The Standing Committee of the ABA issued a formal Opinion regarding Government Lawyers’ Obligations When Knowing of a Public Official’s Intended or Ongoing Violation of the Law.  In sum:

“Model Rules of Professional Conduct 1.13(b) and (c) guide lawyers employed or retained by an organization when they know of intended or ongoing violations of law or other legal obligations by representatives of the organization that, depending on the circumstances, are likely or reasonably certain to result in “substantial injury to the organization.” With respect to Government lawyers, a violation of a legal obligation or of law by an officer or employee of a government organization will be “imputed” to the organization if the officer or employee is using or misusing authority that the officer or employee possesses by virtue of their employment with the government. For purposes of these provisions, any violation of a legal obligation to the government organization or violation of law that reasonably might be imputed to a government organization will cause “injury” to the organization within the meaning of the Model Rules – given the government’s obligation to support, defend, and promote the rule of law. The government lawyer should exercise reasonable judgment regarding whether that injury is “substantial” and whether that injury may therefore trigger the permissive or mandatory reporting provisions of Model Rules 1.13(b) and (c).”

More specifically:

“Two threshold questions raised by this scenario must be considered by a lawyer retained or employed by the government. First, there is the question whether the lawyer is employed in a representational capacity. As in private organizations, lawyers in government may serve in various roles, not all involving a lawyer-client relationship. A lawyer retained or employed by the government may hold a position that does not involve serving as a lawyer for the government organization as a client. To the extent the lawyer is not acting in a representative capacity, the rule governing a lawyer-client relationship, including Rule 1.6 and Rule 1.13, do not apply. Whether the lawyer serving in a nonrepresentational capacity may or must disclose information about government illegality to authorities in the government organization or to others may be dictated by internal regulations or other law, but it will not be dictated by Rules of Professional Conduct governing the lawyer-client relationship.

“The second threshold question will be: who is the client? Where the lawyer is serving in representative capacity as a lawyer for a government organization, then the lawyer is subject to the rules governing the lawyer-client relationship, including Rule 1.13. The client’s identity may not always be obvious and is an issue beyond the scope of the Model Rules. Government lawyers can represent a government entity as a whole (e.g., the United States of America, a particular state, or a particular town or county), or a branch of government (e.g., the executive branch, the legislature, or the judiciary), or one or more government agencies. The question is important in this context, in part, because Rule 1.6, the confidentiality rule, restricts a lawyer from disclosing information relating to the representation of a client to third parties without the client’s informed consent, but it does not restrict the disclosure of such information to the client. On the contrary, in many situations, the lawyer has an obligation to disclose information to the client. In the case of an organizational client, the lawyer’s disclosure of information relating to the representation to others within the organization does not necessarily implicate or run afoul of Rule 1.6. It is important therefore to identify the client in order to know whether another person is an officer or employee who can be considered a non-client constituent of the client organization.

“Under the Model Rules, a lawyer representing a government organization who learns of misconduct may always raise the issue within the organization, consistent with Rule 1.4 and Rule 2.1, which address the lawyer’s communications with, and advice to, the client. This is true even if the lawyer suspects but does not ‘know’ of wrongdoing that falls within Rule 1.13(b). A government lawyer may (and perhaps in some cases, must) go up-the-ladder (i.e., report to higherups within the organization), even when Rule 1.13(b) does not require it, because reporting up-the-ladder does not disclose protected information to a third party and therefore does not require the client’s informed consent or implied authorization….

“For a government organization, as with a private organization, ‘injury to the organization’ may include something other than direct financial injury. For example, a violation of a legal obligation or violation of law that subjects the organization to legal liability would likewise cause injury, and perhaps ‘substantial’ injury, even if financial damages will not ensue. Similarly, a constituent’s violation of a legal obligation to the organization may be considered to have resulted in substantial injury to the organization even if the direct financial damages are immaterial. Reputational harm may also constitute injury for any organization, and, if serious enough, may constitute ‘substantial’ injury.

“When assessing whether a violation may cause injury to the organization, government lawyers are differently situated from lawyers representing private organizations because of the unique interests and obligations of the government. In the case of a government organization, the term ‘injury’ should be construed broadly to include harms in addition to financial and other harms that are likely to be more relevant to private organizations. Unlike a private organization or entity, a government entity’s interests are not primarily financial ones. In particular, the lawful functioning of government should be at least as significant to the government organization and to the public officials who run it or oversee it as the government organization’s financial interests. Government organizations have a significant interest in the fair administration of justice and in protecting and preserving the rule of law. The government must set an example, itself complying with the legal obligations, even seemingly minor ones, that apply to it. As Justice Brandeis put it: ‘If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ Thus, in the context of representing the government, the word ‘injury’ includes harm to the rule of law.

“The credibility of government depends on its own compliance with the law. And the rule of law presupposes that no one – and no organization – is above the law. For these reasons and more, a violation of law that is imputed to the government organization – in other words, government lawbreaking or lawlessness – causes injury not only to any third parties who are victims of the violation, but also to the public’s trust in government, and ultimately to the government

organization itself. Given the opportunity, public officials in authority should ordinarily be expected to address violations of legal obligations or of law that would be imputed to the government organization, even if the direct legal consequences to the organization would be insignificant. As a consequence, Rule 1.13 may impose more demanding disclosure obligations on government lawyers than on lawyers for private organizations.

“As is the case for a lawyer representing a private organization, determining whether an injury is ‘substantial’ will require a government lawyer’s exercise of reasonable professional judgment based on all the relevant facts. For a government organization, as for a private organization, Rule 1.13(b) or (c) may be triggered if direct financial injury caused by a violation of law is ‘substantial.’  However, unlike in the private sector, in the context of representing the government, a relatively small financial loss may cause ‘substantial injury to the organization.’ ‘The public interest in the integrity of government may reasonably lead a lawyer to conclude, for example, that misappropriation of a small sum warrants remedial action for the government that might not be warranted for a nongovernmental client.’ The term should be interpreted and applied in light of Rule 1.13’s purpose, which is to require or authorize disclosures necessary to protect the organizational client from substantial injury.  ‘Government lawyers bear special obligations because of the responsibility to maintain public trust in government,’ so the focus should be on whether the injury is significant enough that a higher authority within the organization (in the case of Rule 1.13(b)), or an authority outside the organization (in the case of Rule 1.13(c)), should reasonably want to know the information and reasonably be expected to act on it to protect the organization from being injured by the wrongdoing.”

 

ABA Opinion No. 524  (July 22, 2026)