65 Fordham L. Rev. 2825
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 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 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 frequentlyemployed 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, 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 co-defendants' 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]
*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, 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
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.
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]
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, 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 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, 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 attorney-client 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 co-defendants 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-by-case 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 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-by-case
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 § 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 attorney-client structure in which
the client directs the representation, [FN249] and will severely restrict the interests of municipalemployee 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.
[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 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.
[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, Less-Than-Lethal Force Weaponry: Law Enforcement and
Correctional Agency Civil Law Liability for the Use of Excessive Force, 28 Creighton L. Rev.
733, 762 (1995).
[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 70607.
[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 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 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 offduty. 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.
[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 attorneyclient 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.
[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 attorney-client 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-of-employment 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.
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), 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 “in-scope” determination for representation by a municipality, the attorney would
continue to find that the officer acted within the scope of his employment in order to continue to
provide representation, while at the same time argue that the officer acted in bad faith. See supra
notes 61-66 and accompanying text.
[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).
[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, 40911 (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.
[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.
[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).
[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).
[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 selfregulation); 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.
[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.
[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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