Opinion #119. Class Action Against Government Agency

Issued by the Professional Ethics Commission

Date Issued: November 14, 1991

QUESTION

The Commission has been asked whether the inquiring attorney would violate any Bar Rule by filing a class action against a government agency if the attorney had received payment from a different agency of the same government for providing legal services to the plaintiff class representatives in matters other than the class action but somewhat related thereto. The inquiring attorney proposes to inform the plaintiff class representatives that his fees in their other matters have been paid by the government agency.

OPINION

The Commission is of the opinion that the circumstances described in the question would not involve a violation of the Maine Bar Rules. It is the plaintiff class representatives who are the clients of the inquiring attorney in both the prospective class action and the matters for which legal fees have been paid by an agency of government. The government agency paying for the legal services is not a client. Moreover, allowing that government agency to direct or regulate the professional judgment applied to the rendition of legal services for the class representatives would violate Bar Rule 3.6(h), which provides:

**(h) Avoiding Influence by Others.** A person who recommends, employs, or pays a lawyer to render legal services for another shall not be permitted by the lawyer to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Since a conflict of interest arises out of an adverse effect on the exercise of a lawyer’s independent professional judgment in behalf of one client that is or could be caused by representation of another, the proposed class action would not involve a violation of Rule 3.4 for two reasons: no attorney client relationship exists between the attorney and the government agency paying for legal services, and; Rule 3.6(h) requires that the attorney not allow the exercise of professional judgment to be directed or regulated by the payor. This conclusion is reinforced by the attorney’s present arrangements for representation of individual class members in other matters. In the case described by the inquiring attorney, the same conflict on which the inquiry focuses would exist with respect to the very services the attorney has been paid to perform, since another agency of the same government is the opposing party in each case. The Commission agrees that disclosure to the client class representatives is required in the circumstances. Bar Rule 3.4(f); Opinion 63.


Enduring Ethics Opinion