Lawsuits Against LEOs: Should You Bring Your Own Lawyer?

When a LEO is sued, he is usually defended by the city attorney, the county attorney, the attorney general’s office or by a law firm selected by his agency to handle the case. Those lawyers represent two clients; the government that you work for and you. As long as your interests do not conflict with your employer’s interests, the same lawyer can represent both you and your employer. However, when a conflict arises, you must have your own independent attorney.

“A lawyer shall not represent or continue to represent a client if there is a significant risk that the . . . lawyer’s duties to another client . . will materially and adversely affect the representation of the client.” “Loyalty is an essential element in the lawyer’s relationship to a client.” So begins Rule 1.7 of the Georgia Rules of Professional Conduct and Comment 1 to same rule.  These rules govern the conduct of attorneys as they represent clients. Simply stated, a lawyer must provide independent representation to clients.

So how does this affect LEOs involved in litigation? Well, despite all the lawyer jokes you’ve heard, lawyers must follow a strict rules when it comes to situations involving multiple clients with conflicting interests. These conflicts typically arise three ways. First, if the LEO is sued and she violated departmental policy. Second, if several LEOs are sued and they have conflicting defenses. Third, if the inquiry raised by the lawsuit becomes criminal or begins in internal investigation. In these situations, the lawyer representing the LEO and the agency must decide if he can continue to do so.

For example, do not expect the attorney provided by your agency to represent you before a grand jury looking into your use of force or during a criminal inquiry by the federal government for a civil rights complaint. The attorney representing your agency simply cannot offer independent advice to you in these situations because the outcome could adversely affect your agency.

Sometimes, the conflict of interest is more subtle. What if three officers faced an armed subject at similar distances and only one used deadly force? While this may not indicate that the one officer acted improperly, it could create a conflict that requires that officer to have his own attorney.

Here is the take away for LEOs.

1. Do not expect the lawyer provided by your agency to represent you in any criminal inquiry or during an internal investigation;
2. Ask the attorney appointed to represent you if she believes there is a potential for a conflict of interest now or later in the case; and
3. Consult your own attorney early in the process to get independent advice about conflicts of interest and to allow him to step in should a conflict arise later.

Hiring your own lawyer could be expensive, but going without one could be could be devastating. If you have a professional liability insurance policy or a pre-paid legal membership, carefully read the provisions to find out when they will provide an attorney for you. If you are a member of the Fraternal Order of Police, your lodge may provide an attorney. You can also participate in the FOP Legal Defense plan. Go to www.georgiafop.org or www.grandlodgefop.com for more information.

Stay safe.