Ldf Provides Coverage in Civil Cases Where a Clear Conflict of Interest Exists

Posted by Joy C. Rosenquist

Individual officers are often named in civil lawsuits, along with their employer — the city, county, state, or federal, and the Sheriff or Chief of Police. The individual officers are often named because they were the person involved in the face-to-face confrontation with the plaintiff, whether it be the family of a decedent involved in an officer involved shooting, or the purported victim of excessive force. Civil lawsuits involving individual officers are typically filed in Federal court, in which the plaintiff will allege a violation of Federal law, which states the plaintiff has been deprived of his civil rights due to the officer’s and employer’s actions.

Although these claims are rarely successful before a jury, it sometimes forces the employer to choose sides. In that case, a conflict of interest will arise between the employer and the officer. Once the employer is sued and everyone is served, the employer will tenders the lawsuit to their insurance carrier, which hires a standard “panel counsel” lawyer to represent the employer and the individual officers.

The employer, by law, must provide representation to the officers. While the attorney often can represent the employer and the officers without conflict, as they all have the same goals and defenses in the lawsuit, occasionally a conflict might arise between the officer and the employer. In such a case, the attorney will likely make the employer their priority and worry less about the individual officer. This places the officer in a dilemma. Who does he trust? Can he get honest individual advice, even if it is contrary to the best interests of the employer? The employer may attempt to place the officer’s actions on an “island” to distance itself from the officer. In such a situation, LDF will provide the member officer with his or her own panel civil attorney to look out for their best interests in the case.

If you are sued or believe you are going to be sued for excessive force, or any other civil matter, you should contact LDF immediately. In reviewing the case, if LDF determines that a potential conflict of interest exists between the individual officer and his or her employer, LDF may assign personal counsel to the individual officer(s). Similarly, if there appears to be a considerable likelihood that punitive damages might be awarded against the officer (for which the officer will be held personally liable), personal counsel will be assigned to the officer. There are valuable benefits to having personal counsel available:

1. Prevent Excessive Discovery. In a recent case involving Siskiyou County, the heirs of a decedent sued the Sheriff, two deputies and the County for the loss of their son in an officer involved shooting. The County is represented by their standard panel attorney, who went through the ordinary steps in defending multiple clients. LDF determined the officers needed personal counsel and assigned the law firm of Goyette & Associates, Inc. to provide representation to the individual officers, to guide them through the litigation process and represent the deputies, and only the deputies. In that case, personal counsel was involved in decisions regarding which parts of the deputies’ personnel file to disclose, or not disclose. Counsel was also involved in protecting the deputies, should they need to testify in deposition or trial. Plaintiff’s counsel demanded the psychiatric and fitness for duty records of both deputies. When panel counsel wanted to turn them over voluntarily, to avoid a battle, personal counsel for the deputies refused and successfully prevented the plaintiffs from obtaining the records. This was a victory for the deputies, who clearly did not want their psychiatric and fitness for duty records available to anyone, especially the heirs of the decedent – members of the community they police.
2. Mediation Representation and Settlement Advice. Often, mediation will occur towards the end of discovery, but before trial. The mediation is a crucial place where conflicts of interest come to the forefront. It is imperative that personal counsel be in attendance for the deputies in such a situation. The sheriff and county are represented by an attorney, and usually in attendance are the insurance carrier representatives, who have the money to settle. Having personal counsel represent the officers, and be in attendance at depositions and mediations, changes the tone of these events to a light more favorable to the individual deputies. It shows they care about their place in the litigation. Mediation can be full of land mines. For example, depending on the type of settlement, an officer may be asked to consent to a judgment being entered against him. The county will usually consent to the judgment because they are paying the judgment in its entirety, with their settlement funds. However, individual officers certainly do not want a judgment entered against them, personally in their name, as it could affect their credibility as law enforcement officers, and could expose them to liability further down the road. However, absent personal counsel, individual officer defendants may not have any idea that they are being asked to sign such a document, as they can masquerade the end result under “legalese” the officers do not understand.
3. Avoid Exposure. In addition, having personal counsel in attendance, both at depositions and mediations, reminds the employer that the officers are owed a good faith defense. The employer has a legal obligation to avoid potential exposure to the individual defendants, otherwise the county may face a bad faith claim. Occasionally, the officers may need a legal representative to explain to the employer that unless they settle the potential claims against the individual officers, should the officers be found liable to the plaintiffs, the officers will tender the judgment back to the employer, arguing the employer should have settled when they had the opportunity.
4. Negotiate Settlement Terms. Long after mediation is successfully completed, a settlement agreement will be circulated. Personal counsel for officers will carefully review the settlement agreement. Counsel can negotiate inserting a confidentiality clause, which prevents both sides from speaking about the settlement agreement. This prevents further derogatory comments against officers, not only from the plaintiffs, but from others in the community who may have heard about the settlement. To ensure that everybody abides by the strict confidentiality clause, personal counsel will also negotiate inserting a penalty provision, which serves as a monetary punishment in the event plaintiffs breach the confidentiality of the agreement.
5. Attorney-Client Confidentiality. There are many other benefits to having personal counsel available to individual officers during stressful litigation times. Attorney/client communication is a key example. Any information or conversations between the individual officers and personal counsel are strictly confidential and cannot be disclosed to the employer. However, there is no individual attorney/client privilege when the attorney for the employer represents the employer, chief or sheriff, and individual officers. Officers would not be able to convey information to their attorney, without the employer knowing about it, if they share the same attorney. However, when the officers have personal counsel, they will receive honest legal advice, without the information ever being passed to the employer. At times, the attorney’s advice may be contrary to the employer’s interests, something which officers would be hard-pressed to receive from an attorney representing both the employer and the officers.
6. The Sooner the Better. Many times, before I have entered an appearance for the individual officers, I have found that the attorney for the employer has very quickly turned over too much information to the plaintiff and deadlines may have been extended unnecessarily, to the benefit of the plaintiff. Having personal counsel enter the case as soon as possible prevents too much information being turned over to plaintiff’s attorney from the officers’ personnel files.

Joy C. Rosenquist is an associate with Goyette & Associates. She represents clients in all aspects of administrative, criminal and civil litigation.