A Primer for Government Lawyers Faced with Officials' Conflicts

Today I came across the Municipal Research and Services Center of Washington (State) website. MRSC is "private, non-profit organization based in Seattle," whose mission is "to promote excellence in Washington local government through professional consultation, research and information services."

Since what's good for Washington local governments is good for any local government, this website is a good resource to know about. It includes a page of links to sample local ethics codes, a page on Washington state laws governing local government ethics, including the consequences of violating each law, and a conflicts of interest page that includes court decisions and AG opinions.

But, at least for me, the most interesting document on the website is the Public Law Ethics Primer For Government Lawyers prepared by the Washington State Municipal Attorneys Association and revised in 2010, after this blog post first appeared. Although primarily a legal ethics primer, there is an important overlap with government ethics when it comes to the representation of officials, especially when conflicts are involved. The primer attempts to answer the difficult question, What are a government lawyer's obligations when officials act not in the public interest, but rather in their personal interest?

Who's the Client
The first step in the primer is determining who the client is. The primer supports the entity approach which, in the case of government lawyers, according to In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997, means that a government lawyer represents the office, and the official only when acting in an official capacity.

In practice, this means that, "if internal conflict exists between officials, and the lawyer is receiving conflicting directions, the lawyer should take the issue to the highest authority within the entity to resolve the conflict and should provide that highest authority with a reasoned legal opinion on the issue. The lawyer may need to have the political body vote on the directions given to the lawyer." This follows ABA Model Rule 1.13.

Officials tend to treat government lawyers as their personal lawyer. The chair of a body will give directions to counsel, as will members of the executive branch. How often do political bodies follow the primer's suggestion and vote, not on what to do with legal advice, but rather on what directions should be given to a government lawyer? And how often are such directions debated and decided in public? Not very often, I think.

The primer recommends that, when officials "appear to believe that you represent them in their individual capacity, clarify to them that you represent the municipality as a whole as directed by the public officials."

Attorney-Client Privilege
Also important for government ethics is the primer's consideration of the bounds of attorney-client privilege in a government context:

Hypothetical: The Mayor advises you that you should win the upcoming law suit easily because he took the precaution of secretly taping all his meetings with his former deputy, the current plaintiff. Your client is the City, not the Mayor. While in most cases the official acts for and on behalf of the client, he or she does not do so when violating the law.

Practice Consideration: When is it necessary for a governmental attorney (ethically) to advise a public employee or official that he/she should secure private counsel? Any time the attorney believes that the individual interests of the official will conflict with those of the public agency. If the only defense available to the public agency is that the official acted improperly and without authority, then this would be necessary.

In other words, government lawyers should not represent an official who is violating the law, including ethics laws. Faced with an official's conflict situation, a government lawyer should stop representing that official and suggest that he or she hire private counsel. Because government attorneys are always supposed to represent the entity or position, they are not in a position to provide advice regarding conflicts, other than to tell the official to seek neutral advice, either from private counsel or an ethics commission or ethics officer.

And yet local government attorneys give ethics advice all the time.

Executive Sessions
Similarly, if a board in executive session wants to discuss a matter that is not within one of the executive session exceptions, that is, when a board chooses not to recognize the public interest in transparency as clearly delineated in a freedom of information law, what is the government lawyer's obligation? Here is a hypothetical from the primer:

In an executive session to discuss litigation relating to a City's zoning ordinances, the Mayor suddenly says, "Now that the media's out of here, let's plan how we're going to adopt this new newspaper tax." Despite cautioning the Council that this topic is not authorized for executive session, the discussion continues on the issue of the tax. What is the attorney's ethical duty with respect to the unlawful meeting? The attorney should warn the public body that it is authorized to conduct an executive session for certain limited purposes, and if it wishes to proceed with other matters, the public meeting should reconvene.

The hypothetical doesn't suggest what to do if the attorney's advice is ignored, but all a government lawyer would have to do is threaten to walk out of the meeting. No board would want to put itself in the position of explaining, or failing to explain, why a government lawyer walked out of an executive session. However, how many government lawyers would have the nerve to actually walk toward the door?

Lawyers' Pre- and Post-Employment Rule
It's also worth noting that Rule 1.11 of the ABA Model Rules involves Special Conflicts of Interest for Former and Current Government Officers and Employees, who happen to be attorneys. This rule is effectively a conflict and post-employment (as well as pre-employment) rule that covers all government lawyers, whatever their local or state laws say. This doesn't mean that lawyers are not subject to ethics commission enforcement, only that whether or not there are equivalent local or state conflict and post-employment laws, these rules of professional conduct apply. They also apply to a government lawyer's past, future, and present law firm.

There's a lot more information in this excellent primer for local government lawyers. City and county attorneys have a very tough job, and one of the toughest parts is dealing their own conflicts, as well as officials' conflicts.

For a more free-ranging primer, see A Handbook for County Board Attorneys in Mississippi (2004), prepared by the Center for Governmental Training & Technology, in association with the Mississippi Association of County Board Attorneys. Its ethics section is largely based on the Washington primer, but this is a small part of an extensive, 355-page handbook in PDF format.

Robert Wechsler
Director of Research-Retired, City Ethics

---