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Summer Reading: Government Lawyers and Confidentiality
Thursday, September 5th, 2013
Robert Wechsler
I did a huge amount of reading this summer for a paper I wrote for the journal Public Integrity (and otherwise). The first piece of reading I'm going to talk about is one of the otherwise.
Washington University in St. Louis law professor Kathleen Clark's law review article, "Confidentiality Norms and Government Lawyers," 85 Wash. U. L. Rev. (2008), is on a topic I researched many years ago and never wrote about, at least at any length. Now I don't have to write it, because Clark did such an excellent job. It's too bad it took me so long to discover it.
As Clark notes, "government lawyers face the confidentiality issue every day." Generally, they tend to favor confidentiality over transparency. It's the way attorneys are taught, and what the rules of professional conduct say.
A Government Attorney's Client
Confidentiality is intended to protect the client. Therefore, an important consideration is, who is the government attorney's client. Clark takes the position that there is no one answer, that one must "examine the structure of authority within government to identify which of several possible entities is actually the client." In different contexts and administrative structures, where the lawyer is playing different roles, the client might be the board or agency, its chair or director, the government, or the public. This matters because one can, of course, disclose information to one's client. So, the broader the client, the less confidentiality there is.
It is often said that the public cannot be a government attorney's client, because everyone has a different idea what the public interest is. But Clark points out that many government attorneys have "client-like decision-making authority." This is true, for example, of ethics commission directors, in certain situations. It is appropriate for these lawyers to consider the public interest in making their decisions. Why, I wonder, can't they consider the public interest in determining the confidentiality of information?
Transparency Laws = Consent
The most important of Clark's arguments, and one that is too often overlooked, is that whereas confidentiality in the private sphere may be waived by the client's consent, "government clients have consented to large amounts of disclosure by their lawyers through enactment of open government laws. ... the lawyer need not rely solely on a particular government official’s ad hoc decision about whether to consent. Instead, that official is bound to respect the legal regime controlling government information. If that legal regime requires that information be disclosed, then the institutional client has consented to its disclosure."
Rules of professional conduct should recognize this, as the District of Columbia's do. In this land of government attorneys, lawyers are permitted to disclose information “when . . . required by law or court order,” and government lawyers may disclose when “permitted or authorized by law.” In short, the rules recognize that for government attorneys, laws override rules otherwise intended for the private sphere.
Every jurisdiction should do this, because with respect to attorney-client confidentiality, the private and public spheres are very different. As Clark wrote, "In the lawyer-client setting, there is an overriding expectation of confidentiality, with only limited exceptions to confidentiality. In the government setting, by contrast, there is an expectation of transparency, with important but limited exceptions to that transparency."
Why is this so? Because the information that is being kept confidential belongs to the client, and the private lawyer has a fiduciary duty to the client to keep it confidential. Government information belongs to the public, and a government attorney has a fiduciary duty to the public to disclose it, except where it fits an exception set by law.
Looking at the situation in this manner makes it far less important who a government attorney's client is, because one need not seek that client's consent to disclose otherwise confidential information. Even if it is a state law that provides the consent, as is common, a city or county is an instrumentality of a state and, therefore, consents to what the state consents to.
Although consent is not necessary, Clark recommends that governments "adopt a set of procedures that lawyers can use to get approval of such disclosures," so that there is consistency in doing this. She sets out standards and procedures to help in doing this.
Reporting of Wrongdoing
Another major argument Clark makes is that confidentiality rules need to be revised in order to "clarify that
government lawyers have the discretion to disclose government wrongdoing. Examination of case law and statutes suggests a norm that governments—unlike private sector clients—do not have a legitimate interest in keeping secret information about their own wrongdoing." In fact, there are many laws that require government officials, including lawyers, to report misconduct, and they are protected from retaliation for doing so. In addition, "courts have permitted lawyers for a fiduciary to disclose the fiduciary’s wrongdoing to the beneficiaries." Local government attorneys represent the organization that acts as the community's fiduciary, spending its funds and making decisions about its management.
Clark suggests that state supreme courts "set up a procedure requiring the lawyer to give the government advance notice of her plan to disclose." What Clark doesn't say is whether "the government" includes an ethics commission, that is, whether alerting an ethics commission, at least under certain circumstances, would be acceptable.
Clark also notes that the First Amendment "requires that government employees be permitted to discuss their work unless there is a good reason that such disclosures cannot be allowed."
Application to Local Government Ethics Programs
Clark's arguments apply in many ways to local government ethics. Many government attorneys are involved in local government ethics programs. In fact, such programs are generally run by attorneys. Government attorneys provide ethics advice (officially and unofficially), advise the ethics commission, investigate ethics complaints (and are questioned as part of such investigations), and advocate for both parties to an ethics proceeding. In addition, an attorney has been involved, one way or another, with much of the information sought to be discovered in an investigation.
Each of these government attorney roles is a public role, and yet confidentiality is the norm. Often there is no local or state law that applies to the various roles.
In addition, there is the issue of what a government attorney is required to do if she has information about possible ethical misconduct by an official, attorney, contractor, or other person subject to the ethics code. One of the article's footnotes quotes from the decision in In re A Witness Before Special Grand Jury 2000-2, 288 F. 289, 293 (7th Cir. 2002), denying former Illinois Secretary of State George Ryan’s assertion of attorney-client privilege in a federal criminal investigation: “It would be both unseemly and a misuse of public assets to permit a public official to use a taxpayer-provided attorney to conceal from the taxpayers themselves otherwise admissible evidence of financial wrongdoing, official misconduct, or abuse of power.”
There are laws, court decisions, and state transparency commission decisions that make special exceptions for government ethics proceedings. It is important for ethics programs to work within these laws and decisions and, where they are problematic, try to have them changed.
For more on this topic, see sections 4 and 5 of the Local Government Attorneys chapter of my book Local Government Ethics Programs.
Robert Wechsler
Director of Research-Retired, City Ethics
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Washington University in St. Louis law professor Kathleen Clark's law review article, "Confidentiality Norms and Government Lawyers," 85 Wash. U. L. Rev. (2008), is on a topic I researched many years ago and never wrote about, at least at any length. Now I don't have to write it, because Clark did such an excellent job. It's too bad it took me so long to discover it.
As Clark notes, "government lawyers face the confidentiality issue every day." Generally, they tend to favor confidentiality over transparency. It's the way attorneys are taught, and what the rules of professional conduct say.
A Government Attorney's Client
Confidentiality is intended to protect the client. Therefore, an important consideration is, who is the government attorney's client. Clark takes the position that there is no one answer, that one must "examine the structure of authority within government to identify which of several possible entities is actually the client." In different contexts and administrative structures, where the lawyer is playing different roles, the client might be the board or agency, its chair or director, the government, or the public. This matters because one can, of course, disclose information to one's client. So, the broader the client, the less confidentiality there is.
It is often said that the public cannot be a government attorney's client, because everyone has a different idea what the public interest is. But Clark points out that many government attorneys have "client-like decision-making authority." This is true, for example, of ethics commission directors, in certain situations. It is appropriate for these lawyers to consider the public interest in making their decisions. Why, I wonder, can't they consider the public interest in determining the confidentiality of information?
Transparency Laws = Consent
The most important of Clark's arguments, and one that is too often overlooked, is that whereas confidentiality in the private sphere may be waived by the client's consent, "government clients have consented to large amounts of disclosure by their lawyers through enactment of open government laws. ... the lawyer need not rely solely on a particular government official’s ad hoc decision about whether to consent. Instead, that official is bound to respect the legal regime controlling government information. If that legal regime requires that information be disclosed, then the institutional client has consented to its disclosure."
Rules of professional conduct should recognize this, as the District of Columbia's do. In this land of government attorneys, lawyers are permitted to disclose information “when . . . required by law or court order,” and government lawyers may disclose when “permitted or authorized by law.” In short, the rules recognize that for government attorneys, laws override rules otherwise intended for the private sphere.
Every jurisdiction should do this, because with respect to attorney-client confidentiality, the private and public spheres are very different. As Clark wrote, "In the lawyer-client setting, there is an overriding expectation of confidentiality, with only limited exceptions to confidentiality. In the government setting, by contrast, there is an expectation of transparency, with important but limited exceptions to that transparency."
Why is this so? Because the information that is being kept confidential belongs to the client, and the private lawyer has a fiduciary duty to the client to keep it confidential. Government information belongs to the public, and a government attorney has a fiduciary duty to the public to disclose it, except where it fits an exception set by law.
Looking at the situation in this manner makes it far less important who a government attorney's client is, because one need not seek that client's consent to disclose otherwise confidential information. Even if it is a state law that provides the consent, as is common, a city or county is an instrumentality of a state and, therefore, consents to what the state consents to.
Although consent is not necessary, Clark recommends that governments "adopt a set of procedures that lawyers can use to get approval of such disclosures," so that there is consistency in doing this. She sets out standards and procedures to help in doing this.
Reporting of Wrongdoing
Another major argument Clark makes is that confidentiality rules need to be revised in order to "clarify that
government lawyers have the discretion to disclose government wrongdoing. Examination of case law and statutes suggests a norm that governments—unlike private sector clients—do not have a legitimate interest in keeping secret information about their own wrongdoing." In fact, there are many laws that require government officials, including lawyers, to report misconduct, and they are protected from retaliation for doing so. In addition, "courts have permitted lawyers for a fiduciary to disclose the fiduciary’s wrongdoing to the beneficiaries." Local government attorneys represent the organization that acts as the community's fiduciary, spending its funds and making decisions about its management.
Clark suggests that state supreme courts "set up a procedure requiring the lawyer to give the government advance notice of her plan to disclose." What Clark doesn't say is whether "the government" includes an ethics commission, that is, whether alerting an ethics commission, at least under certain circumstances, would be acceptable.
Clark also notes that the First Amendment "requires that government employees be permitted to discuss their work unless there is a good reason that such disclosures cannot be allowed."
Application to Local Government Ethics Programs
Clark's arguments apply in many ways to local government ethics. Many government attorneys are involved in local government ethics programs. In fact, such programs are generally run by attorneys. Government attorneys provide ethics advice (officially and unofficially), advise the ethics commission, investigate ethics complaints (and are questioned as part of such investigations), and advocate for both parties to an ethics proceeding. In addition, an attorney has been involved, one way or another, with much of the information sought to be discovered in an investigation.
Each of these government attorney roles is a public role, and yet confidentiality is the norm. Often there is no local or state law that applies to the various roles.
In addition, there is the issue of what a government attorney is required to do if she has information about possible ethical misconduct by an official, attorney, contractor, or other person subject to the ethics code. One of the article's footnotes quotes from the decision in In re A Witness Before Special Grand Jury 2000-2, 288 F. 289, 293 (7th Cir. 2002), denying former Illinois Secretary of State George Ryan’s assertion of attorney-client privilege in a federal criminal investigation: “It would be both unseemly and a misuse of public assets to permit a public official to use a taxpayer-provided attorney to conceal from the taxpayers themselves otherwise admissible evidence of financial wrongdoing, official misconduct, or abuse of power.”
There are laws, court decisions, and state transparency commission decisions that make special exceptions for government ethics proceedings. It is important for ethics programs to work within these laws and decisions and, where they are problematic, try to have them changed.
For more on this topic, see sections 4 and 5 of the Local Government Attorneys chapter of my book Local Government Ethics Programs.
Robert Wechsler
Director of Research-Retired, City Ethics
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