Public lawyers seek flexible rules by Nancy McCarthy Staff Writer

CLARA SLIFKIN

Attorneys who work for the government sometimes face issues so different from private lawyers that they may seek changes in ethics, dues and MCLE rules to address their concerns.

"We'd like the rules to be more flexible when it comes to government lawyers who represent a governmental entity," says Clara Slifkin, a deputy attorney general in Los Angeles who works in the land law division.

Slifkin also heads a State Bar task force appointed to examine issues faced by public and government lawyers.

Changes sought

At a forum last fall, participants considered asking the bar to change:

• Ethics rules regarding conflicts of interest and the question of who is a public attorney's client.
• MCLE rules, which exempt state and federal attorneys. Because they are exempt, those lawyers also cannot perform pro bono work.

Slifkin pointed to two ethical issues government attorneys often face: the question of who is the client and appearances of a conflict of interest.

Ethics rules state that an attorney cannot represent two clients where there is an appearance of a conflict. Because public attorneys often represent multiple state agencies, "other people might see that as a conflict of interest," Slifkin said. "But it's not necessarily a conflict for government lawyers."

Ethical dilemma

The question of "who is the client?" also can be an ethical dilemma for a government lawyer, she said. The client may be a public entity, such as a city council, or a member of the entity, or a public agency or the head of the agency, or it may be the public or the public interest.

"That is an important issue that the Rules of Ethics don't necessarily address and it's really a particular problem with public lawyers," Slifkin explained.

A particularly controversial issue for government lawyers is their exemption from MCLE requirements. When the legislature approved MCLE rules in 1990, it exempted full-time employees of the federal and state government.

As a result, however, those lawyers cannot perform pro bono work. A bar Board of Governors committee was to consider a proposal at its January meeting (after the Bar Journal's deadline) to permit state and federal attorneys to do pro bono work for a legal services program which receives trust account funds.

The proposal is favored by the Association of California State Attorneys and the bar's Legal Services Section. A recent survey by the Association of California State and Administrative Law Judges found that 1,000 state attorneys would be willing to perform pro bono work if they could remain exempt from MCLE requirements.

MCLE exemption

Slifkin, who says she would like to perform pro bono work, also believes government lawyers should have the same MCLE requirements as the rest of the bar. "Most of us don't want to be exempt because it makes us look like second class citizens," she says.

Many public attorneys oppose the law practice management component of MCLE requirements as irrelevant to them.

Government attorneys also expressed mixed feelings at the fall forum about the possibility of a tiered dues structure with a break for public lawyers.

The paycheck

Several expressed discomfort about the financial status of sole practitioners and public interest lawyers, many of whom earn less than government lawyers.

The bottom line, Slifkin said, is both increased recognition and inclusion of government lawyers by the bar leadership. "Perhaps the bar's greatest contribution," said one forum participant, "would be to lobby for more resources and higher pay for all government attorneys."