Officials' and Lawyers' Obligations Relating to Citizen Participation

Anonymous

Tue, 10/08/2013 - 06:10

Yesterday evening, I attended a meeting of my town's planning and
zoning commission. The principal agenda item involved a request for
an amendment to the town plan to allow the building of a private
recycling center in the town. The commission's secretary read a letter from the
requesting party's attorney, who is a member of another town board, withdrawing the request. The letter
said that the principal reason for withdrawal of the request was
opposition to the amendment by a small group of citizens who had
"distorted" the facts. 
 
Whether this makes sense or not, it constitutes an attack, without
any stated foundation, on citizens who spoke their views at a public
meeting and in a flyer delivered to mailboxes asking people to
attend last night's meeting. Coming from a public official and
respected local attorney, it sent a clear message that citizen
participation is damaging, and that those who participate will be
publicly criticized. This makes it less likely that, in the future, my town's citizens will
come forth and participate in matters such as this. 
 
I would like to raise two related questions. Does a local official
have an obligation, in any role he plays, not to do anything that
would undermine citizen participation in government? Does an
attorney have such an obligation?

It is important to recognize that citizen participation is a central
goal of government ethics. Without trust that government
officials are acting in the public interest rather than in their
personal interest or in the interest of those with whom they have a
special relationship, citizens generally do not participate in the
governments that manage their communities. Although the attorney's
letter did not involve trust, it did involve citizen participation,
in a more direct manner. And it did involve the wearing of at least
two hats. 
 
The Creation of a Conflict Where One Did Not Exist 
There is no reason a member of a board that does not involve land
use should not be permitted to represent clients before a land use
board. But when an attorney does this, it does not mean that he is
not wearing two hats. It just means that there is no conflict
between the two hats. However, the
official should be careful not to create a conflict. For example, he can be paid for his
services, but he cannot be given a gift by his client, especially if
this might be seen as affecting his official role. And he cannot use
his official position, his official relationships, or confidential
information to help his client. 
 
But what is he supposed to do if a client wants to withdraw a
request and blame citizens who have opposed it? Yes, board members
are known to limit or even prevent public comments, and they
sometimes lash out at citizens who say things they don't like. But
this doesn't make it right. I believe that other board members have
an obligation to oppose their colleagues when they do this. In fact,
two of the planning and zoning commission members did just this
after the letter of withdrawal was read aloud. They criticized the letter, spoke out in
favor of citizen participation, and thanked those who did
participate. 
 
When a board member, acting as an attorney, lashes out at citizens
who say things his client doesn't like, in a public document that
is likely to be read aloud at a public meeting, is it any different
from that individual speaking out against citizen participation at the meeting itself?
Yes, it is not a meeting of the official's board. But is this fact
controlling? Should an official act in one board situation in a way
that would be wrong in another board situation? I don't think he should. 
 
When an official who is an attorney represents a client before a
town board, he should let the client know that he will do nothing that
he would not do before his own board. In other words, he has two
roles that he will not allow to come into conflict with one another.
If the client does not agree to this, it should seek other counsel.
If it does, it must accept the consequences. The alternatives are
for the attorney not to serve as an official or not to represent
clients before his own town's government. 
 
Meritorious Claims 
But these alternatives lead to the second question: Does an attorney
who is not an official of the government he is appearing before
still have an obligation not to undermine citizen participation? 
 
Attorneys are limited in what they can do by their state's rules of
professional conduct. Connecticut (my state) rule 3.1, "Meritorious Claims and Contentions,"
states in part, "A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis in law and
fact for doing so that is not frivolous." 
 
The rule's commentary states that an action is frivolous "if the
client desires to have the action taken primarily for the purpose of
harassing or maliciously injuring a person or if the lawyer is
unable either to make a good faith argument on the merits of the
action taken or to support the action taken by a good faith argument
for an extension, modification or reversal of existing law." 
 
So there is a question of whether an attack on opposing citizens is
harassment, whether it will be injurious to citizen participation, and whether the lawyer could make a good faith argument
that the citizens' "distortion" of the facts truly led to withdrawal of the
client's request. If an attorney has reason to believe that the client was seeking to harass the citizens who opposed its request, that the client's attack might undermine citizen participation, or that the citizens' contentions were
not the real reason for withdrawal, he should have said that the rules of professional
conduct prevented him from stating this. 
 
Lawyers' Obligations as "Public Citizens" 
The preamble of the rules of professional conduct states that a
lawyer is "a public citizen having special responsibility for the
quality of justice. ... As a public citizen, a lawyer should seek
improvement of the law, access to the legal system, the
administration of justice and the quality of service rendered by the
legal profession." 
 
This is a narrow definition of "public citizen." A lawyer is a
public citizen in the sense that he understands the laws and the
processes not only of the justice system, but also of government, if
that is where he practices, and of other institutions in which he is
active. He is a public citizen because he has more understanding and
more power to affect the running of our society's institutions. This
is why lawyers play such a dominant role in our governments. But
whether they do so as an official or merely as a lawyer, their
obligations as lawyers should be the same. 
 
One of those obligations, akin to "a responsibility for the quality
of justice" should be a responsibility for the quality and quantity
of citizen participation in government. Just as a lawyer should seek
access to the legal system, she should also seek access to
government, and do nothing to prevent or lessen such access. 
 
And this is what the attorney in my town did. Whether it was at the
client's request or was instigated by the attorney himself, it was
wrong. It is not something a "public citizen" should do to lesser
citizens. "Public citizens" need to acknowledge this responsibility,
and it would be valuable if the rules of professional conduct were to
acknowledge that the obligations of "public citizens" go beyond the
justice system. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Officials' and Lawyers' Obligations Relating to Citizen Participation

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