Cooperation and Conflict Between Local Government's General Counsel and Civil Litigation Defense Counsel

• Publication year: 2002
• Pages: 109

31 Colo.Law. 109 Colorado Lawyer 2002.

2002, January, Pg. 109. Cooperation and Conflict Between Local Government's General Counsel and Civil Litigation Defense Counsel

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109

Vol. 31, No. 1, Pg. 109

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 109]

Specialty Law Columns
Government and Administrative Law News
Cooperation and Conflict Between Local Government's General Counsel and Civil Litigation Defense Counsel
by J. Andrew Nathan, Tami A. Tanoue

Conflicts can be inherent between a local government's general and defense counsel. This article highlights some contexts in which problems commonly arise and provides practical suggestions for resolving or reducing tensions

This month's article was written by J. Andrew Nathan Denver, a partner with Nathan, Bremer, Dumm & Myers, P.C - (303) 691-3737, and Tami A. Tanoue (not pictured), Denver, a partner with Griffiths, Tanoue, Light, Harrington & Dawes, P.C. - (303) 298-1601.

Most local governments are represented by general counsel, such as a city, town, or county attorney. Local governments also use the services of defense counsel, who are retained (or assigned by an insurer) to handle civil litigation matters. Although general counsel and defense counsel generally represent the same interests, due to counsels' different responsibilities and viewpoints, conflicts can arise in the course of defending and resolving civil claims.

Counsels' Different Roles

Tensions between the general and defense counsel in the defense of a civil claim are natural, given differences in their respective roles, as well as the nature of the relationship that each maintains with the local government client. Understanding these differences can help the respective counsel in achieving their mutual goal of effective service to the client.

General Counsel's Role

The general counsel typically forms and maintains a long-term relationship with the local government client. Particularly if the general counsel has enjoyed a long tenure with the government, he or she will be familiar with the government's operations and will be involved in advising elected officials and management staff on day-to-day and long-term issues of policy, management, and administration. From the general counsel's perspective, it is important to assess both the details of a particular civil claim, as well as the larger context in which the claim exists.

For governmental entities, any given claim may raise a myriad of public policy, political, and citizen relations issues. The handling of a claim (such as settling it for a large sum of money) may send a negative message to the public, thus affecting public confidence in the government and its officials. The handling of a claim can influence employee morale and affect the ability of management officials to supervise and discipline personnel. Particularly with self-insured governments, impacts on budgets and services must be taken into account.

The general counsel must consider where a particular claim "fits in" with past, pending, or future claims of a similar nature. The manner in which a claim is handled may inhibit or encourage the filing of other claims that are "waiting in the wings." For example, one citizen's complaint of police brutality may open the door to other "me too" complaints. The settlement of a particular claim may be perceived as establishing a "floor" or "ceiling" for the settlement of other claims.

Defense Counsel's Role

In contrast to the general counsel, the defense counsel is focused on creating the best factual and legal setting in which to defend a particular claim. Defense counsel may be relatively single-minded in focus, analysis, and strategy involving a particular civil claim. Defense counsel's goal is to avoid the claim, settle it on terms that best serve the client's interests, or win the lawsuit.

The defense counsel typically serves multiple...