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Home My WebLink AboutCOM 0637.002 1996-1998 fir,,. O~ o! Dltclpllnary Counwl OI?clpllnary Soa.d Su rcmc Coun t Sum o' Hnrtii ~ 116. tlahop Suee~ Suitt 600 n"~^'^~'" S{onolulu, Ne~eii 9611) O~6AI M Awh tit ont 10gSINS91 ~ 1 ~k`~""f""'" Wr` l ~ •l.met A. KawaeMta CT4f Qla~~lw (yrw.~. ry Belnlot I..IIIT. OcnJd H.1~,'ec . - man /WIw.M Of.•+M~~~p ea..A ~ EUen OoEptYQnon ChaAene M.NoMe fal~A i:y+~ Cefole R. Rlchelku Ct.C) RecemaryT. Faaio tSrbn C. Mnna - C.lepaon C•tlana 1"'^dP"'e Madeleine J. Goodfnan. ??~,p, Seal G.ONcd Gcnldine N. Naseq~a Aon 9ancMt 1Tomae K IGulukukul, Jt. Swaa l.. YUaUe Ropen P. Mouteof f da't'a CIIRofd L Nakta at)orkt.Muryhr oap O.O In Slcph+nle A Racnu September 17, 1993 CONPIDENTIAI. Carolyyn9uau.Ph.D. Menucl R. Sy1.ee~etC.PJ1 1.Y. T?n. M.D.1 D. ' DtEonh K Wr11M Dunne li.H. Danq, Csq. Deputy Corporation Counsel ' Department of the Corporation Couneel RECEIVED City and County of Ronolulu n,~,~_ _ g ..-W _ aonolulu, xI 96813 Data ~b1:'_Y_.__ Ree Request foe sthlos Opinion Count' Council; ° F;" Dter ldr. pangs TAis responds to your letter doted August 27, 1993 (received I August ]D, 1993) requesting •thioa gvidencr. lour letter was •upplementad bT subsequent telephone conversations with our pnY•alegai, xargo Rnrpdy. _ 2. 6TA'1'E2SENT O? (ACTS. You represent Defendants (lour ponce officers, the Chlei o! Police, and the City and County of Ronolulu) in a lewsuit filed in the Unltod Stata• District Courts District of Hawaii, •llsginq civil rights violations under 12 USC si1981, 1911, and 1985, as well a• aooaoon lax torts of assault, battery, and negligence. The suit xes filed by a wo®aA arrested Lot bsrasament of • polieo ofileor. The xowan alleges thet wAil• the was in euttody at the Ronolulu Police 6tetion, she vas beaten by three offlcsrs and a polies matron. The elai>la for relief includes (at it always the ease in litigation alleging a vlolatioA of civil rights) a request ' for punitive damages against the indi~ldual otficerr. ' Although Defendants agree that the woman was injured when the tried to ehnrge one of th• oLficorr and ttt•mpted to got out of the holding cell, they oatsgorieally dopy thst any sssnult occurred or thee an officer incsntionelly injured the woman. Defendants ell agree that !f an injury did occur, their actions wore justified. Comm Die. ~ ~ D~ )!1e life. C O~ Est. 4bf uresenied G C ITwf. Date. iLP.i R IUQR~ yuane H.H. Pang, Er September 17, 1991 Page ~ One of the Dalendants previously filed a wbrkess• compeneetion claim with the City ea a result of the incident !n estion. On the advice of sn ettorney in your Dopartment, the claim was denied by the City. The Defendant (through an attorney) hae requoeted independent counsel for trial in the civil rights action, which it presently set !or September 2e, 1993. Your Departmont does noL wlah to present the oase o! any ono Defendant in a mnnnor which will be detrimental to tho intereete o! any other Defendant. II. INODIRi• You ask whethezr (1)•.Detertdante are entitled to independent counsel eolely due to t s fact that n claim Lor punitive damages has been made against thom~ and (2) a coniliot o! interest exists as to ono of tho Defendant/0ificors because an attorney in your Department denied the workora• Compere ation Claim of that Defendant/0!licer and will defend the City against thnt claim. III. ~SC0882021. A. Punit_ iVe De~aoee Claim. Tho majority o! oourts which have conalde7ced a governmental law oliice•s Concurrent representation of the government and of public eaaployees, and whether any conllicte of interest may arioe therefrom, have rejeoted a ~ i! disqueliiication rule in favgs OL cnae-by-cnao roviav. 6~ p~.xi~i0~,sor Aeview ems, ion SS2, 102 N.J. i s, S07 A.2d Z]3 (:1986)f ,h9 Qiiod_v. eorzv, 89 f.Suppp. eJ3 (N.D.I11. 198{)1 pegth r:`Salom, 111 JF.D.2d 770, 490 N.Y:8.4d 326 (1965). - In 4oinion 553, ~,uora, the court exas?ined "whether a municipal ettorney may represoat both the munioipality and individual officials or employees of that municipality when all have been sued ea oo-delandnnts Ln a civil rights aotioa under LI.S.C. 61983.• 102 li.J. at 195, 507 1?.2d at 13~. The court concluded that 3oine representation would be pereiisaibla i! the delense¦ to ba raised by the government and its employees are consistent ~ i! there are no divergent claisu for tompensator~r relief against each ales o! detondants. j~,, at 507 ]?.4d at 239. ' The court Ln Aoinien SS2 made clear that whore a civil complaint could be construed as alleging personal liability on the part of a poverruaent employee, a conflict o! i.ntersst would not nriee if, !or exempla, only injunctive relief, injunctive relief coupled with compensatory damages, or compensatory damages alone wore sought ~ responsibility for providing that relief rested with the governmentn body. However, 'whenever the claims neserted 1 ~ lJ i Duane N.H. PaRq, Esq. September 17, 1993 Page 3 oould subject the individual defendant to ppeereonal liability for which indemnification is unavailable, conElicta of interest would erieo. I4~ nt 197, 507 1?.2d at 236 (footnote and citations omitted). The oourt in opinion ss2 identified a alarm for punitive damages agninst a governmental officer or employee as as example of n rituaeioa in which indemnification eight be unavailable. 1'he court in Opinion sS2 gave support to the views of the New Joreey 6uprearo Coust'a Judviaory Committee on Professional Etbics, which had determined ns follows 2n the event the Section 1983•actiun is suaceaeful and involves punltivs dmages•~-tne matter of indemnnification for costs and punitive damages le put in issue between tho official and tba municipality. Since the municipal nttornay moat be tree to exercise hie rodependant judgment in advising and delendlnq the municipality on the lndenasificntioa claim, that municipal eounsol cannot properly represent the municipal official agninrt whom the not on ran brought. Yn New Joreey, mete law dictates that municipalities are specifically immune troy ppunitive damages under 11983. The potontial punitive damages linbility o! public officials in 51983 actions prompead the New Jeraep Committese on Professional Nthics to rule that each official moat be represented by independent counsel. The Committee erpresead the view chat aonaent of th} lndividual oo- defeadanes would not be suffioieat to avsrcomo the ac[ual conflict. The eanre in Qpj prop 3S2 supported that conclusion. -101 N.J.;st {07 1?.2d st 231. - Turninq to your inquiry, you hove lndicntad that the police officers, police chief, and the City presently egr9e that the ofilcazs were acting in their official capacities at the t1A6 of the incident. Howver, you arc uncertain whether the Cityy rill indemnify she officers for any punitive damages awarded Ln the event the plaintiff's claims are upheld. MithouL a definite ansr?sr as to whether the city will indemnify the lndividual oo-defendants from all potential mpnotary damages, re are unable to find that conflict of interest concerns oen ba surmounted. Onleee the city agrees to indemnify ehs officers, separate counsel would have to be engaged to repreaant thta. As indicated Sn ORj.nion 552, where an netual conflict exists to a ;1987 nation, consent by the parties to the multiple ropresantation will not satisfy ethical parametora. ~181?/e?~ Lawvera'_ K nunl on Professional ~,'onduct, 51x101 (1991) \ ~ Duane W.N. Pang, Bsq. September l7, 1993 Peg• L (representation of clivnc• whose interests cry adverse permiesiDle when intvrest¦ ar• pQtentielly conflicting). 8. Workers' ComcgDsaeion Netter. You independently inquire whether a conflict of lnteryrt mould arise In connection with yyoour Department's sisaultaneou• defense of one of the Defendants in the federal lawsuit whtly taking a position adverse to that Defendant on Dehal! of the City 1st defending agalnat the indlvidual'¦ workers' compensation claim. As stated in InternstiorLl usiaeas Neohines Cpro. v. I,ey1A 579 p.2d 271 (]d Cir. 1478), wherv_ehe reletionehip between an attorney and hie or her client„is an active and existing one, advoree reprveyntativn is crime ~egy( improper. ;rgq genereli~v, )qQ,p~ v. Fona, 60 Hew. 601, S9] P..7d 386 (1979). Problems initially raised in such situations relate to the deletsriou• effect upon the attorney's independenoe of ijudgment, loyslty, and vigor in hie or her representation of One eiient sgniaet another. While a lawyer may vtJfically by able to continue to repreeene, in unrelated matters, elienta who are adverse to each other in e separate case, the situation changes where the lawyer beoamee involved on behalf of one client in direct opposition to the other client. The conflict at that point Deeomea actual rather than potential, end (aa diaeusssd in Section T.A. above) waiver of the conflict by either or both elienta is inadequste to permit the lawyer's further involvement on behalf of each client. The adversity betirtwn `Chb -City and thy Defendant on the Defendnnt'a vrorkere' compensation claim nvgetea the City's abiliiy. to ethically continue •imultanyous r6pzvwntetion of that Defendant- in the federal lawsuit. Your letter raises, howyver, a !actual issue dssysvinq of further diecusoion. You state in yyoour letter shat the Deputy In your Departmeat who will be defending the City against the Defendnnt'a vorkore' compensation claim ie housed in a building which i¦ physically separate from yours. 2n ur follow-up telephony convareation with is.. Y.urphy, you state that your office consists of four separate divisions coneletinq of 33 nttorneya, the majority of whoas cry housed in City Hall. Diviaien ¦enff meetings include only the attorneys of that particular division. You cry aasignsd to the Trials Divleion of your Department, while the attorney handllriq the undsrlyiaq workers' compensation matter is assigned to a separate division. In State v. IClettan f, Tl Nar..399, 601 P.2d 3~8 (1990), the Buprems Court permitted the Department of the 1ttorney General to ~ ~ Duano W.H. Penq, Eeq. septembes 17, 1993 Page S allaultaneously represent a State employee in a civil matter and chile iaveetlgatinq end prosocutinq him in s criminal matter as long ae no pre]udice resulted in the criminal matWr and the Depertment~s staff was assigned is such a way as to afford the employee independent counsel and representation is the civil mattor, The 6upreme Court stated in IClattenhoft, sure, that the Hawaii Code of Professional Responsibility cannot "aechanically• be applied to the 1?ttorney General'¦ office due to that office's "mendeted role in owr legal system'. I~ at 603, 601 P.2d SS1. The Court in ><3atteMoff went oa to asyy that e[w]e reaogniss, as do the mn]ority of the states, that•due to the multiple duties statutorily imposed upoa.the t?a's office, the ethical rules for privets law firms are not nec~sserily applicable, in all canoe, to she a?G~s office.' Id.~ at 604, B01 P.2d at SS1. The Court further ateteda Ws hold that the AG any represent a state employee !.n civil matters while investigating end proaeoutinq I~im in criminal matters, so long as the stall o! the Ap con be assigned ih such a manner ae to atlord lndependent legal counsel sad representation in the oivil matter, and so long as suoh representation does not result In prejudice in the crlmir?al mattor to the peraoa represented. et 605, BO1 P.2d at 552. ~bettenhott appears to vnlidato screenia¢ measures where a large government agency has discernable segments. 1?a long se those 8egmenta operate as nearly autonosaous parts, the entire agency will not ba diaqualilled provided that the parts continue to operate eeperetely end there is no pre~udlce to the clients involved. Ne are without adequate factual information upon wLich to conclade that your Department has adequate •diseernable segments' xhlch oould allow the Trisl oivlalon to represent the Defendsr?t in the lederal lawsuit while a eeparnte division opposes that Dofendant is the workers' oompeasstion matter. tour latter .fates that the attorney in your Department who is handling the workers' ' compensation clam works isi as office building eeparnte from yours. However, your telephone conversation with ttnrge Murphy gave us a different impression (i.e., that ell deputies !n your Department, azcept for those is the Pamily Support pivieion, era housed Sn City hall) tPe are, is any event, without informetioa as to the relative physical and organisational seperetlon between your pepertment'e trial division and the division hendlinq the workers' compensation case. ~ ~ puana w•H• Pnnq, req. $epcember 17, 1993 Page 6 wa rend IIlettenhott as requiring near-total sepexatlon of dudes and rasponsibilitlos to the poise that the divisions se issue oporate as quasi-autoaomoue entities which have little or no daily substantive interaction. It maY not ba necessary for divisions to b• housed in soparate buildings for the conolueione roachwd in Elattenhoff to be spDlicable. loather, while the relative rite o! the governmental legal dapartsaent may D• a factor under ~~Q~, else alone would not be determinative. ]?gaia, howevor, we do not have sufficione information to alloy va to conclude thnt the connition¦ found to exist in l~ttanhotf apply in this situation. 8nrrinvv the receipt .o! ears .detailed fnctuel information regarding the orgnni=etioa..nnd.operation o! your office, we are unnble co conclude that the rssu]ts reached in Riactanhoft are applicable to your Depertmane in chic case. Moreover, an answer to this inquiry mould be moot unless, as discussed in Section II.A above, foil indemnifieetion !or the individual Defendant• is evailabla from the City on the punitive dea~sges claim. I should add in closing that your Dopartmant•s continued representation of the City in defending against the Defendant's workers' compensation claim would, upon any withdrawal by your Depestmant fram repsesentation o! the Defendant in the federal lnwauic, be conditioned upon full compliane• by your Department with nR 1-301. IIndsr DA ~-101, any conlidentinl client information which may hove Deen obtained from the palendent in connection w1tD the federal lawsuit canaot be utilised or revealed in the workers' compensation case without the informed consent o! the Defendant. iv. surQ+AeYs it i• my office's opinion that your office would be ethically precluded trom continuing to represent the individual Defendants unlssa the City can ar?d will iadeuanily them for any punitive damages awarded in the event o! an adverts decision !n the federal lawsuit. Na era without adequate !alormation upon which eo conclude that rho result roeohed in rtaee r. 1Clett4ppoii, ¦uorn, oan b• applied in this situation. Therefore, it i• my office's opinion that your Department would be Oisqualilied from siaiultaneovely defending the City against the workers' campenteCion claim filed by one of the Deisndnnes while detandiaq that individual !n the federal lawsuit. •i Duane K.H. Panq, 6eq. Septambor 19, 1993 Page 7 M usual, the virus expsessed heroin, which are based solely on the feats prrsenied, er0 those of this offlcE only and do not necessarily reflect thv conclusions of the entire Diseiplinery Board. Vary~truNly yours, GERALD H. KIBS CHIEP DISCIPLINARY COVN9EL sm