Summer Reading: Government Lawyers and Confidentiality

Anonymous

Thu, 09/05/2013 - 06:06

Local Government Attorneys

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, "<a href="http://lawreview.wustl.edu/inprint/85/5/Clark.pdf" target="”_blank”">Confidentiality

Norms and Government Lawyers</a>," 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 <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Att…; target="”_blank”">sections 4 and 5 of the Local Government Attorneys chapter</a> of my book Local Government Ethics Programs. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Summer Reading: Government Lawyers and Confidentiality

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