Government Lawyers: Function or Membership?
"Why hire a lawyer to do an internal investigation? It’s because you
get the privileges. Otherwise, you’d save a little money and hire a
consultant or accountant." These are the wise words of Bruce A. Green, Director of the Louis Stein Center for Law and
Ethics at Fordham Law School, as quoted <a href="http://www.nakedcapitalism.com/2014/03/jp-morganmadoff-case-puts-spotli…; target="”_blank”">in
the New York <i>Times</i> yesterday</a> in an article about the obstacles
JPMorgan Chase has put in the way of prosecutorial access to internal
notes of interviews regarding the bank's involvement in the Madoff case.<br>
<br>
For government ethics, the most important question here isn't the strategy of using lawyers
rather than other investigators (or, in the case of ethics advice,
lawyers instead of government ethics professionals). The most
important question is, Should government attorneys be differentiated
from other government officials on the basis
of their function or on the basis of their membership in a
professional group?<br>
<br>
Bar
associations take the position that it is membership in a professional group
(their group) that matters. But to those outside their group (which
happens to draft not only its profession's rules of conduct, but
also our laws), it seems unreasonable that the words spoken, notes
written, and acts performed by one official are treated
in a different manner from the same words, acts, and notes of
another professional. It is clearly
irrational, in a government context, to base a confidentiality
privilege on membership
rather than on function.<br>
<br>
A professional association rule has no place in an organization
where attorneys are
government officials first, and only secondarily attorneys, and
where as government officials or contractors, lawyers
have special duties to the public that, when in conflict, override
their professional duties.<br>
<br>
For more on this topic, see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Att…; target="”_blank”">the
relevant section of my book</a> <i>Local Government Ethics Programs</i>.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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