Do Ethics Commissions Have Jurisdiction Over Officials' Practice of Law?

Lawyer-legislators are extremely creative people. The latest use of their creativity is to argue that ethics boards cannot require disclosure of a conflict of interest that arises from legal representation because they have no jurisdiction over the practice of law. Only the state Supreme Court has that jurisdiction.

The lawyer-legislator in this matter is state senator Rob Marionneaux of Louisiana, a state whose ethics code applies to local governments. According to an article in the Baton Rouge Advocate, he said that "the reporting requirement in state law does not apply to lawyers who are legislators. 'The practice of law is regulated by the Supreme Court.'" According to a more recent Advocate article, the senator's lawyer, his law partner, said that "the ethics board is trying to inject itself into the practice of law." For background on this matter, see this article in the Post South.

According to an article in the Baton Rouge Business Report, "on June 10, nearly two months before the ethics charges were made public, Marionneaux co-sponsored an amendment to an ethics bill that would have removed the disclosure requirement. The amendment had not been debated in legislative committees. It was adopted without debate or objection, and the bill passed the Senate by a unanimous vote. The bill later failed when the House did not approve changes made by a joint legislative conference committee."

So, without any debate, the disclosure requirement was almost taken out of the state ethics code. This issue certainly requires debate. What is the argument that would justify lawyers being excluded from disclosing to the ethics board their representation of clients in a suit against the state or a local government, when such suits are public information? In this case, for instance, the client sought to sue not only a state university, but also the state, which apparently would have required senate approval of funds to which the senator would have a cut, pursuant to a contingency fee arrangement. This is exactly the sort of situation that requires full public disclosure at the time the representation begins, so that the situation can be questioned before it goes any further.

Nothing is more important in government ethics than dealing responsibly with conflicts of interest. Oversight of how officials deal with their conflicts cannot occur if there is no disclosure. There is no rational argument for lawyers to be excluded from this disclosure, any more than there is for lawyers to be excluded from having to deal responsibly with their conflicts of interest.

Legal rules of professional conduct do not deal with conflicts between a legislator's obligations to the public and a client's interests. This is true, as well, of other professions.

For a professional of any sort to insist that his profession is excluded from ethics disclosure requirements, he better have a host of reasons why his profession's disciplinary process is more important than representing the public and dealing responsibly with conflicts of interest. He also should be able to argue that his profession stands above all others, just because its limited ethics laws are overseen by the court system.

If Marionneaux truly believed he had a good case, he wouldn't have tried to get rid of the requirement in such a sneaky fashion. He should admit that the state ethics program has the right to require disclosure in matters such as this, and allow the process to move forward. He is only adding insult to injury, and seriously undermining citizen trust in its lawyer-legislators.

Robert Wechsler
Director of Research-Retired, City Ethics

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