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In Baltimore County, A Chinese Wall Is Not the Answer
Thursday, December 16th, 2010
Robert Wechsler
Chinese walls, that is, ways to separate an official from a matter as to which he has a conflict, are a perfect way to appear to be responsibly handling a
series of possible conflicts, but are these walls great or are they
window dressing? And even if the walls truly work, are they enough to
deal responsibly with a series of possible conflicts?
I wrote a blog post on Chinese walls back in March, but I used examples from the federal and state levels. I mentioned a supposed Chinese wall in San Diego back in 2008, but mainly to show how officials were in denial. A nomination for a position in Baltimore County provides a good local government example of a Chinese wall proposal and a good opportunity to see if there is another approach that might work better for all involved.
The Chinese wall in this case is a response to a revolving door matter, but in this case the individual is entering government service, where the laws are less clear than for officials leaving government service. An individual entering government service is not likely to directly benefit from decisions he makes, but his former clients and business associates will.
A Qualified Nominee
According to an article in the Baltimore Sun, the lawyer nominated to be head of the Department of Permits, Inspections and Approvals and deputy administrative officer for agency accountability in Baltimore County has held several jobs in the county government, including county attorney, zoning commissioner, and head of the Department of Permits and Development Management. Because the nominee is highly qualified for the position, it would be nice to find a way to let him take it.
But since 2003, he has been a land use attorney with a local law firm. He is so active in the county that he is sole or co-counsel in 7 of 25 cases pending before the county Board of Appeals and in at least 4 cases before the Circuit Court, some of which could eventually come before his department, according to an article in Tuesday's Baltimore Sun. The nominee's qualifications must be balanced against the strong possibility of conflicts with his clients and with his law firm's clients.
This Chinese Wall's Limitations
According to Tuesday's article about the nominee's appearance before the county council, he has agreed with the mayor, who nominated him, to withdraw "as the attorney in all active cases that could possibly come before the new Department of Permits, Inspections and Approvals. 'I am bound by the lawyer's canon of ethics. ... I take that very seriously.' ... He said he would recuse himself from involvement if clients in these cases come before his agency."
By calling this a Chinese wall, the presumption is that the nominee would not speak with his former clients, his former law firm colleagues, or his colleagues and subordinates at the county about any of these active cases. As with all Chinese walls, the public has to take the nominee's word for this. It is practically unenforceable. But let's assume that the Chinese wall is solid rock, not a Chinese screen.
Legal Ethics and Government Ethics
One problem here is that the canon of ethics for lawyers, which the nominee referred to as his reason for withdrawing from his active cases, falls far short of what is best to preserve the public trust. In government ethics, a conflict can occur even with respect to a case the nominee didn't work on, because government ethics is based on relationships and appearances, not simply the representation of clients with different interests.
Clients, Colleagues, and Cut-off Dates
Second, it's not clear whether the nominee intends to withdraw from all matters involving the clients in active cases, as opposed to just the cases themselves. The article makes it appear that he said he would withdraw from cases involving all the clients he currently represents. But if he intended to say this, why did he limit his withdrawal to clients in active cases? What about his former clients? When he approves the requests of his former clients, this will create an appearance that he is favoring his old (and potentially future) clients. Using the day of his nomination as the cut-off date for withdrawal seems arbitrary to me.
It appears to me that the nominee only intends to withdraw from cases active on the day he was nominated, both as an attorney and as a public servant. He would not have to withdraw anymore once these active cases are past. I don't think that is enough.
What about his former law firm? Shouldn't he withdraw from any matter in which his former (and possibly future) law firm was involved? And what about an important client of his law firm who was being represented in a matter by another firm, possibly due to a conflict with the nominee's firm?
The fact is that there are many possible conflicts in the future for this nominee. Will he be as likely to reject requests from his old clients and his old law firm, or even the law firm's important clients, as he would to reject requests from others? And would he be seen as playing favorites, not for his own current (although possibly future) benefit, but for the benefit of his law colleagues from the past seven years?
Good Reasons to Oppose the Nomination
According to the first Sun article, a lawyer and longtime activist questions the nomination for several good reasons:
Elected officials are saying that the nominee's integrity is beyond question. But that is irrelevant to conflict situations. A person with utmost integrity can be just as conflicted as anyone else. Think about what "integrity" means: wholeness. It is the quality of someone who has it all together, ethically speaking. Conflicts undermine that wholeness. They turn a person with integrity into a person who has conflicted interests and who is seen to have conflicted interests. A person with integrity might believe he can handle these conflicts as they arise, but he needs to recognize that the conflicts may also handle him, keep him awake at night, undermine his well-earned reputation. A Chinese wall can be fragile protection for a man's reputation.
Government ethics is primarily intended to protect the public, but it also protects good government officials.
Having Your Expertise, and Using It, Too
But what about all that expertise? Should it just go to waste? No, of course not. The trick is to find a way to use the expertise without creating a series of conflicts that will undermine trust. The nominee's testimony to the council, as described in Tuesday's article, points to a way that he can help the county without any conflicts arising. He told the council that he wants to coordinate the work of departments involved in approving construction projects, and to have their functions conducted online, so that the permit process can move much faster. He also said that he wants to begin training inspectors to spot violations outside their own specialty.
He can do these things and more as a consultant to the department, without being the person responsible for approvals. That would be the best of both worlds for the county: expertise and good ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
---
I wrote a blog post on Chinese walls back in March, but I used examples from the federal and state levels. I mentioned a supposed Chinese wall in San Diego back in 2008, but mainly to show how officials were in denial. A nomination for a position in Baltimore County provides a good local government example of a Chinese wall proposal and a good opportunity to see if there is another approach that might work better for all involved.
The Chinese wall in this case is a response to a revolving door matter, but in this case the individual is entering government service, where the laws are less clear than for officials leaving government service. An individual entering government service is not likely to directly benefit from decisions he makes, but his former clients and business associates will.
A Qualified Nominee
According to an article in the Baltimore Sun, the lawyer nominated to be head of the Department of Permits, Inspections and Approvals and deputy administrative officer for agency accountability in Baltimore County has held several jobs in the county government, including county attorney, zoning commissioner, and head of the Department of Permits and Development Management. Because the nominee is highly qualified for the position, it would be nice to find a way to let him take it.
But since 2003, he has been a land use attorney with a local law firm. He is so active in the county that he is sole or co-counsel in 7 of 25 cases pending before the county Board of Appeals and in at least 4 cases before the Circuit Court, some of which could eventually come before his department, according to an article in Tuesday's Baltimore Sun. The nominee's qualifications must be balanced against the strong possibility of conflicts with his clients and with his law firm's clients.
This Chinese Wall's Limitations
According to Tuesday's article about the nominee's appearance before the county council, he has agreed with the mayor, who nominated him, to withdraw "as the attorney in all active cases that could possibly come before the new Department of Permits, Inspections and Approvals. 'I am bound by the lawyer's canon of ethics. ... I take that very seriously.' ... He said he would recuse himself from involvement if clients in these cases come before his agency."
By calling this a Chinese wall, the presumption is that the nominee would not speak with his former clients, his former law firm colleagues, or his colleagues and subordinates at the county about any of these active cases. As with all Chinese walls, the public has to take the nominee's word for this. It is practically unenforceable. But let's assume that the Chinese wall is solid rock, not a Chinese screen.
Legal Ethics and Government Ethics
One problem here is that the canon of ethics for lawyers, which the nominee referred to as his reason for withdrawing from his active cases, falls far short of what is best to preserve the public trust. In government ethics, a conflict can occur even with respect to a case the nominee didn't work on, because government ethics is based on relationships and appearances, not simply the representation of clients with different interests.
Clients, Colleagues, and Cut-off Dates
Second, it's not clear whether the nominee intends to withdraw from all matters involving the clients in active cases, as opposed to just the cases themselves. The article makes it appear that he said he would withdraw from cases involving all the clients he currently represents. But if he intended to say this, why did he limit his withdrawal to clients in active cases? What about his former clients? When he approves the requests of his former clients, this will create an appearance that he is favoring his old (and potentially future) clients. Using the day of his nomination as the cut-off date for withdrawal seems arbitrary to me.
It appears to me that the nominee only intends to withdraw from cases active on the day he was nominated, both as an attorney and as a public servant. He would not have to withdraw anymore once these active cases are past. I don't think that is enough.
What about his former law firm? Shouldn't he withdraw from any matter in which his former (and possibly future) law firm was involved? And what about an important client of his law firm who was being represented in a matter by another firm, possibly due to a conflict with the nominee's firm?
The fact is that there are many possible conflicts in the future for this nominee. Will he be as likely to reject requests from his old clients and his old law firm, or even the law firm's important clients, as he would to reject requests from others? And would he be seen as playing favorites, not for his own current (although possibly future) benefit, but for the benefit of his law colleagues from the past seven years?
Good Reasons to Oppose the Nomination
According to the first Sun article, a lawyer and longtime activist questions the nomination for several good reasons:
-
[He] said the nomination affirms his view that government officials and
developers are too close and that these relationships put communities
at a disadvantage in challenging construction proposals. ... "This is a
major payback to the developer community which so ably and strongly,
financially supported [the new mayor's] candidacy."
He said the agreement between [the mayor and the nominee about withdrawal] is hardly reassuring. He wondered how it would be enforced, and why it wasn't negotiated by lawyers outside the administration. "That's not satisfactory to me because his underlings will be involved. You have to be concerned about the appearance of impropriety."
Elected officials are saying that the nominee's integrity is beyond question. But that is irrelevant to conflict situations. A person with utmost integrity can be just as conflicted as anyone else. Think about what "integrity" means: wholeness. It is the quality of someone who has it all together, ethically speaking. Conflicts undermine that wholeness. They turn a person with integrity into a person who has conflicted interests and who is seen to have conflicted interests. A person with integrity might believe he can handle these conflicts as they arise, but he needs to recognize that the conflicts may also handle him, keep him awake at night, undermine his well-earned reputation. A Chinese wall can be fragile protection for a man's reputation.
Government ethics is primarily intended to protect the public, but it also protects good government officials.
Having Your Expertise, and Using It, Too
But what about all that expertise? Should it just go to waste? No, of course not. The trick is to find a way to use the expertise without creating a series of conflicts that will undermine trust. The nominee's testimony to the council, as described in Tuesday's article, points to a way that he can help the county without any conflicts arising. He told the council that he wants to coordinate the work of departments involved in approving construction projects, and to have their functions conducted online, so that the permit process can move much faster. He also said that he wants to begin training inspectors to spot violations outside their own specialty.
He can do these things and more as a consultant to the department, without being the person responsible for approvals. That would be the best of both worlds for the county: expertise and good ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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