Can a county counsel who advises county employees on county business also negotiate the county's collective-bargaining agreement against those same employees?

Plain-English summary

County counsel is employed by the county and assigned to negotiate the county's collective-bargaining agreements with county employees. County counsel also advises county employees on various county matters, but not on personal matters. The opinion asks whether county counsel may negotiate the collective-bargaining agreement against those employees.

The opinion answers yes. It applies Oregon RPC 1.13(a), under which a lawyer employed by an organization represents the organization. On these facts, county counsel has only one client, the county. The fact that county counsel may speak with county employees about county matters does not transform those employees into county counsel's clients.

Because county counsel has only one client, the opinion concludes there can be no current- or former-client conflict under Oregon RPC 1.7 or RPC 1.9 as a matter of law. The opinion adds, however, that county counsel may have an obligation under Oregon RPC 1.13(f) to explain that counsel represents the county only when counsel knows or reasonably should know that the county's interests are adverse to those of the employees counsel is dealing with.

In practice

The opinion holds that, under Oregon RPC 1.13 as it stood at the time of the opinion, a government lawyer who represents the entity has the entity as the sole client; routine advice to employees about entity business does not create individual attorney-client relationships, so adverse negotiation against those employees raises no RPC 1.7 or RPC 1.9 conflict. The analysis turns on client identity. Where the entity's interests are adverse to the constituents counsel is dealing with, RPC 1.13(f) calls for counsel to clarify whom counsel represents. Verify the current text of Oregon RPC 1.13 before relying on any specific point.

Common questions

Q: I'm county counsel and I advise our staff on county business. Can I negotiate the union contract against them?

A: Yes. The opinion concludes the county is your only client; advising employees on county matters does not make them your clients, so there is no current- or former-client conflict.

Q: Do the employees become my clients just because I give them advice on county matters?

A: No. The opinion concludes that speaking with employees about county matters does not transform them into the lawyer's clients under RPC 1.13(a).

Q: Do I have to tell the employees anything about whom I represent?

A: Under RPC 1.13(f), counsel must explain that they represent the county only when counsel knows or reasonably should know the county's interests are adverse to the employees being dealt with.

Background and rules framework

The opinion interprets Oregon RPC 1.13 (organization as client), including the constituent-clarification duty in RPC 1.13(f), and explains why RPC 1.7 (current-client conflicts) and RPC 1.9 (former-client conflicts) do not apply when there is a single client. These correspond to Model Rules 1.13, 1.7, and 1.9.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.13(a), (f) / Model Rule 1.13 (organization as client)
• Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts)
• Oregon RPC 1.9 / Model Rule 1.9 (former-client conflicts)

Cases:

• In re Harrington, 301 Or 18, 718 P2d 725 (1986)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-46 (identifying the client)
• OSB Formal Ethics Op. No. 2005-57 (single-client analysis)

See also

• OSB Ethics Op. 2005-57: Government Lawyer in Support Enforcement
• OSB Ethics Op. 2005-46: Who Is the Client in a Group Legal Plan

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-67.pdf