Legal Ethics vs. Government Ethics

Many government lawyers feel that the rules of professional conduct are sufficient to keep them ethical. Because of this, they sometimes seek to be excluded from an ethics commission's jurisdiction (see a recent blog post) and more often argue that the attorney discipline system takes precedence. An April 30 decision by a Michigan attorney discipline hearing panel shows how weak the attorney discipline system is in dealing with government ethics violations. The subject of the decision was a former Detroit corporation counsel involved indirectly in the infamous secret settlement tied to the mayor's sexual text messages.

The complaints against the corporation counsel and his division chief (the decision concerning her has not yet come down) are discussed in detail in a blog post I wrote a year ago. I highly recommend you read that post before continuing with this one.

For those in a rush, here's the core of what occurred. Rather than appealing a multi-million dollar decision against the city, the mayor entered into a secret settlement agreement, in order to hide sexual text messages between him and his chief of staff. A public settlement agreement, with no mention of the text messages, was sent to the council for approval (as required by law), along with a memorandum approved by the corporation counsel, which made no mention of the text messages.

In addition, the Detroit Free Press made two FOI requests for all documents relating to the settlement, and the corporation counsel oversaw filling of this request without including the secret settlement agreement.

The FOI Request
The attorney discipline system did find unethical conduct with respect to the FOI request, however only in a limited context. The hearing panel found (pp. 23ff of the decision) that the corporation counsel violated Michigan Rules of Professional Conduct (MRPC) 5.1(b), which requires the making of reasonable efforts to ensure that subordinates follow the MRPC. Here's what the panel determined:

Once he learned of the true nature of the text messages, it was incumbent upon [the corporation counsel] to inquire vigorously and thoroughly about the details of the settlement and the possible existence of additional documents before he sent [his subordinates] to represent the City at a hearing in the FOIA lawsuit.

The hearing panel also found (pp. 28ff) that the corporation counsel violated Michigan Court Rules 9.104(A)(1) and (2), which deal with conduct prejudicial to the proper administration of justice and conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach.

In both cases, however, the hearing panel focused not on ordinary official conduct, but on conduct in a judicial setting, where lawyers truly do have different obligations than government officials.

The Corporation Counsel's Client
The attorney discipline system did not deal so well with the corporation counsel's failure to tell the council about the secret settlement agreement and the text messages that made it secret. The grievance administrator contended that the corporation counsel violated MRPC 1.2(a), which requires an attorney to seek the lawful objectives of a client through reasonably available means permitted by law. This rule is not a very good way of preventing a government attorney from putting an official's personal interest ahead of the public interest. But it did lead to an interesting twist on the question of who a government attorney's client is.

Government attorneys tend to prefer to consider the individual or body they are representing to be their client, in this case the city council. But the corporation counsel was forced to argue that his client was not the council, but the city. Here's what the hearing panel wrote:

Since it was admitted by [the corporation counsel] that City Council was the only office, agency or authority within the City of Detroit that could approve the payment of settlement funds, it is nonsensical for him to argue that the Detroit City Council was not owed the duties of a "client" with respect to approval of the settlements...

Because, in this case, the corporation counsel's obligation to the city was to the council, both the corporation counsel and the hearing panel were effectively right about who the client was but, as you'll see in the next section, the hearing panel was not fully right.

And in its next step, the hearing panel was dead wrong. It found that since the city's exposure was larger than the settlement amount, the corporation counsel was, by supporting the settlement, seeking the client's lawful objectives. But exposure is not everything. There was the possibility of appeal, which the grievance administrator said the corporation counsel originally sought, and there was also the possibility of exposing the effective blackmail surrounding the mayor's text messages, and all that might flow from that exposure.

Letting the council know of these alternatives takes us to the next rule the corporation counsel allegedly violated.

Explaining a Matter to a Client
The next rule allegedly violated also has nothing to do with conflicts of interest. It is Rule 1.4(b):

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The contention was that the corporation counsel, by failing to alert the council about the secret agreement, did not allow it to make an informed decision. That's so clearly true in this case, it's incredible that the hearing panel found there was no such violation. Here's how the hearing panel reached that conclusion.

First of all, the hearing panel argued, "there is absolutely no proof that any member of the City Council received, read or relied upon the settlement memorandum," and the council did not discuss the settlement or ask questions of the law department. And second, there is "no evidence that the Detroit City Council would have voted any differently on settlement if it had been advised about settlement terms regarding keeping the text messages secret." In fact, there was no proof that the council "had any interest in the reasons that settlement was being recommended."

In other words, according to the lawyer discipline hearing panel, a government attorney does not have to provide full information to a city council if the council may not read what the attorney did provide, if the matter would not be publicly discussed or discussed with the attorney, if the extra information would not necessarily lead to a different decision, and if it the council might not be interested in arguments concerning the settlement.

This is ridiculous. Of course, the information not provided must be material, but there is no question here whether information about the secret settlement is material.

When a government attorney provides advice to a council, he has to presume that that the council members are interested in what he has to say and that it will act responsibly. All the evidence in the world that the council acts irresponsibly does not allow a government attorney to act irresponsibly, especially when he is doing so to protect another government official's personal reputation.

By considering what the particular council members did or would have done with the corporation counsel's advice, the hearing panel effectively determined that the council members were the corporation counsel's client, rather than the city council itself. A government attorney's client, in this case, is a group of offices rather than the supposedly irresponsible people currently filling those offices and doing it poorly. This is an extremely important distinction which the panel completely ignored.

It should be noted that in a decision by another hearing panel (April 29, 2010), concerning outside counsel involved in this matter, the panel said:

The Detroit City Council was entitled to know of the existence and terms of the [secret settlement] before being asked to approve a settlement payment.

Not surprisingly, this statement was of no meaning, since the panel found that outside counsel had no obligation to tell the council. It is curious that when an attorney's obligations did matter, a hearing panel unanimously came to the opposite conclusion. It makes one wonder how sympathetic such panels are to lawyers, and certainly supports the common belief that government officials should not sit on government ethics commissions, since they would tend to sympathize with government officials in much the same way.

Conflict of Interest
Finally, the hearing panel gets to the only MRPC rule it considered that involves a conflict of interest. The rule is 1.7(a), which reads:

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.

The hearing panel easily dismisses the applicability of this rule with some weak arguments:

MRPC 1.7(a) proscribes a lawyer from engaging in certain conduct, but does not subject a lawyer to discipline if he/she merely "knew" that another lawyer's actions violated MRPC 1.7(a). Further, even if MRPC 1.7(a) provides for derivative responsibility, the Panel unanimously finds that Petitioner failed to prove that [the corporation counsel] knew that anything done by [his division chief] with respect to the settlement ... was "directly adverse" to the interests of the City of Detroit. While some aspects of the settlement may have favored [the mayor] more than the City of Detroit, that does not make those aspects "directly adverse" to the City.

In other words, a corporation counsel who knows that his subordinate is providing representation that is directly adverse to another client, who reviews that work, and who approves a memorandum based on that work is not responsible for that subordinate's conduct. And to be "directly adverse" to a client's interest, a settlement must favor another client's interest in more than a few aspects, whatever that means.

It's worth noting that the word "conflict" does not appear in the decision, nor do the terms "personal interest" or "public interest."

Legal Ethics vs. Government Ethics
The fact is that, in government ethics, there is no need to show that one interest is being favored more than another. You simply can't represent two conflicting interests, nor can a superior allow a subordinate to participate with a conflict. This hearing panel decision shows that a lawyer's conflict and a government official's conflict are two very different things, as are their obligations to the public and its representatives.

A government official's obligations are far stronger than a lawyer's. Therefore, a government lawyer's obligations must be first those of a government official, and only secondarily those of a lawyer. Otherwise, any lawyer who is a government official will have a very different, and weaker, set of obligations than all other government officials.

Even more serious, this hearing panel decision takes a legalistic approach to ethics, making every effort to interpret the rules to the benefit of the lawyer and considering the rules of conduct the maximum expected of a lawyer. This differentiates legal ethics from government ethics, where the rules are considered the minimum expected of government officials. This is the same approach that was taken in my legal ethics course back in law school. The lectures concerned more what lawyers can do to get around the rules of conduct than what lawyers should not be doing. Applying legal cleverness to ethics rules is inappropriate and damaging to their validity as well as to their goals.

Robert Wechsler
Director of Research-Retired, City Ethics

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