When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in (Section) 1983 Litigation

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NOTE CONTENTS

INTRODUCTION

I. THE PROBLEM OF CONFLICTS OF INTEREST IN DUAL REPRESENTATION OF
   MUNICIPALITIES AND THEIR OFFICIALS
     A. The Municipal Liability Landscape
     B. The Conflicts of Interest in Municipal Dual Representation
        1. Model Rule 1.7(a) and Concurrent Conflicts of Interest
        2. The Incompatible Defenses
        3. Problems Associated with Rectifying a Concurrent Conflict
             of Interest
     C. Municipal Attorneys' Temptations and Pressures To Favor
         Municipalities over Municipal Officials

II. EXISTING APPROACHES TO ADDRESS THE CONFLICTS OF INTEREST
     A. Description of Existing Approaches
        1. The Per Se Ban Approach
        2. The Wait and See Approach
        3. The Align the Interests Approach
        4. Ex Ante Specific Waivers
     B. Weaknesses in Existing Approaches

III. PROPOSED APPROACH

CONCLUSION

INTRODUCTION

Constitutional tort litigation pursuant to 42 U.S.C. [section] 1983 has generally increased over the past forty to fifty years, (1) particularly after the Supreme Court's decisions in Monell v. Department of Social Services and Owen v. City of Independence. (2) These decisions authorized and expanded, respectively, the liability of municipalities under [section] 1983. Plaintiffs can now bring claims against municipal officials or municipalities themselves for constitutional violations committed under color of law, and frequently they bring claims against both. (3) One empirical study finds that approximately 82% of constitutional tort cases involve multiple defendants, (4) which usually means a government entity has been sued along with one or more of its officials. That statistic is consistent with the experiences of an attorney in the New York City Law Department, who reported that out of approximately 1250 [section] 1983 lawsuits then being handled by the Department's Special Federal Litigation division, the vast majority named the City and one or more officials as defendants. (5)

Because many of the same facts and elements relate to [section] 1983 claims against municipalities as to [section] 1983 claims against municipal officials in their individual capacity, the same legal team frequently will defend both a municipality and its official in a [section] 1983 case. (6) This dual representation creates significant potential for conflicts of interest to arise between the municipality as an entity and its individual officials.

The courts that have recognized this issue have seen it as a powerful problem. Thus, a number of courts have called for special sensitivity to the risk of conflicts of interest in [section] 1983 suits in which a municipality and its official are dually represented by municipal attorneys. (7) Several courts have noted that the threat of a conflict of interest is inherent in [section] 1983 cases because of the incompatible defenses that can be asserted by the municipality and by its officials; (8) a few even call the threat "imminent" and "serious." (9)

The consequences of these potential conflicts of interest may be severe. When plaintiffs recover damages in [section] 1983 actions, the awards can be staggering. (10) Even settled cases generally result in damages. (11) And even if compensatory recovery against a municipal official is lower than it would be against a municipality, (12) officials still must worry about the possibility that the jury will award substantial punitive damages against them. (13) Moreover, when a plaintiff sues a municipal official in his individual capacity, courts levy the damage award against the official's personal assets; (14) a single finding of liability under [section] 2983 can bankrupt an official. (15)

With such high amounts at stake, there can be great temptation or pressure for a municipal attorney to favor one or the other of her clients when their interests come into conflict. In light of the strong relationships between municipal attorneys and municipalities as compared to those between the attorneys and individual officials, municipal attorneys not infrequently may favor the municipality's interests despite ethical obligations to do otherwise. …