Lawyers Who Want to Be Excluded from Government Ethics Codes

Government lawyers enjoy exceptions to transparency laws. Should they also be excepted from government ethics laws? Atlanta senior assistant city attorney Robert N. Godfrey thinks so, according to an article in yesterday's Atlanta Journal-Constitution.

Godfrey allowed lawyers suing the city to pick up two restaurant tabs for him at meals they attended together. But he says that his ethics are regulated only by the state bar and the state supreme court, not by the city's ethics board. The ethics board disagreed and will consider the complaint against him.

The Georgia bar also does not appear to agree with Godfrey. "Only the Georgia Supreme Court — and the Bar, with powers delegated by the court — can regulate the practice of law. But lawyers still must comply with state and local laws, said Paula Frederick, the Bar’s general counsel."

The fact is that lawyer disciplinary rules lack many sorts of provision that appear in government ethics codes. And where there is overlap, government officials usually have stronger and more clear obligations than lawyers. In addition, very few disciplinary rules recognize the unique situation or obligations of government lawyers. For more on the legal and ethical issues involved in government ethics jurisdiction over government lawyers, see my blog post on this topic.

I believe that this is more about attorney arrogance than it is an honest jurisdictional issue, but it keeps coming up. And in some cases, government lawyers have successfully placed in ethics codes provisions that exclude lawyers from having to follow the code.

Georgia happens to be home to a truly arrogant example of a lawyer insisting that a government ethics code does not apply to him.

According to the Journal-Constitution article, "Robert Proctor made much the same argument in 2004 when he was fined $1,000 for failing to register as a lobbyist. Proctor should have done so, the State Ethics Commission ruled, before testifying at a legislative hearing on behalf of a client who buys and sells tax liens. Proctor blew off ethics investigators at the time, explaining that 'he is only regulated by the Supreme Court' and the Bar, records show."

Here's an excerpt from the state EC's investigation, included in a post on the Atlanta Unfiltered blog:

I then asked if [Proctor] was aware of the definition of lobbyist under [Georgia Code section] 21-5-70 — he stated that he didn’t “give a shit” what it said because he was not regulated by the 21-5-70 he is only regulated by the Supreme Court and the GA Association.

If that's not enough to convince you of the lawyer's arrogance, try this:

Told that former Attorney General Mike Bowers had issued an advisory opinion that lawyers must also register as lobbyists, records show, Proctor said “it didn’t matter because the AG is just another attorney.”

Not only has Proctor still not paid the fine, but (and I'm not making this up) he was appointed to the state ethics commission in January, and before he attended his first meeting, his failure to pay his fine came out, and he resigned. For more on this, see a recent City Ethics blog post.

If a government lawyer says an EC has no jurisdiction over him or her, tell the story of Robert Proctor. Someone in Georgia ought to turn it into a good country-western song to preserve it for future generations.

Robert Wechsler
Director of Research-Retired, City Ethics

---