637 (1980); Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Throughout the twentieth century, however, the Court has chipped away the common law defense of absolute immunity for governmental officials, and instead has adopted a more functional approach to the immunity doctrine. See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. Rev. 1467, 1499-500 nn.106-08 (1996). Because police officers exercise vast power, they enjoy a qualified, rather than an absolute, immunity. See Pierson v. Ray, 386 U.S. 547, 555-57 (1967); Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L. Rev. 597, 601-02 (1989).
51. Terry D. Edwards, Police Legal Advisors - Friend or Foe? Ethical Dilemmas in 42 U.S.C. Section 1983 Litigation, 17 J. Legal Prof. 143, 147 (1992).
52. 483 U.S. 635 (1987).
53. Id. at 640; see Denver Area Educ. Telecommunications Consortium, Inc., v. Federal Communications Comm'n, 116 S. Ct. 2374, 2390 (1996).
54. Just because a police officer asserts a qualified immunity defense, however, it does not follow that the jury will accept this defense and relieve him of liability in his individual capacity. A jury may nonetheless believe that the officer acted recklessly or with wanton indifference and consequently, impose punitive damages on him in his personal capacity.
55. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
56. Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6 (1986)).
57. See supra part I.A.1.
58. Hafer v. Melo, 502 U.S. 21, 25 (1991). See infra part I.B.2 discussing defenses available to the municipality, and therefore, to the police officer sued in his official capacity.
59. 445 U.S. 622 (1980).
60. Id. at 651; see Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 Iowa L. Rev. 273, 274 (1994).
61. See Gordon v. Norman, 788 F.2d 1194, 1197 (6th Cir. 1986); see also Johnson v. Board of County Comm'rs, 85 F.3d 489, 493 (10th Cir. 1996) (noting that the municipality's defense could be that the official "acted in a manner contrary to the policy or custom of the entity"). It should be noted, however, that the officer may be deprived of his qualified immunity defense if the municipality can prove that the officer did not act according to municipal or departmental policy. Furthermore, the evidence the municipality might use to support its defense "may very well be the same evidence establishing liability on behalf of the [police officer]." Edwards, supra note 43, at 147.
62. Smith v. Wade, 461 U.S. 30, 51 (1983); Gordon, 788 F.2d at 1199.
63. Smith, 461 U.S. at 51.
64. Newman v. Piggie Park Enters. Inc., 390 U.S. 400 (1968).
65. See Blum, supra note 29, at 349-50 (explaining that a plaintiff can establish a successful § 1983 action against the governmental entity even if the individual defendant is entitled to qualified immunity); Jilka, supra note 34, at 36 (same).
66. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
67. See infra part II.D.
68. See, e.g., Cal. Gov't Code § 995 (West 1995) (ensuring representation of employees of any California public entity); N.J. Stat. Ann. § 40A:14-155 (West 1993) (authorizing representation to a member or officer of a municipal police department or force); N.Y. Pub. Off. Law § 18(3)(a) (McKinney 1988) (providing representation to officers and employees of public entities, except New York State employees or employees of municipalities that have adopted other local laws); N. Y. Gen. Mun. Law § 50-k(2) (McKinney 1986) (ensuring the defense of employees of New York City); N.Y. Gen. Mun. Law § 50-j(5) (McKinney 1986) (providing representation specifically to police officers).
69. See, e.g., N.Y. Pub. Off. Law § 18(3)(a) (McKinney 1988) (stating that defense is provided for an employee "acting within the scope of his public employment or duties"); N.Y. Gen. Mun. Law §§ 50-k(2), 50-l, 50-m(1) (McKinney 1986) (same); accord Cal. Gov't Code § 995 (West 1995) (same).
70. Neal v. Gatlin, 35 Cal. App. 3d 871, 875 (1973) (citing Burgdorf v. Funder, 246 Cal. App. 2d 443 (1966)); see Joel Berger, New York City Corporation Counsel's Viewpoint, 9 J. Suffolk Acad. L. 69, 72-73 (1994) (explaining that New York City does not consider officers to be in the scope of their employment when they act as individuals in personal altercations).
71. Coleman v. Smith, 814 F.2d 1142, 1149 (7th Cir. 1987).
72. See Eugene P. Ramirez, Note, Police Misconduct Suits: The Duty to Defend; The Duty to Indemnify; And Whether There Is a Duty to Provide Separate Counsel Under California Government Code Section 825, 8 Whittier L. Rev. 1041, 1045 (1987).
73. Coleman, 814 F.2d at 1149.
74. See Blood v. Board of Educ., 509 N.Y.S.2d 530, 532 (App. Div. 1986); see also Ramirez, supra note 64, at 1045 (explaining the California test for determining "scope of employment"). For example, in Blood, a New York State appellate court found that a school teacher accused of striking a student in the eye with a bookbag was acting within the scope of the teacher's employment. Blood, 590 N.Y.S.2d at 530. Because a teacher's anger is a generally foreseeable consequence of his duties, only extreme conduct, completely removed from his occupational duties, would warrant a determination by corporation counsel that representation was not required. Id. at 532. This broad definition indicates that a municipality may determine that a police officer acted within the scope of employment in order to provide him with representation, yet argue that the officer did not act in good faith. See infra part II.B.
75. See Linda M. Cronin, Defending the Individual Police Officer, 9 J. Suffolk Acad. L. 83, 89-90 (1994). Cronin explains that suburban Nassau County is more willing to represent its police officers in a variety of situations than New York City, which is less responsive to officers' requests for representation. She relates that New York City no longer thinks of its police officers as "24-hour cops" and will likely find officers acting outside the scope of employment when off-duty. Id. at 90-91.
76. The New York City Corporation Counsel will not represent a police officer who was "in violation of any rule or regulation of his agency at the time the alleged act or omission occurred." N.Y. Gen. Mun. Law § 50-k(2) (McKinney 1986). Additionally, New York City police officers are not eligible for Corporation Counsel's representation if any disciplinary proceedings are pending against them by the police department. N.Y. Gen. Mun. Law § 50-k(5) (McKinney 1986). If the plaintiff files a complaint with the Civilian Complaint Review Board and the investigation is in progress, this would immediately prohibit the city from representing the officer. See Cronin, supra note 67, at 95.
77. The New York City Corporation Counsel requires that a police officer send a request for representation to his commanding officer, who makes a recommendation about representation and then refers the request to the police department's deputy commissioner of legal matters. If the deputy commissioner endorses the representation, the request is forwarded to the Corporation Counsel, who makes an additional determination. Telephone Interview with a Managing Attorney, The New York City Corporation Counsel (Nov. 19, 1996) [hereinafter Corporation Counsel Interview]. In Detroit, the city council considers the report and recommendation of the corporation counsel to determine whether the officer should be represented by the corporation counsel. Barkley v. City of Detroit, 514 N.W.2d 242, 243 (Mich. Ct. App. 1994).
78. See infra part II.C.
79. See infra part II.C.
80. Telephone Interview with a Managing Attorney, The New York City Corporation Counsel (Mar. 4, 1997); Telephone Interview with Taso Kalapoutis, Deputy County Attorney, The Nassau County Attorney's Office (Mar. 5, 1997) [hereinafter Nassau Interview]; Telephone Interview with Bob Cabble, Chief of the State and Federal Torts Bureau, The Suffolk County Attorney's Office (Mar. 6, 1997) [hereinafter. Suffolk Interview]. Additionally, no written procedures - either formal or informal - exist to guide the municipal attorney throughout the litigation.
81. See Cal. Gov't Code § 825(a) (West 1995); N.Y. Pub. Off. Law § 18(4)(a) (McKinney 1988); N.Y. Gen. Mun. Law §§ 50-k(3), 50-l, 50-m (McKinney 1986).
82. In New York City, the city's comptroller makes the final indemnification determination after the litigation. Corporation Counsel Interview, supra note 69. The municipality is most likely concerned with expending limited funds; consequently, the decision whether to indemnify is made subsequent to litigation when the municipality can better evaluate the police officer's actions and calculate how much public money has already been spent on the defense. Nassau County's statute, however, requires such scope for indemnification to be determined prior to representation by a majority vote of a three-person panel. N.Y. Gen. Mun. Law § 50-l (McKinney 1986). In Nassau County, indemnification is provided in a vast majority of the cases. Nassau Interview, supra note 72.
83. Berger, supra note 62, at 74.
84. See Ramirez, supra note 64, at 1056. Furthermore, under some "reservation of rights" letters, the public entity can recover the cost of the defense from the police officer if it determines that the police officer acted outside the scope of his employ-ment. Id. at 1054.
85. See id. at 1050-51.
86. See supra part I.C.
87. Ramirez, supra note 64, at 1041.
88. See, e.g., Cal. Gov't Code § 825(b) (West 1985) (amending earlier statute to allow city counsel to decide whether to indemnify for punitive or exemplary damages); N.Y. Gen. Mun. Law § 50-l (McKinney 1986) (allowing Nassau County to indemnify police officer for punitive damages); N.Y. Gen. Mun. Law § 50-m (McKinney 1986) (same for Suffolk County).
89. In New York City, the New York General Municipal Law does not directly provide for indemnification of punitive damages. N.Y. Gen. Mun. Law § 50-k(3). Rather, the Corporation Counsel makes a recommendation regarding whether punitive damages should be indemnified and the Comptroller makes the final determination. Corporation Counsel Interview, supra note 69.
90. See supra part I.D.1.
91. Corporation Counsel Interview, supra note 69; Nassau Interview, supra note 72; see William H. Pauley III, Representing the Police Department, 9 J. Suffolk Acad. L. 77, 78 (1994).
92. Model Rules, supra note 14, Rule 1.6. Rule 1.6 applies to any information revealed to the lawyer relating to the client's representation, and is not restricted to communications by the client. Id. Rule 1.6 cmt. 5. The lawyer's duty of confidentiality is different from the attorney-client evidentiary privilege that protects the disclosure of certain client communications in judicial proceedings. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 358, at 3 (1990) (explaining the difference between the Model Rule duty of confidentiality and the attorney-client evidentiary privilege).
93. Debra Bassett Perschbacher & Rex R. Perschbacher, Enter at Your Own Risk: The Initial Consultation & Conflicts of Interest, 3 Geo. J. Legal Ethics 689, 702 (1990).
94. Bridge Prods., Inc. v. Quantum Chem. Corp., No. 88-C10734, 1990 WL 70857, at *4 (N.D. Ill. Apr. 27, 1990); Perschbacher & Perschbacher, supra note 85, at 702-03 nn.50-52.
95. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 358, at 1 (1990).
96. Id. at 8.
97. See id.; Bridge Prods., Inc. v. Quantum Chem. Corp., No. 88-C10734, 1990 WL 70857, at *4 (N.D. Ill. Apr. 27, 1990) (focusing on what the client, rather than the attorney, reasonably believed about the relationship); DCA Food Indus., Inc. v. Tasty Foods, Inc., 626 F. Supp. 54, 59-60 (W.D. Wis. 1985) (applying test set out in Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir.), cert. denied, 439 U.S. 955 (1978)); Perschbacher & Perschbacher, supra note 85, at 703 & n.52 (noting that attorney-client relationships have been found where the client reasonably believed the attorney was acting in such a capacity).
98. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 358, at 6 (1990); see John J. Doyle, Jr. & Michael L. Blumenthal, The Defendants' Perspective: Ethical Considerations in Representing and Counseling Multiple Parties in Employ-ment Litigation, 10 Lab. Law. 19, 32-33 (1994).
99. See Model Rules, supra note 14, Rule 1.13 cmt. 3.
100. Id. For example, an in-house corporate attorney who is interviewing an employee of the corporation in order to investigate corporate wrongdoing cannot reveal any information she obtains to outside authorities, but may reveal those confidences to the corporate officers in charge.
101. Perschbacher & Perschbacher, supra note 85, at 690; Richard C. Solomon, Wearing Many Hats: Confidentiality and Conflicts of Interest Issues for the California Public Lawyer, 25 Sw. U. L. Rev. 265, 333-34 (1996). The New York City Corporation Counsel's municipal attorneys explain to the police officer that they currently represent the city, but reserve the right to determine whether they will also represent the officer. The municipal attorneys also explain that the officer's communications will not necessarily be held in confidence and that conflicts may exist in the joint representation of the municipality and the police officer. Corporation Counsel Interview, supra note 69.
102. Corporation Counsel Interview, supra note 69.
103. Id.; Nassau Interview, supra note 72; Suffolk Interview, supra note 72. The court in Dunton v. County of Suffolk recognized this problem when they noted that the initial letter to the police officer informing him of potential conflicts was inadequate. 729 F.2d 903, 909 (2d Cir. 1984); see Doyle & Blumenthal, supra note 90, at 23; see also England v. Town of Clarkstown, 634 N.Y.S.2d 958, 959 (Sup. Ct. 1995) (finding that Town failed to contradict officers' claims that they were never informed of the potential conflicts that could occur in § 1983 actions, and that they could be found personally liable).
104. Berger, supra note 62, at 75.
105. See id. (discussing the representation letter the police officer must sign requiring him to waive his attorney-client confidentiality ethical rule).
106. Id.
107. Mary C. Daly, An Overview of Ethical Dilemmas, 9 J. Suffolk Acad. L. 113, 120 (1994).
108. See supra notes 88-89 and accompanying text; Perschbacher & Perschbacher, supra note 85, at 703.
109. See Perschbacher & Perschbacher, supra note 85, at 690, 702-03.
110. See Barkley v. City of Detroit, 514 N.W.2d 242, 244 (Mich. Ct. App. 1994) (finding that the city council's decision to represent is final); Williams v. New York, 476 N.E.2d 317, 317 (N.Y. 1985) (stating that scope-of-employment determination is to be made by corporation counsel); Nassau Interview, supra note 72.
111. This is most apparent in municipalities that refuse to reimburse a police officer who retains outside counsel. In some municipalities, however, an attorney who thinks that the officer may have done something wrong will transfer the case to outside counsel paid for by the municipality. This is the usual practice in Nassau County, Long Island. Nassau Interview, supra note 72.
112. See Minneapolis Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 822 (Mich. Ct. App. 1992) (finding that city tends to "make choices of representation that maximize economy, expertise, and efficiency"); Robert W. Schmidt, The Nassau County System of Indemnification, 9 J. Suffolk Acad. L. 43, 47 (1994) (explaining the pressure placed upon municipal attorneys to keep cases in-house).
113. See Cronin, supra note 67, at 95. The determination that the police officer acted outside the scope of his employment may also impact the municipality's decision about indemnification. See supra part I.D.2. Additionally, due to the broad definition of "within the scope," the attorney may make a hasty determination that the officer acted within the scope of employment to provide him with representation. See supra notes 61-66 and accompanying text. This may create problems later in the litigation. See infra part II.C.
114. Model Rules, supra note 14, Rule 1.7. Rule 1.7(a) provides: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. Id.
115. 107. Id.; see Hazard & Hodes, Law of Lawyering, supra note 20, § 1.7:207.
116. Model Rules, supra note 14, Rule 1.7 cmt. 7.
117. Id.
118. Id. Rule 1.7(a)(2).
119. Id. Rule 1.7(a)(1). The Model Rules shed no light on the meaning of "reasonably believes" in this context, except to say that the term indicates situations in which the lawyer thinks the matter or circumstances are reasonable. Id. Terminology cmt. 8.
120. The Dunton v. County of Suffolk case provides a classic example of the dangers involved in jointly representing these co-defendants. 729 F.2d 903 (2d Cir. 1984). In that police misconduct action, the Suffolk County Attorney answered the complaint with the affirmative defense that Officer Pfeiffer was acting in good faith pursuant to official policy. Id. at 906. At trial, however, he argued that Pfeiffer did not act within the duties of a police officer. Id. (finding the County Attorney's remarks that Pfeiffer "was acting as an irate husband rather than a police officer" to be indicative of actions outside the scope of employment). The Dunton court held that the County Attorney had violated the ethics rules prohibiting an attorney from representing clients with adverse interests and those cautioning against the appearance of impropriety. Id. at 908.
121. Additionally, when a suit is brought against the police officer in his individual and official capacities, the same conflict of interest would exist for an attorney who attempts to represent the police officer in both capacities. As noted above, an official capacity suit is considered to be a suit against the entity, and as such is conceived as if equivalent to the action against the municipality. See supra notes 34-35 and accompanying text. Hence, if a direct conflict exists between the defenses of these co-defendants, the ethical rules would prohibit the same attorney from representing the police officer in both capacities. Under Model Rule 1.7(a), the police officer would need one attorney to represent him in his official capacity - the municipal attorney - and a different attorney to represent him in his individual capacity. See Model Rules, supra note 14, Rule 1.7(a).
122. Each client must consent after consultation. See Model Rules, supra note 14, Rule 1.7(a)(2).
123. The Model Rules require that "the lawyer reasonably believ[e] the representation will not adversely affect the relationship with the other client . . . ." Id. Rule 1.7(a)(1).
124. See supra part II.A.
125. There is the possibility that police unions could play a role in providing representation to police officers in § 1983 actions. See Infra note 241.
126. Government lawyers frequently have difficulty identifying their client in order to determine who has authority to give instructions. Model Rules, supra note 14, Rule 1.13 cmt. 7. According to Rule 1.13, an attorney may undertake the dual representation of the organization and an individual constituent, but must still meet all the conflicts of interest parameters of Model Rule 1.7. Id. Rule 1.13. The problem of determining when a lawyer can reasonably represent two clients with potential conflicts under Rule 1.7 is exacerbated, however, when one of the clients is an entity. Because it is difficult to determine the specific identity of the government client, its interests become hard to define.
127. This is particularly true for municipal attorneys who would transfer the case to outside counsel, paid for by the municipality, if a conflict arose. See Schmidt, supra note 104, at 47.
128. Cronin, supra note 67, at 94-95; Corporation Counsel Interview, supra note 69; see Harris v. Rivera, 921 F. Supp. 1058, 1060-61 (S.D.N.Y. 1995). Sometimes, the police officer brings an action against the municipality if it refuses to indemnify for expenses or damages. See Mothersell v. City of Syracuse, No. 95-CV-1452 (FJS) (GJD), 1997 WL 27574, at *1 (N.D.N.Y. Jan. 22, 1997); Torres v. New York City Dep't of Corrections, No. 93 Civ. 6296 (MBM), 1995 WL 63159, at *1 (S.D.N.Y. Feb. 15, 1995); Coker v. City of Schnectady, 613 N.Y.S.2d 746, 747 (App. Div. 1994). These suits, brought on behalf of the police officer by the police officer's union, add to the continued fight between the union and the Corporation Counsel on how to best handle § 1983 litigation involving police officers. See Cronin, supra note 67, at 90.
129. One alternative to providing joint representation is to transfer the police officer's representation to a municipal attorney other than the screening attorney, thus creating the impression of separate representation. A police officer, with limited funds and limited knowledge of the legal and ethical implications, may be more inclined to consent to this type of representation, as he may believe it has less chance of creating conflicts for the municipal attorney or problems for the police officer. The transfer of the police officer's representation to another division or to another municipal attorney, however, does not cure the ethical problem. Vicarious disqualification under Rule 1.10 would prohibit a different municipal attorney from representing the police officer. See Model Rules, supra note 14, Rule 1.10(a). Model Rule 1.10 is employed to prevent the sharing of client confidences between lawyers in the same firm. Under Rule 1.10, when one lawyer is prohibited from representing a client due to a conflict of interest, all lawyers associated with her firm are also prohibited from representing that client. Id. This "vicarious disqualification" helps to preserve the lawyer's duty of loyalty and to avoid the appearance of impropriety against which the Model Code cautions. See Model Code, supra note 14, Canon 9; Steinberg & Sharpe, supra note 19, at 10-11.
130. See supra note 60.
131. See Minnesota Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 820 (Minn. Ct. App. 1992) (finding that the city attorney can represent co-defendants when their legal positions are consistent); Schmidt, supra note 104, at 45; Corporation Counsel Interview, supra note 69; Nassau Interview, supra note 72; Suffolk Interview, supra note 72.
132. See Clay v. Doherty, 608 F. Supp. 295, 303 (N.D. Ill. 1985) (describing the possible conflicts that might arise if new evidence is uncovered); Pauley, supra note 83, at 78 (discussing how during discovery the attorney can learn information from other police witnesses); Schmidt, supra note 104, at 49-50 (explaining that the initial determination whether to provide representation may change if additional facts are learned).
133. See supra part II.B. Although this creates the type of direct conflict of interest predicament anticipated by Model Rule 1.7(a), municipalities with no - or perhaps vague - statutory direction may be inclined to continue the joint representation.
134. Corporation Counsel Interview, supra note 69. Conversely, it is possible that due to the objective "in-scope" determination for representation by a municipality, the attorney would continue to find that the officer acted within the scope of his employment in order to continue to provide representation, while at the same time argue that the officer acted in bad faith. See supra notes 61-66 and accompanying text.
135. The Nassau County Attorney would continue to represent the county after obtaining separate representation for the police officer. Nassau Interview, supra note 72. Suffolk County, however, has never been in the position of "cutting loose" a police officer once an attorney-client relationship has been established, although the possibility exists for this to happen. Telephone Interview with Bob Cabble, Chief of the State and Federal Torts Bureau, The Suffolk County Attorney's Office (Mar. 18, 1997).
136. See supra part II.B.
137. See supra notes 85-90 and accompanying text.
138. See Marshall J. Breger, Disqualification for Conflicts of Interest and the Legal Aid Attorney, 62 B.U. L. Rev. 1115, 1117 (1982); Steinberg & Sharpe, supra note 19, at 5-6.
139. Model Rules, supra note 14, Rule 1.9(a).
140. See id.; Doyle & Blumenthal, supra note 90, at 31; Steinberg & Sharpe, supra note 19, at 5-6.
141. See Solomon, supra note 93, at 343-44; Steinberg & Sharpe, supra note 19, at 6; see also Model Rules, supra note 14, Rule 1.6 cmt. 21 (stating that "[t]he duty of confidentiality continues after the client-lawyer relationship has terminated").
142. Model Rules, supra note 14, Rule 1.9(a).
143. Nassau Interview, supra note 72; see Barkley v. City of Detroit, 514 N.W.2d 242, 246 (Mich. Ct. App. 1994) (explaining that city attorneys violate Rule 1.9 when information they have received from a former client becomes relevant to a current client).
144. See N.Y.S. Bar Ass'n. Comm. on Professional Ethics, Op. 674, at 9 (1995).
145. T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268 (S.D.N.Y. 1953); see Bateman, supra note 19, at 252; Susan R. Martyn, Conflict About Conflicts: The Controversy Concerning Law Firm Screens, 46 Okla. L. Rev. 53, 53-54 (1993); Solomon, supra note 93, at 347.
146. T.C. Theatre Corp., 113 F. Supp. at 268; see Bateman, supra note 19, at 252-53; Developments, supra note 13, at 1328; Martyn, supra note 137, at 54.
147. Bateman, supra note 19, at 252; Developments, supra note 13, at 1328-29; Martyn, supra note 137, at 54. The test has undergone some modifications and many jurisdictions are more reluctant to disqualify lawyers in cases that would not have passed the original substantial relationship test. For example, the Second Circuit will allow a lawyer to rebut the presumption of shared confidences. Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975). The Second Circuit has also stated that the standard of proof to rebut the presumption should not be "unattainably high." Cheng v. GAF Corp., 631 F.2d 1052, 1056-57 (2d Cir. 1980) (quoting Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975)), vacated, 450 U.S. 903 (1981).
148. The practice of the New York City Corporation Counsel, which has the luxury of being a larger office, is to transfer the municipality's representation to an attorney in a different division. Corporation Counsel Interview, supra note 69.
149. See supra note 121.
150. See Model Rules, supra note 14, Rule 1.10(a) (stating that lawyers in the same firm cannot represent a client when any one lawyer in the firm is prohibited under Rule 1.9).
151. Bateman, supra note 19, at 267-68; McMinn, supra note 14, at 1254-55; see Craig A. Peterson, Rebuttable Presumptions and Intra-Firm Screening: The New Seventh Circuit Approach to Vicarious Disqualification of Litigation Counsel, 59 Notre Dame L. Rev. 399, 409-11 (1984) (advocating screening); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 Wash. L. Rev. 863, 881-85 (1987) (same).
152. Bateman, supra note 19, at 267-68; McMinn, supra note 14, at 1254-55; see Craig A. Peterson, Rebuttable Presumptions and Intra-Firm Screening: The New Seventh Circuit Approach to Vicarious Disqualification of Litigation Counsel, 59 Notre Dame L. Rev. 399, 409-11 (1984) (advocating screening); Linda A. Winslow, Comment, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 Wash. L. Rev. 863, 881-85 (1987) (same).
153. Bateman, supra note 19, at 267-68; McMinn, supra note 14, at 1255.
154. These institutional mechanisms are often referred to as "Chinese Walls," but this Note will use the phrase "screening mechanisms." Steinberg & Sharpe, supra note 19, at 20; see Bateman, supra note 19, at 251; McMinn, supra note 14, at 1233 n.15; Andrew P. Romshek, Comment, The Nebraska "Bright Line" Rule: The Automatic Disqualification of a Law Firm Due to a New Lawyer's or Nonlawyer's Prior Affiliations . . . Sensible Solution or Serious Setback?, 28 Creighton L. Rev. 213, 223 (1994).
155. Breger, supra note 130, at 1145-46; Steinberg & Sharpe, supra note 19, at 28.
156. Breger supra note 130, at 1145; Steinberg & Sharpe, supra note 19, at 27.
157. Steinberg & Sharpe, supra note 19, at 27-28.
158. Id. at 13-14.
159. Model Rules, supra note 14, Rule 1.10 cmt. 3 (commenting that in certain circumstances government lawyers who work in separate units should not be considered as part of the same firm). Some states do not even include an attorney general or city attorney's office in its definition of law "firm" for the purposes of vicarious disqualification. See Minneapolis Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 821 (Minn. Ct. App. 1992).
160. See City of New York, The 1994-95 Green Book 228-30 (1995).
161. Corporation Counsel Interview, supra note 69.
162. Id.
163. In the Nassau County Attorney's Office, for example, screening mechanisms would be ineffective due to the small size of the County Attorney's Office and the fact that the attorneys have shared responsibilities on all § 1983 cases. Nassau Interview, supra note 72.
164. See Breger, supra note 130, at 1146; Solomon, supra note 93, at 327.
165. Solomon, supra note 93, at 327; see Breger, supra note 130, at 1148-49 (discussing how legal aid offices often lack the financial resources necessary to construct effective screening mechanisms).
166. Martyn, supra note 137, at 60; Steinberg & Sharpe, supra note 19, at 28.
167. See, e.g., Keith W. Donohoe, Note, The Model Rules and the Government Lawyer, A Sword or Shield? A Response to the D.C. Bar Special Committee on Government Lawyers and The Model Rules of Professional Conduct, 2 Geo. J. Legal Ethics 987, 1000 (1989) (concluding that the government's client is the public interest); Robert P. Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625, 629 (1979) (finding that the government lawyer has special responsibilities to the public interest); Jack B. Weinstein & Gay A. Crosthwait, Some Reflections on Conflicts Between Government Attorneys and Clients, 1 Touro L. Rev. 1, 4-5 (1985) (stating that the government attorney represents the entity and the public).
168. See, e.g., Keith W. Donohoe, Note, The Model Rules and the Government Lawyer, A Sword or Shield? A Response to the D.C. Bar Special Committee on Government Lawyers and The Model Rules of Professional Conduct, 2 Geo. J. Legal Ethics 987, 1000 (1989) (concluding that the government's client is the public interest); Robert P. Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625, 629 (1979) (finding that the government lawyer has special responsibilities to the public interest); Jack B. Weinstein & Gay A. Crosthwait, Some Reflections on Conflicts Between Government Attorneys and Clients, 1 Touro L. Rev. 1, 4-5 (1985) (stating that the government attorney represents the entity and the public).
169. See, e.g., Keith W. Donohoe, Note, The Model Rules and the Government Lawyer, A Sword or Shield? A Response to the D.C. Bar Special Committee on Government Lawyers and The Model Rules of Professional Conduct, 2 Geo. J. Legal Ethics 987, 1000 (1989) (concluding that the government's client is the public interest); Robert P. Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625, 629 (1979) (finding that the government lawyer has special responsibilities to the public interest); Jack B. Weinstein & Gay A. Crosthwait, Some Reflections on Conflicts Between Government Attorneys and Clients, 1 Touro L. Rev. 1, 4-5 (1985) (stating that the government attorney represents the entity and the public).
170. Breger, supra note 130, at 1130-31.
171. See Lawry, supra note 158, at 627.
172. Model Rules, supra note 14, Rule 1.7(b). Rule 1.7(b) provides: (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests,unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. Id.; see Model Code, supra note 14, EC 5-15 (stating that anytime an attorney represents multiple clients with potentially differing interests, she should carefully examine whether her loyalties will be divided and, when in doubt, decline representation).
173. See Model Rules, supra note 14, Rule 1.7 cmt. 7 (commenting that "[s]imultaneous representation of parties whose interests . . . may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (b)").
174. Id. Rule 1.7(b)(2). Rule 1.7(b) differs from 1.7(a) in that 1.7(a) requires consent of both clients. Rule 1.7(b), however, only requires the consent of this particular client.
175. Id. Rule 1.7(b)(1). Rule 1.7(b) differs from 1.7(a) in that 1.7(a) focuses on the effect another client's representation will have on this client. Rule 1.7(b), however, asks if this client's representation will be affected by anything at all.
176. Hazard & Hodes, Law of Lawyering, supra note 20, § 1.7:301. The Model Rules make clear that in order for a client's consent to multiple representation to be valid, the consultation "shall include explanation of the implications of the common representation and the advantages and risks involved." Model Rules, supra note 14, Rule 1.7(b)(2). In the analogous section of the Model Code, the lawyer must provide "full disclosure" to the clients before they can consent to simultaneous representation. Model Code, supra note 14, DR 5-105(C). This would require the lawyer to inform the clients of "both relevant facts and principles of law, the attorney's relationship to the other client, the possible conflicts which may argue for independent counsel, and the scope of the representation." Developments, supra note 13, at 1312 n.137. As seen in the initial screening interview phase of the representation, the municipal attorney does not always fully inform the police officer of the structure of § 1983 suits and the impact that joint representation can have on the police officer's individual liability. See supra part I.A.
177. See supra part I.A.
178. See supra part I.B.
179. See supra part I.C.
180. See supra part I.D.1.
181. See supra part I.D.2.
182. See supra part I.D.2.
183. See supra part I.D.2. An example of the amount of money a muncipality may need to expend in defense of police lawsuits is New York City, which spent $270 million between 1986 and 1995 for police lawsuits, and in 1995 alone, the city paid $31 million in damages for police lawsuits. Dwyer, supra note 4, at 8.
184. See supra part I.C.1.
185. See supra part I.D.2.
186. In New York City, the reservation of rights letter that the officer must initially sign in order to request representation presents a "catch-22" for the police officer; the letter makes clear that the city will not indemnify for judgments entered against officers who obtain outside counsel. See Cronin, supra note 67, at 93-94.
187. Corporation Counsel Interview, supra note 69; Nassau Interview, supra note 72. In Suffolk County, the County Attorney has the discretion to settle any amount below $25,000. In cases involving amounts larger than $25,000, however, legislative approval by the county is required because the county is self-insured. Suffolk Interview, supra note 72; see Barkley v. City of Detroit, 514 N.W.2d 242, 247 (Mich. Ct. App. 1994) (explaining that the Detroit representation statute requires the officer to consent to any city-approved settlement in order to receive representation by the city).
188. N.Y. Gen. Mun. Law § 50-k(3) (McKinney 1986).
189. The ethics rules prescribe a client-centered approach to representation: The client directs the litigation, defines the lawful objectives of the representation, accepts or rejects settlement offers, and decides when to appeal a decision. See Model Rules, supra note 14, Rule 1.2(a); Model Code, supra note 14, EC 7-7 (stating that the "authority to make decisions is exclusively that of the client"); see also Hayes v. Eagle-Picher Indus., Inc., 513 F.2d 892, 895 (10th Cir. 1975) (finding that the lawyer lacked authority to settle a client's claim without client ratification).
190. Model Rules, supra note 14, Rule 1.7(b).
191. See William Josephson & Russell Pearce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict?, 29 How. L.J. 539, 552-55 (1986) (describing a case in which the corporation counsel and the client so greatly disagreed on whether to appeal that the client sought an order to remove counsel); supra note 104 and accompanying text.
192. Corporation Counsel Interview, supra note 69.
193. Model Rules, supra note 14, Rule 1.8(f).
194. "Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests." Id. Rule 1.7 cmt. 4.
195. See supra notes 154-57 and accompanying text.
196. Model Rules, supra note 14, Rule 1.6; see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 358, at 4-5 (1990) (explaining that adherence to Rule 1.6, for one client, may require a lawyer to withdraw from the representation of another client).
197. Model Rules, supra note 14, Rule 1.8(f)(3) (stating that a lawyer can only accept payment from a third party if the lawyer protects client confidences in accordance with Rule 1.6).
198. In Ricciuti v. New York City Transit Authority, the Corporation Counsel ignored the potential conflict involved in indemnification and argued that there was no danger of conflict because the officer was found to have acted within the scope of his duties in order to receive representation. 796 F. Supp. 84, 87 (S.D.N.Y. 1992).
199. See Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 1982); Manganella v. Keyes, 613 F. Supp. 795, 799 (D. Conn. 1985); Minneapolis Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 820 (Minn. Ct. App. 1992); In re Opinion 552 of Advisory Comm. on Professional Ethics, 507 A.2d 233, 236 (N.J. 1986).
200. Opinion 552, 507 A.2d at 236.
201. Even the practices in Nassau and Suffolk Counties, where the indemnification boards determine at the outset of litigation whether they will indemnify the police officer, do not cure the conflicts that arise regarding settlement and appeal. See Doyle & Blumenthal, supra note 90, at 29.
202. See supra part I.D.2.
203. See supra part I.D.2.
204. Linda M. Cronin, an attorney at a firm that represents the New York City police officers' union, offers this story to illustrate how some municipalities' current indemnification procedures add to the problems that arise in this joint representation context: [T]he police officers were represented by the city of New York through the trial. The city said . . . the police officers had done nothing wrong. [T]he jury returned a verdict against the police officers for compensatory damages in excess of $70 million. The jury also returned a verdict against each of the police officers for $1 million in punitive damages. The city appealed the verdict and is now backpedaling as to whether it will indemnify the police officers for the compensatory and punitive damages. . . . [I]t appears that even under these optimal circumstances, there is no guarantee of indemnification for the police officer or payment of the judgment for the plaintiff. Cronin, supra note 67, at 97.
205. See, e.g., Clay v. Doherty, 608 F. Supp. 295, 297 (N.D. Ill. 1985) (noting that plaintiff is seeking disqualification of defendants' counsel); Shadid v. Jackson, 521 F. Supp. 87, 88 (E.D. Tex. 1981) (stating that plaintiffs filed motion to disqualify defense counsel).
206. See England v. Town of Clarkstown, 634 N.Y.S.2d 958, 959 (App. Div. 1995); Galligan v. City of Schenectady, 497 N.Y.S.2d 186, 187 (App. Div. 1986).
207. See Gordon v. Norman, 788 F.2d 1194, 1196 (6th Cir. 1986); Dunton v. County of Suffolk, 729 F.2d 903, 907-08 (2d Cir. 1984).
208. See Bateman, supra note 19, at 250-51; Green, supra note 22, at 77; McMinn, supra note 14, at 1236.
209. See Green, supra note 22, at 77 & n.32. For example, the court in Galligan, looked to the municipality's representation statute to determine the existence of a conflict that would warrant disqualification. Galligan, 497 N.Y.S.2d at 187. But see England, 634 N.Y.S.2d at 960 (rejecting statutory approach and adopting focus on ethical considerations to conflicts).
210. See, e.g., Smith v. City of New York, 611 F. Supp. 1080, 1091 (S.D.N.Y. 1985) (finding that violations of a Model Code Canon is not enough for disqualification).
211. See, e.g., Clay v. Doherty, 608 F. Supp. 295, 303-04 (N.D. Ill. 1985) (finding that until an actual and unreasonable conflict exists choice of "counsel should not be disturbed"); Galligan, 497 N.Y.S.2d at 187 (stating that the New York statute does not require the court to determine the possibility of a conflict).
212. See Clay, 608 F. Supp. at 304 (reasoning that the court will yield to the bar's self-regulation); Green, supra note 22, at 74.
213. See supra note 197 and accompanying text.
214. See, e.g., Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 1982) (affirming trial court's determination that disqualification cannot be based on the possibility that co-defendants' positions may conflict).
215. Smith v. City of New York, 611 F. Supp. 1080, 1091 (S.D.N.Y. 1985) (discussing denial of disqualification motions unless the conduct of an attorney will "taint the underlying trial"); see Green, supra note 22, at 74-75 & n.15.
216. See Green, supra note 22, at 90. Professor Green argues that disqualification burdens the client rather than punishing the conduct of the lawyer. He proposes personal sanctions against the lawyer personally as the proper punishment for lawyers who violate conflict rules. Id. at 91-95; see McMinn, supra note 14, at 1249-50.
217. See supra note 188 and accompanying text.
218. See Model Rules, supra note 14, Rule 1.8(f)(2).
219. See id. Rule 1.8(f)(3) & cmt. 4.
220. See id. Rule 1.8(f)(2).
221. 709 F. Supp. 1219 (S.D.N.Y. 1989).
222. Id. at 1227-28.
223. Ricciuti v. New York City Transit Auth., 796 F. Supp. 84, 88 (S.D.N.Y. 1992).
224. Hafer v. Melo, 502 U.S. 21, 25 (1991); see supra part I.B.
225. See supra part I.B.
226. See supra part II.C.
227. See supra note 21 and accompanying text.
228. Coleman v. Smith, 814 F.2d 1142, 1147 (7th Cir. 1987); accord Gordon v. Norman, 788 F.2d 1194, 1198 (6th Cir. 1986).
229. See Gordon, 788 F.2d at 1198; Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir. 1984) (explaining that attorneys are officers of the court and should notify court of conflicts). Some courts have adopted a procedure whereby counsel notifies the court of the potential conflict. Johnson v. Board of County Comm'rs, 85 F.3d 489, 494 (10th Cir. 1996); Kounitz v. Slaatten, 901 F. Supp. 650, 659 (S.D.N.Y. 1995) (explicating test established in Dunton, 729 F.2d 903). The court then determines whether the individual defendant fully understands the conflict. Johnson, 85 F.3d at 494; Dunton, 729 F.2d at 908; Kounitz, 901 F. Supp. at 659. The individual defendant, then, is entitled to waive the conflict and choose joint representation. Johnson, 85 F.3d at 494; Dunton, 729 F.2d at 909 n.5; Kounitz, 901 F. Supp. at 659.
230. See Shadid v. Jackson, 521 F. Supp. 87 (E.D. Tex. 1981).
231. See id. at 89-90.
232. Id.
233. See, e.g., Gordon v. Norman, 788 F.2d 1194, 1199 n.5 (6th Cir. 1986) (noting that these representations are "a troublesome area" and that courts "should be aware of potential ethical violations and possible malpractice claims").
234. See Developments in the Law: Lawyers' Responsibilities and Lawyers' Responses, 107 Harv. L. Rev. 1547, 1597-605 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 829 (1992).
235. See Developments in the Law: Lawyers' Responsibilities and Lawyers' Responses, 107 Harv. L. Rev. 1547, 1597-605 (1994); David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 829 (1992).
236. N.J. Sup. Ct. Advisory Comm. on Professional Ethics, Op. 552 (1985).
237. Id.
238. Id.
239. In re Opinion 552 of Advisory Comm. on Professional Ethics, 507 A.2d 233 (N.J. 1986).
240. Id. at 235-36.
241. Id. at 239.
242. See Clay v. Doherty, 608 F. Supp. 295, 304 (N.D. Ill. 1985) (stating that until defendant's choice of counsel "gives rise to actual and unreasonable conflicts, [his] choice of counsel should not be disturbed").
243. See id. (stating that courts must assume that government attorneys adhere to ethical rules); Minneapolis Police Officers Fed'n v. City of Minneapolis, 488 N.W.2d 817, 821 (Minn. Ct. App. 1992) (same); Opinion 552, 507 A.2d at 239 (finding that attorney can best decide when joint representation is appropriate).
244. See supra note 21 and accompanying text.
245. See supra part II.
246. If the police officer is sued only in his official capacity, the possibility for conflicts to arise may be less substantial, and thus may not necessarily require separate representation.
247. See supra notes 93-101 and accompanying text.
248. See supra notes 116-20 and accompanying text.
249. See supra part II.C.
250. See supra notes 130-37 and accompanying text; Model Rules, supra note 14, Rule 1.9.
251. See supra part II.A.
252. See supra text accompanying note 121.
253. See supra part II.D. This proposal, however, raises the question of how to diminish the financial burden that conflict-free representation would impose on municipalities and police officers. One answer is to have a specific § 1983 litigation legal fund for police officers. The fund could be financed partly through moderate dues of the police officers, but largely by the municipality. The fund would be allotted a fixed annual budget that, of course, must be sizable enough to pay the full cost of litigation. Indemnification should be determined as early as possible during the litigation. Hopefully, the benefits gained by providing the police officer with separate representation would minimize the conflicts that would occur even if the police officer is faced with the uncertainty of whether he will receive full indemnification. With representation being provided to almost all police officers, regardless of the scope of their actions, it is important that the municipality get the opportunity to evaluate the officer's actions before committing the public's taxdollars.
254. See Green, supra note 22, at 88-89; supra note 223.
255. Dunton v. County of Suffolk, 729 F.2d 903, 908 n.4 (2d Cir. 1984).
256. See supra notes 200-05 and accompanying text.
257. See supra notes 130-36 and accompanying text.
258. See supra part I.B.
259. See supra notes 143-48 and accompanying text.
260. See Model Rules, supra note 14, Scope. The National Bar Association of Attorneys General tried unsuccessfully to persuade the American Bar Association to specify that several of the Model Rules, such as the conflicts of interest provisions, were inapplicable to government lawyers. Josephson & Pearce, supra note 180, at 557 n.86. This rejection highlights the legal community's fear that allowing government lawyers to disregard the traditional ethical approach will give them too much discretion.
261. Model Rules, supra note 14, Rule 1.2(a); Model Code, supra note 14, EC 7-7; see id. EC 7-8.
262. Shadid v. Jackson, 521 F. Supp. 87, 90 (E.D. Tex. 1981).