In strengthening enforcement of the federal Fair Housing Act, Congress in the 1988 Fair Housing Amendments Act ("FHAA") authorized government lawyers from the Justice Department, the Department of Housing and Urban Development, and state and local civil rights agencies to prosecute cases "on behalf of” persons aggrieved by housing discrimination. This new enforcement scheme has led to a heightened level of administrative complaints and litigated cases in which government lawyers are put in the potentially difficult position of having to represent both their agency and private complainants.
The "triangular" relationships created by the FHAA between government lawyers and their public and private "clients" is not unique to fair housing enforcement, but such relationships—whether they occur in private or governmental practice—are always problematic for lawyers. The problems in fair housing enforcement are made more difficult by the fact that Congress provided virtually no guidance as to how government lawyers are to resolve these problems when a divergence of interests does arise between their employing agency and their private "client."
Experience has shown that these potential conflicts may be quite real in individual cases. When a divergence of interests has occurred, government lawyers invariably have chosen to continue representing their public clients while abandoning the private complainant. This result may leave victims of housing discrimination with less protection than Congress envisioned.
This Article analyzes how the rules governing professional conduct operate in analogous triangular relationships and then offers some insights as to how the particular problems created by the administrative enforcement scheme of the 1988 FHAA might be approached in light of these rules.
Eugene R. Gaetke & Robert G. Schwemm, Government Lawyers and Their Private “Clients” Under the Fair Housing Act, 65 Geo. Wash. L. Rev. 329 (1997).