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Fordham Law Review Representing Police Officers and Municipalities 1997

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Fordham Law Review
May, 1997
Note

*2825 REPRESENTING POLICE OFFICERS AND MUNICIPALITIES: A CONFLICT OF INTEREST FOR A
MUNICIPAL ATTORNEY IN A § 1983 POLICE MISCONDUCT SUIT
Nicole G. Tell [FNa]
Copyright (c) 1997 Fordham Law Review; Nicole G. Tell
Introduction
In October 1996, in Bronx County, New York, police officer Francis X. Livoti was acquitted of criminally
negligent homicide. [FN1] Officer Livoti was involved in a confrontation with Anthony Baez that ensued after a
football Baez had been tossing hit Livoti's police car. [FN2] Officer Livoti placed Baez--who, according to Livoti,
was resisting arrest--in a chokehold that resulted in Baez's death on December 22, 1994. The ultimate decision in
the Livoti case sparked the public's already increasing distrust of police officers, and their strong belief that police
officers, fueled by too much power and prejudice, commonly violate citizens' constitutional rights. [FN3] Because
many believe that justice is not being served against police officers in criminal court, victims have increasingly
turned, instead, to the civil halls of justice. [FN4] The public, however, may not be aware of the government's
involvement in the civil process, where the municipality often provides representation for the police officer, and
may also pay for any settlement or judgment amounts levied against the officer.
For example, the Baez family has brought a $48 million wrongful death suit against the city of New York. [FN5]
In addition to a civil wrongful death suit, the Baez family also could bring a § 1983 [FN6] action against *2826
Officer Livoti, in both his individual and official capacities, as well as against the City of New York. Section 1983
provides a civil right of action for violations of constitutional rights by persons acting under color of state law.
[FN7] Under this statute, if the Baez family sued Livoti in his official capacity, the City would be liable if the Baez
family could prove that their son's constitutional rights were violated while Officer Livoti acted according to a
formal policy or custom of the municipality. The Baez family may also sue Officer Livoti in his individual capacity.
In such an action, the Baez family would avoid the requirement of showing a formal policy or informal custom, and
would merely need to prove that Livoti's actions deprived Anthony Baez of a constitutional right. [FN8] Officer
Livoti's defense to his own personal liability would be that he was acting in the scope of his duties as a police
officer, following the standard practice and procedure of such employment. This defense, if successful, would
shield Officer Livoti from personal liability and would shift responsibility to the City of New York. New York City,
as it has done in the Baez family's wrongful death action, would most likely argue that Officer Livoti was not acting
according to any policy or custom, but rather for his own purposes. [FN9]
Although blame-shifting between defendants is common in § 1983 litigation, [FN10] the same attorney often
defends both the police officer and the municipality in a § 1983 suit. [FN11] This dual representation, however,
appears to contravene the ethical rules on conflicts of interest. [FN12] These prohibitions against representing
clients with adverse, or even potentially adverse, interests have been at the core of every ethical code for lawyers
since the beginning of the Anglo-American judicial *2827 system. [FN13] Current ethical rules exist to guard
against dual representation, [FN14] because such representation may undermine a lawyer's duty of loyalty [FN15]--a
duty which encompasses all aspects of attorney-client relations, including duties of competence, [FN16]
confidentiality, [FN17] and zealous advocacy. [FN18]
Despite the importance placed on avoiding such conflicts, evidence suggests that municipal attorneys often
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overstep ethical boundaries in their joint representation of police officers and municipalities in police misconduct
cases. Attorney conflict of interest questions are among the most frequently litigated of all ethical cases, [FN19] and
have been the subject of much scholarly discussion in the past few years. [FN20] Nonetheless, few courts or
disciplinary bodies have questioned the conduct of municipal attorneys in this context.
This Note explores the conflicts that can arise when municipal attorneys attempt to represent both the police
officer and the municipality in § 1983 police misconduct cases. This Note argues that inherent conflicts of interest
should preclude a municipal attorney from representing both clients in the defense of a § 1983 action. This Note
further argues that the only way a police officer's interests can be effectively represented is when he obtains outside
counsel from the outset of the lawsuit. Although jurisdictions have been reluctant to adopt a per se rule against dual
representation in § 1983 conflict of interest situations,*2828 [FN21] this Note will demonstrate why separate
representation should be required from the beginning of the lawsuit. A per se rule will help overcome the
difficulties that courts face in deciding whether a conflict is substantial enough to disqualify an attorney, [FN22] and
will cure the lack of enforcement by courts and disciplinary bodies of conflict rules violations. [FN23] This solution
may also help ease the stress on the municipal attorney, who must continually struggle to guard her client's
confidences and protect their interests. [FN24]
By way of background, part I describes the basic structure of § 1983 police misconduct suits and highlights four
key differences between the nature of a § 1983 action against a police officer and a municipality. Part II applies the
attorney conflict rules to the representation of police officers and municipalities in § 1983 actions, and identifies
when during the representation the conflicts are most likely to occur. In response, part III examines how courts and
disciplinary bodies have addressed these conflicts, and finally, argues that a per se rule against municipal attorneys
representing police officers and municipalities in § 1983 actions is warranted to avoid conflicts of interest.
I. Local Government and Police Officer Liability Under Section 1983
Section 1983 [FN25] creates a civil cause of action against persons who violate federal constitutional or
statutory rights while acting under color of state law. Congress enacted § 1983 “to enforce provisions of the
Fourteenth Amendment against those who carry a badge of authority of a State [or local government] and represent
it in some capacity, whether they act in accordance with their authority or misuse it.” [FN26] Prior to 1978, the only
local governmental actors that could be sued under § 1983 were the individual police officers or employees of the
municipality. [FN27] In Monell v. Department of Social Services, [FN28] a *2829 turning point in § 1983
litigation, however, the Court extended liability by finding municipalities to be liable under § 1983. [FN29] Now
that both the municipality--the “deep pocket” defendant--and the police officer can be held liable for constitutional
deprivations, most suits for police misconduct include claims against the municipality. Many differences exist,
however, between § 1983 actions against municipalities and police officers. This section identifies the four major
differences between these representations: 1) theories of liability; 2) available defenses; 3) damages; and 4) degree
of control over both the nature of the representation and indemnification as to expenses and damages. As revealed
later in this Note, [FN30] these differences present conflict problems for the representing attorney throughout the
litigation.
A. Police Officers and Municipalities Are Held Liable Under Different Theories
The nature of the liability in a § 1983 action for the two defendants--the police officer and the municipality--are
quite distinct. Police officers are found liable when, while acting under color of state law, their actions violate a
person's constitutional rights. Municipalities, on the other hand, may be liable under § 1983, when the police
officer's actions are found to follow an official policy or practice of the municipality.
1. Police Officers' Liability
Under § 1983, courts may hold police officers liable for constitutional violations when their actions are an abuse
of their official position. Thus, if an officer, in the course of his duties “under color of [state law],” engages in
activity which causes a deprivation of a constitutional right, the officer may be subject to suit under § 1983. [FN31]
When police officers are acting “under color of [law],” [FN32] they are directly liable both as police officers and
individual persons because their actions violated the plaintiffs' constitutional rights. Therefore, plaintiffs may seek
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to bring suit against the officer in both his official, as well as his individual capacity. [FN33] There is, however, an
important *2830 difference between bringing a § 1983 action against a police officer in his individual capacity and
bringing one in his official capacity. Indeed, an official capacity suit is “only another way of pleading an action
against an entity” and is considered a suit against the municipality. [FN34] As long as the government entity
receives notice, an official capacity suit is in all respects but its name a suit against the entity. [FN35]
2. Municipalities' Liability
Although municipalities can be held liable under § 1983 for the actions of their employees or agents, this
liability is not based on a respondeat superior theory; in fact, municipalities cannot be held liable under a theory of
respondeat superior. [FN36] Municipalities may be liable only when the police officer's actions are based on
policies or customs of the entity. [FN37] In addition, liability may be imposed on municipalities when the alleged
conduct follows from a formally adopted policy or regulation, or when the practice constitutes an informal custom
or usage. [FN38]
A § 1983 plaintiff may establish a municipality's liability under the “custom or usage” prong of Monell by
demonstrating that the policymaking officials have actual or constructive knowledge of, and acquiesce to, the
unconstitutional custom or practice. [FN39] A municipality *2831 also may be liable, in more limited situations, for
failure to train its employees when such failure indicates a “deliberate indifference” to the rights of its citizens.
[FN40] In the context of an excessive force claim, a failure to train theory might be established if a plaintiff could
show that the city failed to instruct police officers on the constitutional limitations on the use of deadly force.
[FN41]
B. Police Officers and Municipalities Have Different Defenses Available
Police officers and municipalities may be subject to civil liability under § 1983 based on dissimilar theories of
liability, and thus, have different defenses available to them. The most notable difference is the availability of the
qualified immunity defense to police officers, but not to municipalities.
1. Police Officer's Defenses
Currently, police officers are afforded a qualified immunity defense in their individual capacity. [FN42] This
qualified immunity is often referred to as a “good faith” defense because police officers may assert the defense if
they can show that they acted in compliance with the law as they knew it at the time. [FN43] In Anderson v.
Creighton, [FN44] the Court held that plaintiffs can defeat a police officer's claim of qualified immunity only when
they can allege particular facts that show an established right, such that it is “sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” [FN45] *2832 With this frequently-employed
defense, police officers can partially or completely avoid personal liability--liability in their individual capacity--by
proving that the act was done in good faith and pursuant to official policy. [FN46]
Additionally, a police officer has two different defenses available when the suit is brought against the police
officer in both his individual and official capacities. Because an official capacity suit is technically a suit against the
municipality, [FN47] a suit naming the police officer in both capacities is “treated as the transactions of two
different legal personages.” [FN48] Therefore, the police officer is regarded as two different people--the
municipality and himself individually--with two different defenses, both requiring adequate representation. When
the police officer is sued in his official capacity and is legally treated as the municipality, [FN49] “the only
immunities available to the defendant . . . are those that the governmental entity possesses.” [FN50]
2. Municipalities' Defenses
The municipality, unlike the officer, cannot assert a qualified immunity defense based on the good faith of its
officials. In Owen v. City of Independence, [FN51] the Supreme Court held that “many victims of municipal
malfeasance would be left remediless if the city were also allowed to assert a good-faith defense.” [FN52] In
disallowing the good faith rationale, the Court held that municipalities cannot assert a qualified immunity defense in
§ 1983 actions. Hence, a municipality can avoid liability only by claiming that no constitutional violation occurred
or by shifting legal responsibility to the police officer by claiming that the police officer did not act with good faith,
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i.e., pursuant to a policy, practice, or custom of the municipality. [FN53]
*2833 C. Police Officers and Municipalities Are Liable for Different Types of Damages
These co-defendants--the police officer and the municipality--may also be found liable for different types of
damages. The most important difference between their damages is that the police officer, unlike the municipality,
can be held liable for punitive damages.
1. Police Officers' Potential Damages
When a plaintiff sues a police officer in his individual capacity, the officer may be liable for both compensatory
and punitive damages, the latter being available only if the plaintiff shows that the defendant acted recklessly or with
wanton indifference. [FN54] Notwithstanding a finding that the police officer is not liable for compensatory
damages, the fact-finder may still impose punitive damages on the police officer in his individual capacity, if the
jury believes that he acted willfully or with reckless indifference. [FN55] The Supreme Court also has held that the
liable defendant in § 1983 suits should pay the prevailing plaintiff's attorney's fees absent unusual circumstances
that would render such payment unjust. [FN56]
2. Municipalities' Potential Damages
Even if the police officer successfully asserts his qualified immunity defense, a municipality may be found liable
for the constitutional violation and may be required to pay both compensatory damages and plaintiff's attorney fees.
[FN57] While punitive damages may be imposed on the individual police officer, the Supreme Court has found that
it would be against public policy to impose punitive damages against municipalities. [FN58] Thus, the codefendants' needs diverge significantly when they are exposed to relatively disproportionate liability. [FN59]
D. The Degree of Control over the Nature of the Representation and Indemnification as to Expenses and Damages
Are Different
Even though the police officer and the municipality are co-defendants, and, therefore, co-clients of the municipal
attorney, the municipality often has primary control over the scope of the representation, *2834 as well as the
degree, if any, of indemnification provided to the officer. In considering these matters, municipal attorneys are often
guided by municipal statutes that allow or require the municipality to represent and indemnify police officers.
1. Municipalities Decide Whether to Provide Representation for the Police Officer
Most municipalities are mandated by statute to provide counsel for their employees, including police officers, in
civil actions arising out of their employment. [FN60] Many municipal statutes specify that the municipality will
provide representation only for employees acting within the scope of their employment. [FN61] For the purposes of
the municipality's statutory duty to defend a police officer, an officer is acting within the scope of his employment
“when he is engaged in work he was employed to perform or when the act is an incident to his duty and was
performed for the benefit of his employer and not to serve his own purposes or convenience[s].” [FN62] The
question of whether an officer's actions are within the scope, however, must be measured objectively without regard
to his malicious or evil intent. [FN63] A police officer is usually deemed to be acting within the scope of
employment when the officer acts with the express or implied powers of his public duties, [FN64] even if he used
improper methods to carry out his official duties. [FN65] This determination turns not on the specific conduct in
question, but rather on whether the conduct is a foreseeable consequence of the officer's duties. [FN66]
*2835 Larger municipalities, such as New York City, are often more strict when deciding whether to represent a
police officer, [FN67] and, therefore, have additional requirements in their representation statutes. [FN68]
Furthermore, some large municipalities have formalized procedures to determine whether the police officer is
eligible for representation by the municipal attorney. [FN69] Smaller municipalities often do not have such
procedures, which frequently leads to conflicts problems later in the representation. [FN70] Even with so-called
“formal” office policies, however, unforeseen conflicts may nonetheless arise [FN71] because most municipalities
do not have written guidelines on how to make the determination. [FN72]

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*2836 2. Municipalities Decide Whether to Indemnify the Police Officer
In addition to representing police officers, municipalities will often indemnify officers who are found personally
liable under § 1983. Indemnification statutes typically require that the officer's actions be within the scope of
employment. [FN73] Furthermore, even though the municipality initially must have determined for the purpose of
providing representation that the officer was acting within the scope of employment, the municipality usually makes
an independent assessment subsequent to the litigation for the purposes of determining whether the officer will be
indemnified. [FN74]
Municipalities have varying standards for affording indemnification to police officers sued in their individual
and official capacities. For example, New York City makes clear “that representation does not automatically lead to
indemnification.” [FN75] Many municipalities will defend a police officer only after he signs a letter which allows
a municipality to defend the officer, but reserves the indemnification decision until an internal fact-finding process
determines that he acted within the scope of employment. [FN76]
Indemnification statutes usually indemnify police officers against expenses, compensatory damages, or
settlement amounts. [FN77] But unlike municipalities, police officers liable in their individual capacity may also
have punitive damages imposed against them. [FN78] Police officers' fears of personal liability have resulted in low
morale, [FN79] and have prompted numerous municipalities to also indemnify for punitive damages levied against
them in their individual capacity. [FN80] Municipalities*2837 lacking direct statutory authority to indemnify for
punitive damages may nevertheless have the discretion, after the fact, to indemnify for such damages. [FN81] But it
is often difficult to determine in advance whether the municipality will indemnify for punitive damages, or limit
indemnification to compensatory damages.
II. Applying the Conflicts Rules to the Representation of Police Officers and Municipalities in Section 1983 Suits
The differences between § 1983 suits against police officers and municipalities explained above may result in
conflicts of interest for municipal attorneys who attempt to jointly represent both defendants. This part highlights
potential ethical conflicts implicated in the context of joint representation, and reveals how the ethics rules are often
too vague to be applied with any uniformity, and how municipal attorneys often fail to adhere to current ethics rules.
In addition, this part demonstrates that the municipalities' representation statutes provide little or no guidance to a
municipal attorney facing a conflict. Moreover, most municipalities lack written office procedures on how to
proceed in conflict situations.
The four principle conflicts for a municipal attorney are: (1) protecting the police officer's communications
during the initial screening interview between the police officer and the attorney; (2) jointly representing the
municipality and the police officer after determining, at the initial interview, that the officer may have acted outside
the scope of his employment; (3) continuing the municipality's representation after the realization by the attorney,
during the joint representation, that the officer may have acted outside the scope of his employment; and (4)
handling issues of settlement, indemnification, and appeal during the joint representation of the municipality and the
police officer.
A. Protecting the Police Officer's Communications During the Initial Screening Interview
In most jurisdictions, the municipal attorney is counsel to the municipal defendant in § 1983 suits against the
municipality. In addition, most municipal statutes specify that the municipality will defend the police officer if he
acted within the scope of his employment during the conduct in question. [FN82] Accordingly, it is essential that
the municipal attorney first determine whether the officer acted within the scope, and hence, whether the municipal
attorney will provide representation*2838 for the police officer along with the municipality. The municipal
attorney often decides this by reviewing the police department's investigatory reports and conducting a screening
interview with the police officer. [FN83]
A potential conflict for the municipal attorney may arise during the initial screening interview when the police
officer may share important information which may not necessarily be held in confidence. This situation violates
Model Rule 1.6, which provides that a lawyer cannot reveal information about her client's representation to anyone,
except as necessary for authorized actions in carrying out such representation. [FN84] Accordingly, at this stage,
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the primary concern is determining if, and when, an attorney-client relationship is created, which would dictate
whether the lawyer owes the police officer a duty of confidentiality with regard to any information exchanged at the
interview.
“[N]o specific formalities are required to create an attorney-client relationship,” such as a fee agreement, a
written letter of acceptance, or even a handshake. [FN85] Frequently when clients meet with lawyers to discuss
their legal problems and seek or obtain advice, an attorney-client relationship may form. [FN86] Indeed, the
American Bar Association (“ABA”) has found that unless a “lawyer takes adequate measures to limit the
information initially imparted by the would-be client,” Rule 1.6 is applicable to information provided by a
prospective client, even if the lawyer does not eventually undertake this representation. [FN87] The ABA and many
courts take a “functional” approach to determining whether an attorney-client relationship exists in screening
interviews or initial consultations. [FN88] It is important to look at what the prospective client reasonably believed
the relationship between himself and *2839 the lawyer to be when he disclosed communications. [FN89] The
lawyer can properly guard against this imposition of an attorney-client relationship, however, by clearly explaining
to the prospective client that communications may not be held in confidence, or by obtaining a waiver of
confidentiality from the prospective client. [FN90]
In addition, Model Rule 1.13, guiding the conduct of organizational attorneys, alters the requirements of Rule
1.6. [FN91] It provides that when organizational attorneys conduct interviews to investigate wrongdoing, Rule 1.6
protects the employee's confidences from being revealed to third parties only, but not from the entity client. [FN92]
Therefore, the municipal attorney may be permitted to reveal the officer's communications to the municipality, as
long as this process is clearly and fully explained to the officer in advance.
The problem, however, is that without formal policies to guide them, municipal attorneys are not uniformly
trained to fully explain their role during the screening interview. For example, even in New York City, where the
corporation counsel “Mirandizes” the police officer during the screening interview, [FN93] the attorneys are not told
that they have to explain to the police officer exactly what those conflicts might be. [FN94] Additionally, there is no
standard procedure that municipal attorneys are required to follow in order to explain the structure of § 1983 suits
and joint representation. [FN95] For this reason, an officer *2840 may be unsure about the true purpose of the
initial screening interview, and unaware of the attorney's duty of confidentiality, or lack thereof, during the
screening interview. Moreover, some municipalities, New York City for example, obtain the police officer's waiver
of Rule 1.6's duty of confidentiality. [FN96] This waiver permits an attorney to turn over information gathered
during the initial interview, and during the defense of the police officer, to third parties, such as the District
Attorney's office or other appropriate enforcement agencies. [FN97] This waiver is very “controversial” [FN98]
because it is difficult to determine whether the police officer's consent to the waiver is fully informed and not
coerced. [FN99]
More importantly, municipal attorneys who provide no explanation of their role create an implied attorney-client
relationship, [FN100] because the officer could reasonably believe that an attorney-client relationship exists.
Therefore, any subsequent conduct of the attorney must follow the rules of formal attorney-client relationships.
Often, when the police officer walks into the municipal attorney's office, he already thinks that she is his attorney.
[FN101] If the police officer believes that he is meeting with his personal lawyer, then it becomes extremely
problematic when municipal attorneys fail to explain their role as mere screening agents.
The power that most municipal representation statutes vest in municipal attorneys creates an additional conflict.
The initial determination of whether the officer's actions were within the scope of his employment, so as to qualify
him for representation, is within the municipal attorney's discretion. [FN102] Because the municipality may not be
obligated to provide for the police officer's defense if the officer was acting outside the scope of his employment, the
municipal attorney *2841 may be pressured to closely scrutinize the police officer's conduct. [FN103] The
municipality has an interest in preserving limited public funds and labor, and the possibility exists that pressure from
her superiors may influence the municipal attorney's finding as to the officer's actions. [FN104] Therefore, a
municipal attorney may be inclined to deem any questionable conduct by the police officer to be outside the scope of
his employment, thus leaving the police officer to pay for his own representation. [FN105]
B. Jointly Representing the Municipality and the Police Officer After Initially Determining that the Police Officer
May Have Acted Outside the Scope of Employment
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If the municipal attorney determines, after the initial interview, that the police officer may have been acting
outside the scope of his employment, the co-defendant's defenses will diverge. If the municipality argues that the
police officer was not acting within the scope of his employment, it may escape liability and shift responsibility to
the police officer in his individual capacity. In contrast, the officer, to avoid liability in his individual capacity, will
always argue that his actions were in fact done pursuant to an official policy or custom--thus shifting legal
responsibility to the municipality.
The above example presents multiple ethical conflicts. The ethical rules prohibit a lawyer from simultaneously
representing two or more clients when the interests of one may be in conflict with another. [FN106] Except for a
few limited exceptions, Model Rule 1.7(a) bars a lawyer from representing a client whose interests are “directly
adverse” to *2842 another client. [FN107] Comments to the Model Rules suggest that subsection (a) would apply
only to the representation of opposing parties in litigation. [FN108] The comments do recognize, however, that
“impermissible conflict” may arise in other situations if there is a “substantial discrepancy in the parties' testimony,
incompatibility in positions in relation to an opposing party or the fact that there are substantially different
possibilities of settlement . . . or liabilities in question.” [FN109] Model Rule 1.7(a), however, allows an attorney to
jointly represent multiple clients if two prerequisites are met: fully informed consent by both parties to the
representation, [FN110] and the lawyer's reasonable belief that this representation will not adversely affect the
relationship with the other client. [FN111]
When municipal attorneys jointly represent both a municipality and a police officer, who may have acted outside
the scope of his employment, they violate the ethics rules. [FN112] An ethical violation occurs because a direct
conflict exists between the co-defendant's defenses, and Rule 1.7(a) would prevent such simultaneous
representation. [FN113] Due to outside pressures, it seems unlikely that there could be any meaningful waiver of
the conflicts by the clients in this situation. [FN114] In addition, even if the clients could waive the conflicts, no
attorney could *2843 reasonably believe that the representation of the municipality would not adversely affect the
police officer's representation. [FN115]
Meaningful waiver, by either the police officer or the municipality, would be unlikely for a number of reasons.
First, a municipal attorney and a police officer may be pressured to agree to the joint representation in order to meet
the waiver requirements of Rule 1.7(a). Also, a police officer may waive a conflict because the municipal attorney
has not adequately explained the conflicts to the officer. [FN116] In addition, the police officer may not be able to
afford separate representation. [FN117] Therefore, a police officer may be inclined to waive the conflict due both to
lack of resources and a failure to comprehend the consequences of joint representation.
Even if the police officer waives the conflict, it is also necessary to secure consent of the municipal-client.
Often, however, it is not clear who is authorized to consent to such a waiver on the municipality's behalf. [FN118]
Often the municipal attorney herself or her supervisor determines whether the municipality's consent is warranted in
a particular situation. Accordingly, the two requirements of Rule 1.7(a)--consent of both parties and the attorney's
determination that neither client's representation will be adversely affected--collapse into one requirement. The
vagueness of the Model Rule places too much power in the hands of the municipal attorney, who may feel pressure
to maintain joint representation. [FN119] Additional pressure exists in municipalities like New York City--where
lawsuits are often brought against the Corporation Counsel by an officer the city has refused to represent--because it
believes he acted outside the scope of his employment. [FN120] Finally, the municipality also may consent to joint
representation*2844 because it would likely help the municipality prove that the police officer was not acting
within the scope of employment. [FN121]
Even if the municipal attorney does not attempt to jointly represent the police officer and the municipality, the
mere determination that the officer may have acted outside the scope of his employment creates policy concerns.
First, in municipalities statutorily required to provide representation for the police officer, [FN122] this
determination may have more than just a financial effect on the police officer who must then find his own
representation. Separate representation may also prejudice the judge and jury against the police officer: they may
assume that he is not represented by municipal counsel because there is a concern that his actions were not made in
good faith and within the scope of his employment. As this Note will demonstrate, due to these concerns, it is better
for the police officer to be provided with separate representation from the initiation of the suit.

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C. Continuing the Municipality's Representation After Realizing, During the Joint Representation, That the Police
Officer May Have Acted Outside the Scope of Employment
If the municipal attorney believes that the officer's actions were within the scope of his employment, she will
usually agree to simultaneously represent both the police officer and the municipality. [FN123] It is possible,
however, that as the simultaneous representation unfolds, *2845 the municipal attorney will discover information
indicating that the officer was not acting, in fact, within the scope of his employment. [FN124] At this point, the
municipality's best interests will be served by abandoning the officer and arguing that the officer was not acting in
good faith. [FN125]
This abandonment is effectuated when the police officer's municipal attorney “cuts him loose,” thus requiring
the police officer to retain separate counsel. [FN126] The process of “cutting loose” the police officer during the
joint representation creates a conflict for the municipal attorney who then continues to represent the municipal client
once she has been privy to the police officer's communications. [FN127] This creates a different conflict than the
one discussed earlier in which the municipal attorney continues to represent the municipality after the initial
screening interview with the police officer. [FN128] At this stage in the representation, the police officer has
obviously become the municipal attorney's client and different ethical rules are applicable. [FN129]
The conflict of interest ethics rules do not only prohibit the representation of a person whose interests are
adverse to a present client, but also prohibit such representation when the interests are adverse to a former client's
interests. [FN130] Model Rule 1.9(a) bars lawyers from representing a client in the “same or a substantially related
matter” to that in which they had represented a former client, if the present client's interests are “materially adverse”
to the former client's interests. [FN131] Such “successive representation” is permissible only with the *2846 former
client's consent. [FN132] This rule attempts to guard the lawyer's duty of confidentiality to clients, a duty that is
essential to both a lawyer's duty of loyalty, and to the lawyer-client relationship in general. [FN133]
Although Rule 1.9(a) prohibits the attorney from representing the municipality without the former client's
consent, [FN134] some municipal attorneys continue representing the entity without the consent of the police
officer. [FN135] The municipal attorney cannot assume that the police officer's consent to the original joint
representation is sufficient consent to the subsequent representation of the municipality. [FN136] This procedure
would appear to directly violate the ethics rules on successive representation.
The municipal attorney's representation of the municipal client violates Rule 1.9 because such representation
cannot pass the “substantial relationship” test that courts use to determine whether an attorney's disqualification is
warranted in a successive representation conflict. [FN137] Courts will look closely at the two matters involving the
lawyer and the former client to determine whether there is a substantial relationship between the issues, rather than
just between the general subject matter. [FN138] In this situation, the underlying action still involves the same
issues as the representation of the police officer. In addition, the test is based on an irrebuttable presumption that the
attorney received information from the former client. [FN139] The police officer confided in the attorney and these
confidences could be used *2847 against the police officer in the municipality's defense of the § 1983 action.
Additionally, a municipal law office that transfers the municipality's representation, at this stage, to another
municipal attorney in its office [FN140] does not cure the ethical conflict under Rule 1.9. Rule 1.10(a), as discussed
above, [FN141] would vicariously disqualify all municipal lawyers from such representation once one lawyer in the
firm is prohibited from the representation. [FN142]
Recently, however, due to an increased acceptance of screening mechanisms, courts are more willing to tolerate
representation of the present client by another attorney in the firm so long as it is not the former client's counsel.
[FN143] Courts will allow an attorney to rebut the presumption of shared confidences between herself and the
former client, as well as between herself and the former client's attorney. [FN144] In order to prevent confidential
information from being shared, lawyers often construct screening mechanisms between the two attorneys involved
in the litigation. These institutional screening mechanisms seek to prevent the “tainted” attorney from interacting
with the newly assigned attorney. [FN145] The mechanisms used may be one or more of the following: structural,
such as separating attorneys either physically or departmentally; [FN146] procedural, such as restricting access to
files; [FN147] or educational, such as providing programs for lawyers to explain what information can be discussed
and how to respect the screening procedures. [FN148]

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With effective screening mechanisms in place, it can be argued that vicarious disqualification, in former client
conflict contexts, should not apply to large, highly structured law-offices because they will be better *2848 able to
protect a former client's confidences. [FN149] In large cities, many government offices are structured in the same
departmentalized manner as large corporate law firms. [FN150] The New York City Corporation Counsel, for
example, is a large government law office consisting of numerous divisions. [FN151] When the lawyer in the
General Litigation Division decides that a conflict exists between the city and the police officer, the representation
of the city will be transferred to an attorney in their Torts Division or another division. [FN152] The city has put
into place certain screening mechanisms between these two lawyers, such as forbidding the lawyers from discussing
the case. [FN153]
Screening mechanisms, however, may not be as effective in government law offices--even large ones--as they
can be in complex private law firms. First, screening mechanisms may be difficult to construct in government
offices where lawyers often have shared support staff, filing cabinets, and computer files. [FN154] Additionally, in
contrast to the private sector, government lawyers are not subject to, and thus will not be deterred by, pecuniary
measures such as prohibiting the screened attorney from benefitting economically from the representation. [FN155]
Moreover, the cost of implementing proper screening mechanisms may outweigh the cost of retaining outside
counsel. [FN156] A final thing to consider, in any law office contemplating the use of screening mechanisms, is
their inability to protect against intentional disclosures. [FN157]
In response to charges that government offices' screening mechanisms are ineffective, it can be argued that
vicarious disqualification should not even be required of government attorneys. This argument rests on the premise
that government attorneys, as advocates for the public interest, already have the necessary ethical checks on their
conduct*2849 to protect a former client's confidences. [FN158] For instance, public lawyers do not have the same
personal financial incentive that private lawyers have in their cases. [FN159] Furthermore, there is a notion that
government lawyers seek justice above all else, [FN160] and have less of an incentive, as compared to private
lawyers, to reveal client confidences or favor one client over another.
If we take the present ethical rules literally, however, government attorneys are not, and should not, be exempt
from the ethics rules' vicarious disqualification provisions. Therefore, without effective screening mechanisms--that
are difficult and expensive to construct in government offices--a municipal attorney cannot continue to represent the
municipality after withdrawing from the police officer's representation.
D. Handling Issues of Settlement, Indemnification, and Appeal During the Joint Representation of the Municipality
and the Police Officer
In cases where the police officer is found to have acted within the scope of his employment, municipal attorneys
who undertake the joint representation often do not seem cognizant of the continuing difficulties that arise with the
sensitive issues of settlement, judgment, indemnification, and appeal. Each of these concerns invokes the attorney's
duty, under Rule 1.7(b), to reasonably determine whether her representation of the police officer will be “materially
limited” by her responsibilities to the municipality. [FN161] As this Note demonstrates, municipal attorneys often
do not adhere to this requirement.
*2850 Model Rule 1.7(b) applies to simultaneous representation of parties--either co-parties or two clients
involved in a similar matter--whose interests may conflict. [FN162] Therefore, Rule 1.7(b) applies even to
situations in which there is a potential, rather than a direct conflict as Rule 1.7(a). In Rule 1.7(b) situations, the
lawyer can undertake the representation only if the client consents after consultation [FN163] and the lawyer
“reasonably believes” that the representation will not be affected. [FN164] Because Rule 1.7(b) encompasses more
questionable conflict situations than Rule 1.7(a), it “forces a case-specific inquiry into the precise effect that a
particular combination of conflicting responsibilities might engender.” [FN165]
As shown earlier, because of the differences between § 1983 actions against municipalities and actions against
police officers, the co-defendants will have different needs and interests with regard to their liability, [FN166]
defenses, [FN167] potential damages, [FN168] and decisions to represent [FN169] and indemnify. [FN170] The
municipality is often ultimately responsible for the representation of the police officer, and possibly his settlement or
judgments. [FN171] In addition, the municipality must consider the expenditure of public funds on a lengthy
litigation. [FN172] For *2851 these reasons, the municipal client may want to settle quickly, and hopefully cheaply,
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to avoid a long and costly trial. The municipal attorney, likewise, may be concerned over the use of taxpayers'
money to fight an expensive litigation that may result in the imposition of significant damages against the
municipality. Also, the municipality may worry that a trial would bring negative publicity to the municipality and
the entire police department. These reasons may cause the attorney to pressure the police officer to agree to settle
rather than continue the litigation.
The police officer, in contrast, may have a greater concern for clearing his name of any wrongdoing and fighting
the suit to the end; to him a settlement may constitute a personal admission of wrongdoing. The police officer must
contend with the fear of punitive damages being imposed against him in his individual capacity, [FN173] and the
fear that the municipality will not indemnify him for such damages. [FN174] A police officer facing the possibility
of compensatory and punitive damages may want to obtain his own private lawyer, although some municipalities
will not indemnify officers who seek their own counsel. [FN175] The issue of indemnification may also affect each
defendant's interests in settlement negotiations. During settlement negotiations, the attorney discusses settlement
amounts with both clients, but most municipalities allow the municipal client the final say in a settlement agreement.
[FN176] In New York City, for example, the statute that provides representation for the police officer requires the
city comptroller to approve the amount of any settlement. [FN177] Although this policy attempts to promote a
client-centered approach to litigation, it fails the ethics rules' proscription on client-driven representation. [FN178]
It also *2852 underscores how the police officer's representation might be “materially limited,” thus violating Rule
1.7(b). [FN179]
The defendants' often divergent concerns also surface when deciding whether to appeal an unfavorable decision.
If the police officer and the municipality are found liable at the end of litigation, the officer may want to file an
appeal in order to fight his liability to the very end. Depending on the specific facts, the municipality may not want
to spend additional public funds on an appeal. Because the officer's case is one of many that the municipality must
defend, it may prefer to save limited funds to fight other, more important cases. [FN180] In New York City, for
example, the Chief of Appeals Division at the Corporation Counsel, while considering the police officer's wishes,
ultimately decides the issue of appeal. [FN181]
Model Rule 1.8(f) forbids a lawyer from accepting third-party compensation for representation, unless such
party does not interfere in the attorney-client relationship and the lawyer's independent judgment. [FN182] Hence,
when the municipal client's interests are allowed to predominate in the joint representation, and the attorney's ability
to zealously advocate for one of her clients is affected--simply because the municipality is paying--the ethics rules
are violated. [FN183] In this situation, the municipal attorney's representation of the police officer is affected so
greatly by the municipality's funding of the representation that the attorney should withdraw from the joint
representation.
Additionally, it is difficult to prevent an attorney representing co-defendants from using the shared confidences
of one client against that client in the defense of the other client. [FN184] Therefore, adherence to Rule 1.6's
protection of client confidences is immeasurably important to a lawyer who is simultaneously representing two
clients on a similar matter. [FN185] A lawyer must also remember that they must adhere to the strict confidentiality
requirements of Rule 1.6 when a third *2853 person is paying for the client's representation. [FN186] A person who
provides compensation for another's representation does not gain the status of a client and cannot become privy to
information related to the representation. Even though the municipality is also a party to a § 1983 action, the
municipal attorney must still adhere to Rule 1.6 and protect the police officer's communications from all others,
including other clients. The municipal attorney faces a struggle in attempting to both protect these co-defendant's
communications and advocate zealously for each of her clients; an almost impossible task for any attorney in such a
situation.
The municipality's indemnification of the police officer in § 1983 suits also seemingly presents conflict of
interest problems for a municipal attorney jointly representing the police officer and the municipality. Practice
reveals, however, that the municipal attorney sets aside the issue of indemnification until after the litigation has
terminated and tends to discount it as only a potential conflict during the litigation. [FN187] Many municipal
attorneys assert, and courts have agreed, [FN188] that as long as both defendants claim the same affirmative
defense--that the officer was acting in the scope of his employment--and the municipality agrees to indemnify the
police officer, that a presumed alignment of interests precludes an actual conflict. [FN189] These, however, are not
adequate safeguards in light of the differences that may arise between the police officer's and the municipality's
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needs, as well as the potential divided loyalties of the municipal attorney. [FN190] For instance, some
municipalities determine whether to indemnify the police officer at the end of the litigation, and the decision to
represent does not necessarily lead to indemnification. [FN191] Therefore, these municipalities cannot guarantee
protection from conflicts. Furthermore, municipalities may extend indemnification as a virtual certainty to a police
officer, in order to obtain his consent to a settlement or even to waive conflicts that may arise. The uncertainty of
indemnification is *2854 exacerbated by the fact that only the police officer is susceptible to punitive damages, and
that it is often less clear whether a municipality will indemnify these damages. [FN192] Municipal attorneys and
police officers may be willing to ignore any conflicts that arise because they believe, however erroneously, that there
is only a small chance that the police officer will be held personally liable so long as both defendants claim the same
affirmative defense. [FN193]
As this section demonstrates, problems arise even if a municipality argues that the police officer acted within the
scope of his employment, and says it will provide indemnification for any damages. Municipal attorneys, however,
do not view these important issues as actual conflicts of interest during the joint representation, and consequently
continue the joint representation without the close scrutiny that these issues warrant. Moreover, in municipalities
where outside representation is provided to police officers in certain conflict situations, the municipal attorney may
be pressured to retain the representation in-house to keep costs to a minimum. Therefore, she may be willing to
close her eyes to situations of differing interests and needs.
To summarize this part, four main conflicts of interest arise for municipal attorneys representing police officers
and municipalities in § 1983 suits. First, the lawyer's duty to explain her role and the conflicts that may arise, as
well as Rule 1.6's duty of confidentiality, are critical at the initial consulation phase. Second, municipal attorneys
risk violating Rule 1.7(a)'s prohibition against simultaneous representation when they jointly represent municipal
clients and police officers who may have acted outside the scope of their employment. Third, municipal attorneys-whether the original screening attorney or not--violate Rule 1.9's prohibition against representing clients whose
interests are adverse to a former client's interests when they continue to represent the municipality after withdrawing
from the police officer's representation. And finally, looking at the totality of the conflicts that can occur-particularly in regard to settlement, judgment, indemnfication, and appeal--municipal attorneys likely violate Rule
*2855 1.7(b)'s prohibition against representing clients whose representation may be affected by outside factors. The
next part will discuss institutional responses to these conflicts.
III. Attempts to Reconcile the Conflicts of Interest in the Joint Representation of Police Officers and Municipalities
in Section 1983 Suits
Few courts or ethics committees have addressed the conflicts of interest discussed in part II. This part describes
the limited role that courts and ethics committees have taken in the conflicts of interest debate. In response to this
lack of attention, this part also proposes a new approach to the representation of police officers and municipalities in
§ 1983 actions.
A. Courts' and Ethics Committees' Responses to the Joint Representation of Police Officers and Municipalities
In the context of § 1983 joint representation actions involving municipal attorneys, courts usually enter the
picture when a disqualification motion is brought against the attorney who is representing the police officer and the
municipality. [FN194] In addition to suits brought by the oppposing party, the police officer himself sometimes
moves for disqualification when he wishes to retain separate representation paid for by the municipality. [FN195]
Courts may also review a police officer's request to reverse a judgment against him based on his claim that he did
not receive adequate representation. [FN196]
A court's decision to grant or deny a disqualification motion, however, does not necessarily indicate whether an
attorney has committed an ethical violation. This may be because courts vary in their treatment of the conflict rules
in determining whether a lawyer should be disqualified. [FN197] Some courts rely exclusively on the ABA ethical
rules, while others reject that approach and instead look to the spirit of the rules in light of the circumstances of a
particular case. [FN198] Consequently,*2856 a court's dismissal of a disqualification motion does not necessarily
clear the attorney of a violation of the ethics conflict rules. [FN199]
Moreover, most courts have been reluctant to disturb the police officer's choice of counsel without an actual,
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present conflict of interest. [FN200] In part, this is because many courts do not wish to serve as disciplinarians for
members of the bar. [FN201] Also, as explained above, not every court employs the ABA ethics rules in
determining disqualification motions, and therefore, their definition of an ethical conflict of interest may be different
than the Model Rules' definition. [FN202] Accordingly, courts faced with a disqualification motion in a § 1983 suit
have found that an actual conflict of interest exists only when the co-defendants' defenses are in direct conflict.
[FN203] Additionally, courts are hesitant to disqualify an attorney in the event of a mere potential conflict of
interest because courts are often of the view that disqualification serves a remedial function and should only be
employed to avert actual harm to the client or the court. [FN204] Courts also may be unwilling to disqualify
attorneys because the conflict may be outweighed by the heavy burden disqualification places on the court and the
litigants. [FN205]
No court has specifically addressed the conflicts that can arise as a result of the differing interests between the
police officer and the municipality with regard to settlement, punitive damages, indemnification, and appeal. Many
courts have held that as long as a municipality agrees to indemnify the officer and continues to contend that the
officer acted in his official capacity, no conflicting interests exist and joint representation is permissible. [FN206]
This view, however, contradicts the ethical rules that prohibit a fee arrangement by a third party to influence the
lawyer's professional judgment, [FN207] or affect his adherence to the conflicts rules [FN208] and the attorneyclient relationship. [FN209]
*2857 Courts' analyses of these conflicts are even more unsettling because they tend to confuse the meaning of
“official capacity” suits and the police officer's defense that he was acting “within the scope of his official duties.”
Two cases in the Southern District of New York exemplify this problem. In Katz v. Morgenthau, [FN210] for
example, the court correctly found that a conflict of interest will not exist if the police officer is only sued in his
official capacity because, in this situation, he will not be held personally liable. [FN211] A few years later, another
court disagreed with the Katz court's logic and found that a potential conflict exists so long as the officer, in his
official capacity, can assert a qualified immunity defense while the municipality cannot assert this defense. [FN212]
In a § 1983 action, however, a police officer cannot assert a qualified immunity defense in his official capacity
because an official capacity suit is treated as a suit against the municipality. [FN213] The police officer can only
plead the defenses available to the municipality and qualified immunity is not one of the available defenses.
[FN214] The courts' confusion has increased the need for a coherent examination of multiple representation of codefendants in § 1983 actions.
Additionally, it must be remembered that a municipality has the ability to change its defense at any time,
[FN215] and courts have refused to adopt a per se rule prohibiting joint representation even in light of this fact.
Most jurisdictions have instead adopted a case-by-case evaluation of the adequacy of representation in § 1983 suits.
[FN216] These courts have called for an increased “sensitivity to the risk of conflict,” [FN217] as well as an
awareness by judges and litigants of their duty to guard client's interests and ensure that the client fully understands
the situation. [FN218]
*2858 Only one court has found the potential conflicts in § 1983 suits so serious as to make joint representation
impermissible. [FN219] A federal district court in Texas found that even if an actual conflict did not arise at trial,
separate counsel should be the norm in § 1983 suits. [FN220] The court held that the high potential for abuse, as
well as the hardship that would be imposed on the court should separate counsel be retained in the middle of
litigation, warranted separate counsel in actions against police officers in their individual and official capacities.
[FN221]
Moreover, because most courts have approached § 1983 attorney conflicts of interest violations on a case-bycase basis, they have failed to look at the joint representation conundrum with an eye toward proposing broader
solutions for the recurring problems discussed earlier. Courts have called upon legislatures and ethics committees to
examine the great potential for conflict in this type of joint representation. [FN222] But neither ethics committees,
nor other types of disciplinary agencies, have effectively answered this call to enforce violations of the conflict
rules. [FN223] This failure is demonstrated by one ethics committee's unsuccessful attempt to formulate a per se
rule against joint representation. In 1985, the New Jersey Supreme Court Advisory Committee on Professional
Ethics adopted a formal opinion banning simultaneous representations of a governmental body and a government
official or employee in a § 1983 action. [FN224] The Committee found that due to the “infinite combination of
factual and legal circumstances . . . under which the problem of dual representation of governmental bodies and their
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officials and employees will arise, and the wide variety of conflicting decisions which members of the bar would
arrive at,” [FN225] one rule applicable to solve all the problems--qualified immunity, liability for punitive damages,
and issues of settlement, indemnification, and appeal--was justified. [FN226] Less than one year later, however, the
New Jersey Supreme Court issued an opinion disagreeing with the Committee's formal opinion. [FN227] The New
Jersey Supreme Court found the per se rule of prohibition against joint representations to be overly broad and
unnecessary to solve the possible ethical *2859 problems. [FN228] The New Jersey court admitted that it was
moved, in particular, by the financial burden a per se rule would impose on local governments and individual
defendants who would have to retain independent counsel. [FN229] This argument, as well as the belief that
litigants are entitled to counsel of their choice, [FN230] and that municipal counsel will be able to objectively
determine when joint representation will be appropriate, [FN231] has driven most jurisdictions to adopt a case-bycase approach. [FN232]
B. A Proposal for a Per Se Prohibition Against the Joint Representation of Police Officers and Municipalities in
Section 1983 Actions
The approach of municipalities and courts to the representation of police officers and municipalities in § 1983
actions illustrates that numerous ethical violations occur both prior to and during the joint representation. [FN233]
Joint representation of police officers and municipalities in the § 1983 context places too many burdens on those
involved in the litigation. These burdens include: (1) burdens on the municipal attorney to balance both clients'
interests and confidences; (2) burdens on courts who must closely supervise the litigation to ensure that all clients
are fully informed of potential conflicts; (3) burdens on police officers who must ensure that the municipal attorney
is truly meeting their legal needs; and (4) burdens on the municipality which must continually supervise the
litigation to determine whether to represent and indemnify the officer. This complicated web of varying interests
justifies a prohibition against joint representation.
A per se rule prohibiting dual representation is the only way to effectively guard against the inherent conflicts of
interest that exist in the joint representation of police officers and municipalities in § 1983 actions. To avoid being
overbroad, the per se rule should prohibit joint representation only when the police officer is sued in both his
individual and official capacities, or in his individual capacity alone. [FN234] The rule would automatically require
separate representation of the police officer and the municipality from the moment that notice of the *2860 suit is
served. A municipal attorney could represent the municipal client, but could not represent the police officer.
If municipalities do away with the requirement that the attorney must first determine the scope of the officer's
action in order to provide representation, conflicts that arise in the initial screening interview between the police
officer and the municipal attorney vanish. [FN235] Such a per se rule also removes the pressure on police officers,
municipalities, and municipal attorneys to waive conflicts of interest that occur in order to preserve less-expensive
in-house representation. [FN236] This procedure will guard against the attorney's need to withdraw from the police
officer's representation during the course of the litigation. [FN237] In addition, attorneys will avoid a violation of
Rule 1.9, which prohibits representing clients whose interests are adverse to former clients' interests once they “cut
loose” the police officer during the representation. [FN238] Even if the officer's separate attorney learns that the
officer was not acting within the scope of his employment, she has no allegiances to another client--for example, the
municipality--who could use this information to its advantage. Moreover, separate representation will better protect
the police officer's communications to his attorney from use by the municipality or third persons. [FN239] Separate
representation will ensure that attorneys are not pressured to violate their ethical duty of confidentiality to one client
to help advocate for another client. [FN240] The police officer's counsel will be empowered to work with the
municipal attorney to determine the best course of action for the litigation based on the information that her police
officer client has given her. Accordingly, all clients will be provided with an attorney to exclusively advocate for
their best interests in deciding issues of settlement, appeal, and litigation strategy. [FN241]
*2861 Without a per se rule, conflicts will continue to go unchecked in cases where municipal attorneys
represent both police officers and municipalities. Disciplinary bodies are not effective enforcers of violations of the
ethics rules. [FN242] Although courts have an “overall responsibility . . . to supervise the ethical conduct of the
Bar,” [FN243] courts have been reluctant, absent a direct conflict of interest, to disturb a client's choice of counsel or
to disrupt the litigation by disqualifying attorneys. [FN244] In addition, a court's disqualification of an attorney, or
an attorney's withdrawal from the representation of the police officer, does not solve every conflict of interest
problem. Courts have been virtually silent about the inherent conflicts of interest that municipal attorneys face in §
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1983 litigation. For example, no court has addressed the municipal attorney's ethical violations of the former client
rule when she continues the representation of the municipal client after withdrawing from the police officer's
defense. [FN245] Even though the possibility always exists that this conflict will arise, the nature of § 1983 actions
has caused courts to be reluctant in disqualifying attorneys based simply on the fact that the municipality may
change its defense later in the litigation. [FN246] This is due, in part, to courts' increasing tolerance of screening
mechanisms that they believe safeguard abuse. [FN247]
In view of courts' reluctance to address the inherent conflicts in § 1983 joint representations, the ABA should
take the lead in promulgating a per se rule prohibiting joint representation of police officers and municipalities. It
should also lobby states and local municipalities to amend the representation statutes to that effect. Many would
argue that the cost of requiring separate representation would be overwhelming for a public entity, and therefore,
joint representation is sufficient unless an actual conflict--a situation in which the co-defendants are arguing
conflicting defenses--exists. The inference from this argument is that due to limited funds, and the nature of
particular law practices, certain types of lawyers should be exempt from the professional code of ethics. Nowhere in
any of the ethical codes do the authors suggest that the rules are inapplicable to a particular class of lawyers.
[FN248] Municipal attorneys, like all attorneys, should be *2862 held to the same ethical standards of conduct and
should adhere to the traditional conflict of interest rules. Any other approach will infringe on the present attorneyclient structure in which the client directs the representation, [FN249] and will severely restrict the interests of
municipal-employee clients like police officers.
Conclusion
An inherent divergence of interests exists everytime a municipal attorney represents both a police officer and a
municipality in the same § 1983 police misconduct case. These differing interests substantially affect the actions of
the municipal attorney and give rise to several instances of divided loyalties that cause the attorney to violate the
ethical conflict of interest rules. Additionally, the many statutes that currently allow municipal attorneys to jointly
represent police officers and municipalities also violate the ethics rules and do not provide a sufficient guide for how
municipal attorneys should handle conflict situations.
The many potential conflicts of interest that can arise are “far too serious to permit joint representation . . . even
in the face of an apparent waiver signed by both of these defendants.” [FN250] A per se rule against joint
representation of a municipality and a police officer in cases where a police officer is sued in his individual and
official capacity, is the only way to guard against the endless conflicts that can arise, and to ensure that both
defendants are provided with zealous advocates.

[FNa]. I would like to thank Professor Russell Pearce for his assistance with this Note and the Stein Scholars
Program for sparking my interest in the study of legal ethics. In addition, I would like to thank my friends, family,
and especially Rich for continued patience and support.
[FN1]. State v. Livoti, 632 N.Y.S.2d 425 (1995).
[FN2]. David Gonzalez, For a Mother, Vindication and Sorrow, N.Y. Times, Feb. 8, 1997, at 23.
[FN3]. 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.
[FN4]. 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.
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[FN5]. Kocieniewski, supra note 3, at 1.
[FN6]. 42 U.S.C. § 1983 (1994).
[FN7]. 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.
[FN8]. See infra part I.A.
[FN9]. See Jorge Fitz-Gibbon, City Says Livoti Acted on His Own, Daily News, Oct. 23, 1996, at 13.
[FN10]. 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).
[FN11]. 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.
[FN12]. 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).
[FN13]. 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).
[FN14]. 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).
[FN15]. Model Rules, supra note 14, Rule 1.7 cmt. 1.
[FN16]. Id. Rule 1.1.
[FN17]. Id. Rule 1.6.
[FN18]. Id. Rule 1.3 cmt. 1.
[FN19]. 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).
[FN20]. 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
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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).
[FN21]. 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).
[FN22]. 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).
[FN23]. See infra part III.A.
[FN24]. See infra part II.A.
[FN25]. 42 U.S.C. § 1983 (1994).
[FN26]. Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting Monroe v. Pape, 365 U.S. 167, 171-72 (1961)).
[FN27]. Monroe, 365 U.S. at 187-92.
[FN28]. 436 U.S. 658 (1978).
[FN29]. 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).
[FN30]. See infra part II (discussing conflicts of interest for the municipal attorney in § 1983 litigation).
[FN31]. 42 U.S.C. § 1983 (1994).
[FN32]. Id.
[FN33]. 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).
[FN34]. 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).
[FN35]. 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.
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[FN36]. 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.
[FN37]. 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); Cushman, supra note 34, at 702-03; Neal Miller, LessThan-Lethal Force Weaponry: Law Enforcement and Correctional Agency Civil Law Liability for the Use of
Excessive Force, 28 Creighton L. Rev. 733, 762 (1995).
[FN38]. 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.
[FN39]. 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.
[FN40]. 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).
[FN41]. 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).
[FN42]. 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).
[FN43]. 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).
[FN44]. 483 U.S. 635 (1987).
[FN45]. Id. at 640; see Denver Area Educ. Telecommunications Consortium, Inc., v. Federal Communications
Comm'n, 116 S. Ct. 2374, 2390 (1996).
[FN46]. 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.
[FN47]. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
[FN48]. 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)).
[FN49]. See supra part I.A.1.
[FN50]. Hafer v. Melo, 502 U.S. 21, 25 (1991).

See infra part I.B.2 discussing defenses available to the

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municipality, and therefore, to the police officer sued in his official capacity.
[FN51]. 445 U.S. 622 (1980).
[FN52]. Id. at 651; see Mark R. Brown, The Demise of Constitutional Prospectivity: New Life for Owen?, 79 Iowa
L. Rev. 273, 274 (1994).
[FN53]. 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.
[FN54]. Smith v. Wade, 461 U.S. 30, 51 (1983); Gordon, 788 F.2d at 1199.
[FN55]. Smith, 461 U.S. at 51.
[FN56]. Newman v. Piggie Park Enters. Inc., 390 U.S. 400 (1968).
[FN57]. 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).
[FN58]. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
[FN59]. See infra part II.D.
[FN60]. 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).
[FN61]. 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).
[FN62]. 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).
[FN63]. Coleman v. Smith, 814 F.2d 1142, 1149 (7th Cir. 1987).
[FN64]. 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).
[FN65]. Coleman, 814 F.2d at 1149.
[FN66]. 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
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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.
[FN67]. 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.
[FN68]. 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.
[FN69]. 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).
[FN70]. See infra part II.C.
[FN71]. See infra part II.C.
[FN72]. 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.
[FN73]. 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).
[FN74]. 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.
[FN75]. Berger, supra note 62, at 74.
[FN76]. 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 employment. Id. at 1054.
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[FN77]. See id. at 1050-51.
[FN78]. See supra part I.C.
[FN79]. Ramirez, supra note 64, at 1041.
[FN80]. 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).
[FN81]. 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.
[FN82]. See supra part I.D.1.
[FN83]. 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).
[FN84]. 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).
[FN85]. 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).
[FN86]. 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.
[FN87]. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 358, at 1 (1990).
[FN88]. Id. at 8.
[FN89]. 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).
[FN90]. 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 Employment Litigation, 10 Lab. Law. 19, 32-33 (1994).
[FN91]. See Model Rules, supra note 14, Rule 1.13 cmt. 3.
[FN92]. 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.

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[FN93]. 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.
[FN94]. Corporation Counsel Interview, supra note 69.
[FN95]. 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).
[FN96]. Berger, supra note 62, at 75.
[FN97]. See id. (discussing the representation letter the police officer must sign requiring him to waive his attorneyclient confidentiality ethical rule).
[FN98]. Id.
[FN99]. Mary C. Daly, An Overview of Ethical Dilemmas, 9 J. Suffolk Acad. L. 113, 120 (1994).
[FN100]. See supra notes 88-89 and accompanying text; Perschbacher & Perschbacher, supra note 85, at 703.
[FN101]. See Perschbacher & Perschbacher, supra note 85, at 690, 702-03.
[FN102]. 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-ofemployment determination is to be made by corporation counsel); Nassau Interview, supra note 72.
[FN103]. 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.
[FN104]. 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).
[FN105]. 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.
[FN106]. 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.
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Id.
[FN107]. Id.; see Hazard & Hodes, Law of Lawyering, supra note 20, § 1.7:207.
[FN108]. Model Rules, supra note 14, Rule 1.7 cmt. 7.
[FN109]. Id.
[FN110]. Id. Rule 1.7(a)(2).
[FN111]. 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.
[FN112]. 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.
[FN113]. 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).
[FN114]. Each client must consent after consultation. See Model Rules, supra note 14, Rule 1.7(a)(2).
[FN115]. 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).
[FN116]. See supra part II.A.
[FN117]. There is the possibility that police unions could play a role in providing representation to police officers in
§ 1983 actions. See infra note 241.
[FN118]. 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.
[FN119]. 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.
[FN120]. 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),
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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.
[FN121]. 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.
[FN122]. See supra note 60.
[FN123]. 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.
[FN124]. 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).
[FN125]. 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.
[FN126]. Corporation Counsel Interview, supra note 69. Conversely, it is possible that due to the objective “inscope” 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.
[FN127]. 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).
[FN128]. See supra part II.B.
[FN129]. See supra notes 85-90 and accompanying text.
[FN130]. 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.
[FN131]. Model Rules, supra note 14, Rule 1.9(a).

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[FN132]. See id.; Doyle & Blumenthal, supra note 90, at 31; Steinberg & Sharpe, supra note 19, at 5-6.
[FN133]. 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”).
[FN134]. Model Rules, supra note 14, Rule 1.9(a).
[FN135]. 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).
[FN136]. See N.Y.S. Bar Ass'n. Comm. on Professional Ethics, Op. 674, at 9 (1995).
[FN137]. 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.
[FN138]. 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.
[FN139]. 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).
[FN140]. 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.
[FN141]. See supra note 121.
[FN142]. 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).
[FN143]. 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).
[FN144]. Bateman, supra note 19, at 267-68; McMinn, supra note 14, at 1255.
[FN145]. 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).
[FN146]. Breger, supra note 130, at 1145-46; Steinberg & Sharpe, supra note 19, at 28.
[FN147]. Breger supra note 130, at 1145; Steinberg & Sharpe, supra note 19, at 27.

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[FN148]. Steinberg & Sharpe, supra note 19, at 27-28.
[FN149]. Id. at 13-14.
[FN150]. 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).
[FN151]. See City of New York, The 1994-95 Green Book 228-30 (1995).
[FN152]. Corporation Counsel Interview, supra note 69.
[FN153]. Id.
[FN154]. 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.
[FN155]. See Breger, supra note 130, at 1146; Solomon, supra note 93, at 327.
[FN156]. 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).
[FN157]. Martyn, supra note 137, at 60; Steinberg & Sharpe, supra note 19, at 28.
[FN158]. 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).
[FN159]. Breger, supra note 130, at 1130-31.
[FN160]. See Lawry, supra note 158, at 627.
[FN161]. 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).
[FN162]. 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)”).
[FN163]. 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.

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[FN164]. 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.
[FN165]. 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.
[FN166]. See supra part I.A.
[FN167]. See supra part I.B.
[FN168]. See supra part I.C.
[FN169]. See supra part I.D.1.
[FN170]. See supra part I.D.2.
[FN171]. See supra part I.D.2.
[FN172]. 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.
[FN173]. See supra part I.C.1.
[FN174]. See supra part I.D.2.
[FN175]. 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.
[FN176]. 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).
[FN177]. N.Y. Gen. Mun. Law § 50-k(3) (McKinney 1986).
[FN178]. 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).
[FN179]. Model Rules, supra note 14, Rule 1.7(b).
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[FN180]. 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.
[FN181]. Corporation Counsel Interview, supra note 69.
[FN182]. Model Rules, supra note 14, Rule 1.8(f).
[FN183]. “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.
[FN184]. See supra notes 154-57 and accompanying text.
[FN185]. 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).
[FN186]. 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).
[FN187]. 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).
[FN188]. 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).
[FN189]. Opinion 552, 507 A.2d at 236.
[FN190]. 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.
[FN191]. See supra part I.D.2.
[FN192]. See supra part I.D.2.
[FN193]. 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.
[FN194]. 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).
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[FN195]. 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).
[FN196]. 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).
[FN197]. See Bateman, supra note 19, at 250-51; Green, supra note 22, at 77; McMinn, supra note 14, at 1236.
[FN198]. 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).
[FN199]. 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).
[FN200]. 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).
[FN201]. 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.
[FN202]. See supra note 197 and accompanying text.
[FN203]. 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).
[FN204]. 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.
[FN205]. 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.
[FN206]. See supra note 188 and accompanying text.
[FN207]. See Model Rules, supra note 14, Rule 1.8(f)(2).
[FN208]. See id. Rule 1.8(f)(3) & cmt. 4.
[FN209]. See id. Rule 1.8(f)(2).
[FN210]. 709 F. Supp. 1219 (S.D.N.Y. 1989).
[FN211]. Id. at 1227-28.
[FN212]. Ricciuti v. New York City Transit Auth., 796 F. Supp. 84, 88 (S.D.N.Y. 1992).
[FN213]. Hafer v. Melo, 502 U.S. 21, 25 (1991); see supra part I.B.
[FN214]. See supra part I.B.

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[FN215]. See supra part II.C.
[FN216]. See supra note 21 and accompanying text.
[FN217]. Coleman v. Smith, 814 F.2d 1142, 1147 (7th Cir. 1987); accord Gordon v. Norman, 788 F.2d 1194, 1198
(6th Cir. 1986).
[FN218]. 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.
[FN219]. See Shadid v. Jackson, 521 F. Supp. 87 (E.D. Tex. 1981).
[FN220]. See id. at 89-90.
[FN221]. Id.
[FN222]. 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”).
[FN223]. 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).
[FN224]. N.J. Sup. Ct. Advisory Comm. on Professional Ethics, Op. 552 (1985).
[FN225]. Id.
[FN226]. Id.
[FN227]. In re Opinion 552 of Advisory Comm. on Professional Ethics, 507 A.2d 233 (N.J. 1986).
[FN228]. Id. at 235-36.
[FN229]. Id. at 239.
[FN230]. 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”).
[FN231]. 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).
[FN232]. See supra note 21 and accompanying text.
[FN233]. See supra part II.
[FN234]. 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.
[FN235]. See supra notes 93-101 and accompanying text.
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[FN236]. See supra notes 116-20 and accompanying text.
[FN237]. See supra part II.C.
[FN238]. See supra notes 130-37 and accompanying text; Model Rules, supra note 14, Rule 1.9.
[FN239]. See supra part II.A.
[FN240]. See supra text accompanying note 121.
[FN241]. 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.
[FN242]. See Green, supra note 22, at 88-89; supra note 223.
[FN243]. Dunton v. County of Suffolk, 729 F.2d 903, 908 n.4 (2d Cir. 1984).
[FN244]. See supra notes 200-05 and accompanying text.
[FN245]. See supra notes 130-36 and accompanying text.
[FN246]. See supra part I.B.
[FN247]. See supra notes 143-48 and accompanying text.
[FN248]. 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.
[FN249]. Model Rules, supra note 14, Rule 1.2(a); Model Code, supra note 14, EC 7-7; see id. EC 7-8.
[FN250]. Shadid v. Jackson, 521 F. Supp. 87, 90 (E.D. Tex. 1981).

END OF DOCUMENT

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REPRESENTING POLICE OFFICERS AND MUNICIPALITIES: A CONFLICT OF INTEREST FOR A
MUNICIPAL ATTORNEY IN A S 1983 POLICE MISCONDUCT SUIT, 65 Fordham L. Rev. 2825 (May
1997)
Citing References
Secondary Sources (U.S.A.)
1 THE DUTY DEFINED: SPECIFIC OBLIGATIONS THAT FOLLOW FROM CIVIL
GOVERNMENT LAWYERS' GENERAL DUTY TO SERVE THE PUBLIC INTEREST, 42
Brandeis L.J. 13, 69 (2003)
2 SHOULD JURIES BE INFORMED THAT MUNICIPALITY WILL INDEMNIFY OFFICER'S S
1983 LIABILITY FOR CONSTITUTIONAL WRONGDOING?, 86 Iowa L. Rev. 1209, 1249
(2001)
3 RECENT LAW REVIEW ARTICLES CONCERNING THE LEGAL PROFESSION, 22 J. Legal
Prof. 387, 390 (1998)
4 THE DISCIPLINARY RESTRICTIONS ON MULTIDISCIPLINARY PRACTICE: THEIR
DERIVATION, THEIR DEVELOPMENT, AND SOME IMPLICATIONS FOR THE CORE
VALUES DEBATE, 84 Minn. L. Rev. 1115, 1158 (2000)
5 PRENUPTIAL AGREEMENTS AND THE SIGNIFICANCE OF INDEPENDENT COUNSEL, 17
St. John's J. Legal Comment. 313, 346 (2003)
6 POLICE LIABILITY IN HIGH-SPEED CHASES: FEDERAL CONSTITUTION OR STATE
TORT LAW; WHY THE SUPREME COURT'S NEW STANDARD LEAVES THE BURDEN ON
THE STATE AND WHAT THIS MIGHT MEAN FOR MARYLAND, 29 U. Balt. L. Rev. 139,
174 (1999)
7 THE LONE CONSPIRATOR, CRIMINAL LAW'S OXYMORON-IN DEFENSE OF THE RULE
OF CONSISTENCY IN FEDERAL CONSPIRACY CASES, 2004 U. Ill. L. Rev. 755, 780 (2004)
8 A THEORY OF GOVERNMENTAL DAMAGES LIABILITY: TORTS, CONSTITUTIONAL
TORTS, AND TAKINGS, 9 U. Pa. J. Const. L. 797, 870 (2007)
9 MUST GOVERNMENT LAWYERS "SEEK JUSTICE" IN CIVIL LITIGATION?, 9 Widener J.
Pub. L. 235, 280 (2000)

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