One of the things I have learned in approximately 30 years involved in Federal Indian Law is that Tribal Leaders don’t like to be told “no” or “that wouldn’t work because” or “that might not be legal” or “you probably shouldn’t do that” or “here are the real risks." If you want to survive as an “out-house” attorney, you have to develop the ability to dance around on top of a knife and say “no” as nicely as possible. That is true in a lot of situations in life when people don’t want to hear that they may not be “quite right” or they want you to tell them “what they want to hear” as opposed to what they should hear. People tend to want to “shoot the messenger” for saying “the emperor is naked” when everyone else is telling the Emperor “what fine clothes you have”.
The dance I just mentioned is particularly intense when you are an in-house legal counsel, as you may get summarily fired if you don’t go along to get along with the Chairman or Corporate Boards or Managers. Of course you have to be extra diplomatic and say “you can try it but here are the risks”. Sometimes you have to make the professional choice of whether you can continue to work for that client if they do what you are advising them not to do. Sometimes that choice is made for you by the Ethical Requirements of whatever State Bar (and Tribal Bar) in which you may be a member. These Ethical Requirements have to be followed in the jurisdiction you are Barred in, but also apply when you work with a client in another jurisdiction, even Tribal. You cannot commit an Ethical Violation in another jurisdiction that would be an Ethical Violation in one or more of the jurisdictions in which you are licensed.
It can be an Ethical Violation, and you can commit Legal Malpractice, if you fail to warn your client of consequences (even potential ones), especially if it is an area where the legality of the activity can be questionable. If your client is “fully informed” and takes the risk, you cannot be held liable, but you also have to make sure that you are not open to any criminal accusations as a “participant” or as a “co-conspirator” who is benefiting from what may be an illegal scheme. Sometimes, the people you advise may not only be sued but they could be held criminally liable for their activity for which you provided advice. As long as you advised them of the known and potential risks, you may have a defense to accusations of Malpractice. This is particularly true if the advice on the activity is premised on an “undeveloped” area of law or is a case of first impression that appears to be legally defensible under the law as it exists at present and your analysis of the direction(s) towards which the law appears to be progressing. You also must keep your client advised of new developments and the implications on what the client is doing or proposing to do. Sometimes your client may want to engage in an activity for the purpose of “civil disobedience” if they believe the law, or it implementation, creates an injustice, or even to mount a legal challenge to something the Federal Government or State Government is doing or not doing or to challenge a State or Federal position that your client is engaging in activity not authorized by law.
That is fine, and is one way law is developed. However, full disclosure of consequences, real and potential, is required. But, where potential criminal liability may attach, the lawyer may find herself under indictment for furthering a criminal activity or sued for malpractice because they didn’t warn them fully of the consequences of their actions. (e.g. Your Tribal Client wants to grow Marijuana in a State that permits either medicinal or recreational use and you don’t advise the client that it may still be a violation of “Federal Law” with both civil fines and criminal liability.)
If your representation involves “serving two interests” who may have potential “conflicts of interest”. There is a danger in giving advice if the two interests you are representing do end up in opposition of each other and/or in Litigation. Some of these conflicts are resolvable by “complete disclosure in writing to the client or clients”. Some of these conflicts are “disqualifying conflicts” from which you must either step away or represent only one of the two interests if to do so does not harm the interests of the other. You are especially on infirm ground if “you”, the legal representative, takes an interest in the activity, such as a percent of revenue, or become a holder of a share of the business, or your Legal Counsel Agreement entitles you to same. Of course, that also makes you a “participant” in the eyes of the law, and sometimes, a conspirator or co-conspirator. It is not illegal to take an interest in a client’s business for payment, with some exceptions (Taking an interest in a percent Gaming Revenue for your representation is one that is prohibited by statute.), but both you and the client have to discuss, and sometimes memorialize in writing, that you are taking a piece of the action as compensation and this creates potential conflicts of interest, and if the potential conflict of interest becomes real, you can’t represent them. Even where the Tribe is working with an “investor or developer” and you know your fees are being paid though the Tribe for your representation of the Tribe, it is best to have the client sign off on a written disclosure to “avoid the appearance of impropriety” or any future accusation that you failed to advise the client of your knowledge of the potential conflict and didn’t tell them and your representation was compromised by your interest in keeping the money flowing.
Sometimes, I will write columns that make Tribal Leaders or their Attorneys mad because I feel there is some danger to Indian country and Tribal Sovereignty in what they are doing, or I see any issue with the Attorney’s activities that presents a danger of less than zealous or “compromised” representation. Sometimes that danger is real, in the sense that what they are doing is subject to on-going legal challenges that may not only be harmful to the Tribe, but harmful to, and damaging to Tribal Sovereignty in general. Most of the time I offer my two cents on how to fix it or mitigate the harm and I usually caution them to consult their Legal Counsel, but it is up to the Tribes to determine whether they may need Independent Legal Counsel, other than the those that advised them in the activity for which they are now being challenged.
Recently I was accused of making a “false statement” or misrepresentation in one of my columns. However, the accusation was based on “assumptions” about what I said and not what I said. What I said was true and there were witnesses to it, including the law firm I got the letter from and their clients. It was clearly an attempt to intimidate me and silence me and/or deflect criticism from themselves with regard to the subject matter of the column. I guess I could have called them and asked them to comment before I wrote, but it was not a news story, it was “commentary”, but even then I base my commentary on facts. If I am shown to be factually incorrect, I will be the first to admit it. There was no malice on my part certainly for simply relating some things that factually exist and are on public records and court records. My purpose is/was to protect Tribal Sovereignty, as always. If someone’s self-interest is harmed by “public knowledge” of what is on record, and the potential harm to Tribes involved, that is not a valid reason for withholding that factual record from the public.
I will continue to write about issues and activities in Indian Country that I see as potentially harmful to Tribes and Tribal Sovereignty, having been a champion of Tribal Sovereignty for most of my adult life, notwithstanding intimidating or threatening communications from wealthy Tribes and/or their Lawyers. I suppose they could sue me, if they feel justified, but they’d be trying to squeeze blood out of a turnip. I will continue to lay out the issues and suggest solutions based on the facts that exist. I intend no malice to Tribes when I may critique what they are doing, and there is certainly no malice in laying out the facts as they exist, no matter who may be offended by my making those facts public. Tribes do not live on an island in a bubble, they exist in a reality where what they do may affect all other Tribes and all Tribes’ Sovereignty. That is a fact. That is reality.
Harold Monteau practiced Federal Indian Law for almost 30 years and now is a Consultant to Tribes and Tribal Businesses on Economic Development and Financing Economic Development. He writes from New Mexico and can be reached at email@example.com or on Facebook.