Spring Reading: The Government Ethics Adviser As Civics Teacher

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Wed, 04/02/2014 - 10:19

Advisory Opinions

"<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1418585" target="”_blank”">'Public
Service Must Begin at Home': The Lawyer as Civics Teacher in
Everyday Practice</a>" by Bruce A. Green and Russell G. Pearce
(William & Mary Law Review, Vol. 50, p. 1207, 2009) provides an
excellent basis for something that I consider extremely important to
government ethics, but with which many government ethics
practitioners disagree: going beyond the law in the provision of government ethics
advice (sometimes known as "wise counsel"). 
 
What the authors mean by "the lawyer as civics teacher" is that a
lawyer's civic obligation is not only to provide pro bono services
and the like, externally to one's ordinary practice, but also "to convey to clients the lawyer's
understanding of proper civic conduct." The authors note that "when
lawyers counsel clients about their legal rights and obligations,
and about how to act within the framework of the law, lawyers
invariably teach clients not only about the law and legal
institutions, but also, for better or worse, about rights and
obligations in a civil society that may not be established by
enforceable law — including ideas about fair dealing, respect for
others, and, generally, concern for the public good." This includes
clients' "obligations to obey the law, aspirations to fulfill the
spirit of the law, and responsibility to the good of their neighbors
and the general public."

This may sound like goody-goody gobbledygook to many lawyers (and their clients), but this is because,
as the authors point out, the conception of lawyers' obligations has
changed in recent years. The idea of zealously representing clients
has spread out of criminal law into civil practice and even into
government practice. The idea that a lawyer's civic obligations are
external to their ordinary practice is also a recent idea. 
 
"Lawyers Are Unavoidably Teaching Ethics" Anyway 
If a government attorney or ethics officer providing ethics advice
interprets ethics provision language without going further,
without treating the laws as the minimum standards they are, then
the extra-legal message they are giving government officials is that
ethics laws are maximum standards, and that they may take advantage
of any ambiguous language or loophole they can find (or that the ethics adviser can find for them). That is, silence about ethics
is actually ethics advice, only the wrong ethics advice. As the
authors say:<blockquote>

[A]dvising the client to stay comfortably within the law (and comply
with the imperfectly expressed spirit or purpose of the law) teaches
one conception of civic obligation. Encouraging the client to
exploit legal loopholes or to test legal limits teaches a different
conception.</blockquote>

Or, summarizing what Justice Brandeis wrote in his dissenting
opinion in <a href="http://scholar.google.com/scholar_case?case=5577544660194763070&hl=en&a…; target="”_blank”">Olmstead v. U.S.</a>, 277 U.S. 438, 485 (1928), "As long as
lawyers are unavoidably teaching ethics, they ought to try to do a
good job of it, if only out of a sense of public obligation." 
 
Ethics advisers cannot help being civics teachers. Therefore, an
ethics adviser has an obligation to decide what sort of civics
teacher to be: one who implicitly tells officials that
fulfilling minimum ethics obligations is sufficient or one who
expressly tells clients that, as fiduciaries for the community, they
have obligations that go beyond the minimum requirements of ethics
laws, including the obligation to prevent the damage that
appearances of impropriety cause. 
 
According to the authors, when lawyers provide ethics, or even
legal, advice, they are not just saying, "This is what the law
says." They are helping officials make "fully informed decisions,"
to consider "all relevant considerations, not just legal
considerations." 
 
When government lawyers refrain from advising beyond
the minimum requirements of ethics laws, knowing that this results
in government officials wrongly seeing these laws as maximum
requirements, this too involves an ethical judgment.
They cannot get away from doing this. In fact, don't many lawyers in the role of government ethics advisers
intentionally treat ethics laws as maximum requirements so that the
officials they believe they work for can do what they want to do? This
is an ethical judgment, and yet lawyers generally do not say that such an ethical judgment is inappropriate. What they say,
effectively, is that it is acceptable for ethics advisers to make ethical
judgments when they take the form of an omission rather than an act, or when they act in response to an official's demands, even when they know there is a serious chance that the official's conduct will be harmful to the official and to their community he represents. This is an understandable argument when made by appointees of high-level officials, but it is inappropriate because government attorneys have the same fiduciary obligations that officials have. 
 
The Spirit of the Law 
We often talk of the "spirit of the law" or the "spirit behind the
law," but we rarely define what we mean. In a footnote, Green and Pearce provide
an excellent definition that is especially applicable to the
government ethics context:<blockquote>

[O]ur understanding of the concept is as a source of potential
self-restraint beyond that which the law would be interpreted to
impose.</blockquote>

According to this definition, if in providing ethics advice, one
simply interprets an ethics provision, the official seeking advice
will be told that he need restrain his conduct only that much. Since
ethics provisions are intended to be minimum requirements, to
capture the spirit of the law, which is usually clearly stated at
the beginning of an ethics code, an ethics adviser needs to go
further, discussing the sorts of self-restraint that would ensure
that there would not be an appearance of impropriety. 
 
For example,
ethics codes rarely make it a violation to give a contract to one's
close friend or romantic partner, primarily due to definitional
problems. If an official seeks advice about participating in a
contract matter involving her romantic partner, should the ethics
adviser say simply, "Romantic partners are not covered by the ethics
code"? Or should the ethics adviser say, "Although romantic partners
are not covered by the ethics code and although no one may find out
that your romantic partner was involved, if it came out (and one has
to assume it will), you and the city could be caught up in a scandal
that would damage not only your reputation, but the city
government's. Therefore, my advice is that you withdraw from
participation in the matter, both directly and through others,
including your aides. Because this is not the law, I cannot bind you
to this advice, but it is the best advice I can provide." 
 
Lack of Expertise 
Many lawyers, and others, argue that lawyers shouldn't share their
ethical judgments because they don't have any special expertise in
what is ethical and what is not. Their expertise is limited to laws. 
 
This simply isn't true. Lawyers do have special expertise in this
area, and this is especially true of government lawyers. They focus
on how process works in civic institutions. Fairness is as central
to what they do every day as it is central to government ethics. Who
else thinks about due process, the fair application of rules,
transparency vs. confidentiality, etc.? People depend on lawyers in
government to write, interpret, and apply laws, and this cannot be
done without considering process, fairness, and ethics. 
 
Officers of the Court 
Green and Pearce depart from the traditional argument that lawyers
are "officers of the court" and, as such, exercise state power. They
say that this is no longer accepted. In any event, it
isn't necessary to make the argument that lawyers should advise beyond the
letter of the law, especially in a government ethics context, where
there are special fiduciary duties and there is a likelihood of damage to
the community if lawyers fail to take extra-legal considerations
into account in providing ethics advice. 
 
A better way to put the "officer of the court" argument is that a
lawyer's highest loyalty is not to the client, but to procedures and
institutions. This is not a radical view, but rather the view of the
1958 Fuller Report, issued jointly by the ABA and the AALS on the
nature of lawyers' professional responsibility in the context of the
adversary system. 
 
In fact, this same report says that lawyers have "an affirmative
duty to help shape the growth and development of public attitudes
towards fair procedures and due process." Given this duty with
respect to private clients, consider how much more important it is for
lawyers to shape the growth and development of public
representatives towards fairness and due process! 
 
Client Autonomy 
Another argument against lawyers straying beyond the
letter of the law is respect for client autonomy. 
This argument contends that lawyers should not force their values
onto others. But as Deborah Rhode has pointed out, this
assumes that both the lawyer and the client accurately recognize the
client's values, something which is certainly not borne out by
reality. 
 
And when the client is someone currently filling a public
position, that is, someone who is not the client, but only acting
for the client, that individual's personal values, even if expressly
and accurately stated, have nothing to do with the client's
autonomy. If, for example, an official comes in saying that he
wants to make sure his sister gets a contract, and wants the ethics
adviser to tell him how this can be done within the law, using any loopholes that may exist, the ethics adviser has no
obligation to do this, even if she could find the requested loopholes (for example, one that allows an official to
indirectly participate in a matter). 
 
Practically Speaking 
The best argument against lawyers straying beyond the letter of the
law is that many government officials don't want them to and,
therefore, will be less likely to seek ethics advice from advisers
who give them an opinion about appearance of impropriety and the
like. 
 
This argument has a great deal of validity, although not, that I know of, any studies to back it up. But does this put an end to the argument? One
approach is for an ethics adviser to treat each official
differently. That is, an ethics adviser might guess which officials
she can take beyond the law and which officials she can take no
further than the law, which officials she can tell that looking for
loopholes is not appropriate and which officials she cannot tell
this to. An alternative is to explain the issue to each official and ask him how he feels, noting this down for further reference (and, possibly, asking each time whether there has been any change in his position). 
 
Another approach is for an ethics adviser to raise this issue with
the mayor, manager, and/or local legislative leader, and tell them
that the problem could be solved if they would make a statement to
officials and employees that it is the role of the ethics adviser to
go beyond the law, because ethics laws are minimum requirements, and
that if officials and employees fail to seek ethics advice and,
therefore, violate an ethics provision or, even if they do not,
cause a scandal, it may mean that they will be fired or removed from
office, or that leaders will do what they can to prevent them from
being re-appointed or from running for office. Such leaders should also send
the message that seeking such ethics advice is necessary by
themselves doing it when a matter arises, and ensuring that the
advice is made public. 
 
But what if government leaders refuse to make such a statement, if
they feel an ethics adviser should not go beyond the law? An ethics
adviser could choose to wait until there is a scandal that involves
conduct that is arguably legal, and raise the issue again. An ethics
adviser could join together with local ethics advisers in the state
to jointly lobby for a different approach to ethics advice. Or an
ethics adviser could choose to resign in protest. 
 
In short, there are alternatives to stopping at the edge of the law
due to an assumption that officials will stop seeking ethics advice.
The alternatives may take time to work, but it is likely that, due to a scandal, there
will come a time when it is possible to get high-level officials to
support a broader approach to ethics advice, especially if the path has already been shown to them. It's worth the effort and the wait. 
 
Self-Interest 
Toward the end of their article, Green and Pearce say something that
seems to have had government ethics advice in mind, but
didn't:<blockquote>

Lawyers may choose to teach that appropriate conduct requires taking
into account not only one's self-interest but also one's obligations
to one's fellows and one's community.</blockquote>

Considering that government ethics is all about putting the
government's and the community's interest ahead of one's self-interest, this may be the
best argument of all in favor of ethics advisers going beyond the
letter of the law. 
 
The authors point out that the best way to present these extra-legal
matters is not in terms of morality, but rather in terms of "civic
responsibility." In the case of government ethics, these means speaking in terms of the
government official's fiduciary obligations to the community and the
damage one official's ethics violation can do to the public trust
and to the reputation of the government and, when frequent scandals
arise, even to the reputation of the community itself and its prospects for attracting
business and dynamic individuals. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Spring Reading: The Government Ethics Adviser As Civics Teacher

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