SUMMARY
The landmark Navajo Nation Supreme Court case, In re Seanez, No. SC-CV-58-10 (Nav. Sup. Ct. Nov. 24, 2010), addresses the critical boundary between a government attorney’s duty to their client versus their overarching ethical obligation to the Diné People whom they serve.
As Legislative Counsel, Mr. Seanez had issued official legal memoranda advising the Navajo Nation Council that the Council could defy a settled Supreme Court decision. The Court ruled that while an attorney may zealously advise a client, actively counseling a governmental branch to override, ignore, or subvert binding judicial rulings constitutes an impermissible interference with the separation of powers and the rule of law. Referring to Federal Bar Association Ethics Opinion 73-1 (1973) which mandates the “public trust” model for government lawyers, the Court emphasized that Navajo Nation government lawyers serve the People and have a duty to the public trust. In this case, there was a failure of this duty, amounting to gross misconduct.
The Court initially ordered disbarment, but converted its ruling to temporary suspension since “permanent disbarment serves no healing purposes.” The Court stated it “will do what it can in an effort to turn [inharmonious words] into positive dew or corn pollen” and “applying the principle of baa hojoo bá’í yee’ for Mr. Seanez’s family and unilaterally playing what role we can in intra-governmental healing.” However, following subsequent reports of the unauthorized practice of law during that suspension, the matter returned to the Court, resulting in Seanez’s ultimate disbarment.
Key Takeaway for Government Practice:
The ruling underscores a foundational principle of indigenous jurisprudence: government lawyers do not serve to weaponize legal technicalities against the tribe’s own foundational laws. Their ultimate fidelity must be to the People.
Note: This effectively highlights the tension between adversarial Anglo-style maneuvering (trying to “win” a political dispute by advising a client to ignore a court) and the deeper requirement for structural harmony and balance within government systems.
This decision continues to be taught at Navajo Nation Bar Association Conferences with regard to ethical practice of Navajo Nation lawyers.
Below are excerpts from pages 5-7 of In re Seanez (CLICK HERE for the full opinion)–
IV. THE GOVERNMENT LAWYER
a. Duty to the Public Trust
“The government lawyer [4] has a duty “to exercise independent professional judgment and render candid advice” under Rule 2.1 of the Navajo Nation Rules of Professional Conduct. We note that the Federal Bar Association has taken the position that while the client is the agency where the lawyer is employed, the government attorney has a duty to the public trust. [5] Such a duty is consistent with our opinion in Shirley 1, supra, which noted that the Navajo Nation government is accountable to the People because the Council, in Whereas Clause 8 to the Title 2 Amendments of 1989, recognized the People as the source of governmental power. Id. at 25. The government lawyer must be independent, candid and neutral rather than partisan in order that the public trust is protected. For those like the Chief Legislative Counsel, whose formal opinions indemnify government action, the adoption of the adversarial approach accepted in litigation would be improper in every respect because of the duty to the public trust. Because the CLC and AG are in positions to issue binding opinions to branch players, it is imperative that their opinions be clear, accurate, thoroughly researched, soundly reasoned, and primarily in service of the public trust. Therefore, the government lawyer is not just an advisor but a gatekeeper as well.
In a government arena where entities frequently disagree on policy, it is the responsibility of government lawyers to focus on the public trust when rendering advice. This duty distinguishes the work of a government lawyer from legal advice given to private clients. While the private practitioner zealously advocates for his client, the government lawyer advocates for the public trust and is constrained by the public trust from wholesale support of any governmental client’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers might craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the obligation to the public trust. See, e.g., Principles to Guide the Office of Legal Counsel, U.S. Department of Justice, December 21, 2004, at 1. Government lawyers should take their client’s goals into account and “assist their accomplishments within the law” without seeking “simply to legitimate the policy preferences of the administration of which it is a part.” Id. at 5.”
4 “Government lawyer” as used herein also includes government advocates.
5 Federal Bar Ass’n Professional Ethics Commission, Opinions, No. 73-1 at 72 (1973)
RESEARCH NOTE on The Federal Public Trust Model
In the Federal Bar Association (FBA) Professional Ethics Commission, Opinions, No. 73-1 at 72 (1973), the FBA explicitly tackled the “Who is the client?” question for federal attorneys and concluded:
The client of the government lawyer is the agency where they are employed. However, the government attorney’s ultimate duty is to the public trust, which requires a higher standard of conduct than that of a private attorney to a private client.
The FBA used this “public trust” framing to carve out a massive exception to standard confidentiality. They argued that if an agency official is engaged in corruption or illegal acts, the government lawyer’s duty to the public trust overrides their duty of confidentiality to that specific agency official. Under Opinion 73-1, a federal lawyer is ethically permitted (and sometimes required) to blow the whistle outside the agency.
It is to be noted that numerous Navajo Nation programs are funded under P.L. 93-638 Contracts with the Federal Government, which require strict compliance with federal laws as they assume the delegated trust responsibility roles and duties of the Bureau of Indian Affairs (BIA). These trust responsibility duties are primarily defined by the BIA, and are contained in the scope of work of these “638 Contracts.” See Navajo Nation and BIA Contracted Duties and Laws.
The 1868 Navajo Treaty serves as the foundation for the BIA’s duties. Crucially, matters not explicitly covered in the Treaty—such as language preservation, local governance innovations, community practices, and the holistic support of familial units—do not come under the umbrella of 638 contracts.
Because these “638 Contracts” have served as the Navajo Nation’s primary operational guidelines across so many programs for decades, roles and duties extending beyond BIA-defined trust responsibilities are likely not contemplated.
⚠️ The Critical Risk: Decades of performing these specific functions mean there is a significant risk that the term “public trust” is being misidentified or restricted solely to those narrow, federal, contract-based duties.
b. Duty of Greater Candor
“The obligation to comply with the entirety of our laws apply with special force in instances where advice is unlikely to be subject to review by this Court, and where such advice bestows on government officials what is effectively an advance pardon, as in formal legal opinions issued by the CLC or Attorney General. We note that the federal courts have frequently observed that government has an overriding obligation to see that justice is done, and that such an overriding obligation imposes an expectation of even greater candor on government counsel than attorneys representing private parties. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935). Guidance with respect to the special priorities of a government lawyer is further provided by the Harvard Law Review Association in Conflicts of Interest and Government Attorneys, 94 Harv. L. Rev. 1413 (1981), which continues to influence government ethics today. Otherwise, the legal standards, including the rules of professional responsibility that apply to all Navajo Nation practitioners, also apply to government lawyers.”
c. Duty Regarding the Laws of all the People
“A lawyer working for the People is a leader who should be further guided as follows:
Diné bá nijigháao, bá naat’áanii jíliigo éí bá dóó bil nidajilnishígíí Diné bibeenahaz’áanii bee bich’i’ yájílti’ dóó bee nazhnitin dooleel; azhashii doo yídínéelnáada ndi, áko Diné binant’a’í dóó bá bee agha’diit’aahii jíliigo ei Diné t’áá náhwiist’áánt’éé bibeenahaz’áanii hol niliigo baan tsíjíkees dooleel.
As a representative of the People, a leader for the People, and also for those you work with, you must advise and teach them of the laws of the Diné, even though they might not agree with the law; therefore, to be a leader and lawyer for the People, one must use and respect the laws of all the People.”
d. Duty Regarding Political Pressures
“Government lawyers in upper level positions such as the CLC who are directly engaged in governmental policymaking must deal daily with political pressures from his or her client in a setting where institutional opinions, unlike mere legal advice, serve as get-out-of-jail free cards for government action. There will be many times when policymakers will bear on their lawyers to arrive at results that support their positions, to exclude from the results laws or provisions conflicting with the policymaker’s positions, or otherwise to come forward with reasons to justify defiance of those laws. Such political pressures do not relieve government lawyers of their duty “to exercise independent professional judgment and render candid advice” under Rule 2.1 of the Navajo Nation Rules of Professional Conduct. We note also that the ABA Committee on Ethics and Professional Responsibility has written, in Formal Op. 85-352 (1985) that “in the role of advisor, the lawyer should counsel the client as to whether the position is likely to be sustained by a court if challenged.” This ABA opinion dovetails with 7 N.N.C. §206 which requires that government cooperate with the courts and do not obstruct, interfere with, control, or influence court functions. Omitting likely issues to be faced in court, including the consequences of defiance of court orders, opens the door to unnecessary conflict and bears on the respect of the justice system as a whole, particularly when binding advice is issued extra-judicially through the assistance of government lawyers. Under all circumstances, it is the heightened duty of the government lawyer to be independent, candid, neutral rather than partisan because of their duty to the public trust, and most of all thorough in their analysis.”
e. Duty Regarding Intra-Governmental Conflict
“We note collaterally two recent instances, involving Mr. Seanez, in which lack of thoroughness in formal legal opinions helped create or prolong situations of intra-governmental conflict. We refer to these instances here in order to emphasize the need for thoroughness in the work of government lawyers, especially the work of the CLC, whose work product is not checked by anyone prior to issuance as formal opinions. The two situations set forth below have played no part in this Court’s determinations in this case and are included here as cautionary illustrations.
The first instance concerns recent upheavals at Diné College. 10 N.N.C. §2003(A) prohibits government officials from interrupting the day-to-day activities of the Board of Regents of Diné College. However, on May 5, 2010, Mr. Seanez issued Opinion No. CLC-02-10 which concluded that the Government Services Committee of the Navajo Nation Council has near absolute power of removal over members of the Diné College Board of Regents without accountability, even when exercise of the removal power effectively disables the board. Mr. Seanez’s opinion entirely failed to reference Section 2003(A) above. See Ferlin Clark v. Diné College, SC-CV-25-10, slip op. at 9 (Nav. Sup. Ct. October 27, 2010). The harms flowing from this situation are evident to the Navajo People, with unrest at the College continuing to the present day and with a new generation of students apparently convinced that strong arm methods as used by the Council are proper, rather than our traditional methods of talking things out.
The second instance concerns the process required for measures to be referred to the public for approval. Mr. Seanez issued Opinion No. CLC-04-10 which caused the law of referendum measures suddenly to appear unsettled following many years of settled practice of the Council that such measures must first be reviewed by the President [emphasis added]. On November 1, 2010, Mr. Seanez’s opinion was effectively overruled by the Window Rock District Court on the basis that our statutory laws, read comprehensively, clearly require the President’s review. Office of the Navajo Nation President and Vice-President v. Navajo Nation Council and NBEA, WR-CV-13 304-2010 (W.R. Dist. Ct. November 1, 2010). Reliance on Mr. Seanez’s opinion caused public confusion, undue and great expense, and more intra-governmental litigation.”
Revised June 23, 2026