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Duty Does Not Equal Right, Duty Does Not Equal Right . . .
Wednesday, November 24th, 2010
Robert Wechsler
Update: December 1, 2010 (see below)
Last week, the Texas Attorney General issued a legal opinion on the role of the county attorney in representing and advising the El Paso County ethics commission, which was established in 2009.
The county attorney herself requested the opinion on behalf of the ethics commission, which appears to me to be a conflict of interest in and of itself, since the request asks for the county attorney to have exclusive authority not only to represent the EC, but also to approve the hiring of alternative legal counsel.
The EC chair, himself an attorney, expressly requested that his letters to the county attorney's office requesting changes to the request, as well as an op-ed piece he wrote calling for independent legal advice for the EC, be included as addenda to the request. The request does not reflect the changes he suggested, nor does the AG opinion mention the chair's addenda.
The county attorney argues that the EC is a "county entity," that the county attorney has a constitutional and statutory duty to represent county entities, and that because an officer cannot "be ousted from his legal duties," the EC may not hire outside counsel "without the express consent of and within the sole discretion of [the county attorney] to determine if she is unable or unwilling to provide said legal services."
I think there's a big jump in this argument, and I strongly disagree with it. When a client chooses to seek outside counsel, this is not "ousting" their counsel from legal duties. The county attorney's argument seriously distorts the concept of duty. A duty means that you are required to provide services upon request, not that you have a right to prevent others from providing these services upon request. This is like arguing that because a doctor has a duty to treat a patient, that patient cannot get a second opinion without the doctor's approval. No one in her right mind would argue that. What is it about lawyers that merits turning the concept of duty topsy-turvy?
What does the attorney general think of this argument? He agrees, of course. He goes back to a 2003 AG opinion involving the same issue with respect to the El Paso County Bail Bond Board. The AG said that this board could not hire outside legal counsel without the county attorney's consent. The reasoning was, according to the AG, that statutes "imposed a duty on the county attorney to advise and represent the Bail Bond Board and that the county attorney could not be involuntarily divested of that duty." In other words, the AG made the same irrational, unsupported jump from duty to right.
It's also a wonder that any government office would respond to a request written by the very individual seeking this sole right and yet wearing the hat of the EC's attorney. It took almost a year to write an opinion based on an earlier opinion, which implies either that there is an enormous backlog, or that it took a lot of lobbying to have this perverse reasoning applied in a government ethics context, where an EC's independence is extremely important (and completely ignored by the AG).
I haven't seen this perverse reasoning employed elsewhere, but whenever perverse reasoning in support of a lawyer's rights is treated as respectable in one jurisdiction, the word is likely to get around.
Of course, the county attorney, in her press release, is portraying herself and the AG as defenders of the people's pocketbook, as if this short-term view of money is the principal concern when it comes to conflicts of interest. By preventing the EC from getting outside legal counsel, the AG has ensured that the county legislative body, which appoints the county attorney, can effectively withhold adequate representation if the EC wants to file an action, defend itself from an action, or get a second opinion, even when council members themselves are involved. This could allow unethical conduct to be ignored, which could cost taxpayers far more in the long run (monetarily and otherwise) than any monetary savings from using only the county attorney's office.
I believe that every EC should be independent, and this cannot happen without independent counsel and staff selected by the EC. It's bad enough that most ECs are dependent on the advice and representation of political appointees, usually due to little funding. It's even worse when this dependence is declared to be a statutory requirement.
I am not a lawyer, and therefore the AG's opinion does not apply to me. If the El Paso EC wants to discuss a matter with a local government ethics professional, I'd be happy to offer my advice, at no cost.
Update: December 1, 2010
The former EC chair referred to above resigned from the EC today in protest against the AG's decision and the way it was handled both by the county attorney and by the other EC members. He puts special emphasis on the EC's lack of independence, and the conflicts of both the county attorney and two members of the EC.
According to the letter of resignation, one EC member is the husband of an assistant county attorney, and another EC member is a law partner of the county attorney's brother. Both of them appear to have participated in the discussion concerning the county attorney's representation of the EC.
Robert Wechsler
Director of Research-Retired, City Ethics
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Last week, the Texas Attorney General issued a legal opinion on the role of the county attorney in representing and advising the El Paso County ethics commission, which was established in 2009.
The county attorney herself requested the opinion on behalf of the ethics commission, which appears to me to be a conflict of interest in and of itself, since the request asks for the county attorney to have exclusive authority not only to represent the EC, but also to approve the hiring of alternative legal counsel.
The EC chair, himself an attorney, expressly requested that his letters to the county attorney's office requesting changes to the request, as well as an op-ed piece he wrote calling for independent legal advice for the EC, be included as addenda to the request. The request does not reflect the changes he suggested, nor does the AG opinion mention the chair's addenda.
The county attorney argues that the EC is a "county entity," that the county attorney has a constitutional and statutory duty to represent county entities, and that because an officer cannot "be ousted from his legal duties," the EC may not hire outside counsel "without the express consent of and within the sole discretion of [the county attorney] to determine if she is unable or unwilling to provide said legal services."
I think there's a big jump in this argument, and I strongly disagree with it. When a client chooses to seek outside counsel, this is not "ousting" their counsel from legal duties. The county attorney's argument seriously distorts the concept of duty. A duty means that you are required to provide services upon request, not that you have a right to prevent others from providing these services upon request. This is like arguing that because a doctor has a duty to treat a patient, that patient cannot get a second opinion without the doctor's approval. No one in her right mind would argue that. What is it about lawyers that merits turning the concept of duty topsy-turvy?
What does the attorney general think of this argument? He agrees, of course. He goes back to a 2003 AG opinion involving the same issue with respect to the El Paso County Bail Bond Board. The AG said that this board could not hire outside legal counsel without the county attorney's consent. The reasoning was, according to the AG, that statutes "imposed a duty on the county attorney to advise and represent the Bail Bond Board and that the county attorney could not be involuntarily divested of that duty." In other words, the AG made the same irrational, unsupported jump from duty to right.
It's also a wonder that any government office would respond to a request written by the very individual seeking this sole right and yet wearing the hat of the EC's attorney. It took almost a year to write an opinion based on an earlier opinion, which implies either that there is an enormous backlog, or that it took a lot of lobbying to have this perverse reasoning applied in a government ethics context, where an EC's independence is extremely important (and completely ignored by the AG).
I haven't seen this perverse reasoning employed elsewhere, but whenever perverse reasoning in support of a lawyer's rights is treated as respectable in one jurisdiction, the word is likely to get around.
Of course, the county attorney, in her press release, is portraying herself and the AG as defenders of the people's pocketbook, as if this short-term view of money is the principal concern when it comes to conflicts of interest. By preventing the EC from getting outside legal counsel, the AG has ensured that the county legislative body, which appoints the county attorney, can effectively withhold adequate representation if the EC wants to file an action, defend itself from an action, or get a second opinion, even when council members themselves are involved. This could allow unethical conduct to be ignored, which could cost taxpayers far more in the long run (monetarily and otherwise) than any monetary savings from using only the county attorney's office.
I believe that every EC should be independent, and this cannot happen without independent counsel and staff selected by the EC. It's bad enough that most ECs are dependent on the advice and representation of political appointees, usually due to little funding. It's even worse when this dependence is declared to be a statutory requirement.
I am not a lawyer, and therefore the AG's opinion does not apply to me. If the El Paso EC wants to discuss a matter with a local government ethics professional, I'd be happy to offer my advice, at no cost.
Update: December 1, 2010
The former EC chair referred to above resigned from the EC today in protest against the AG's decision and the way it was handled both by the county attorney and by the other EC members. He puts special emphasis on the EC's lack of independence, and the conflicts of both the county attorney and two members of the EC.
According to the letter of resignation, one EC member is the husband of an assistant county attorney, and another EC member is a law partner of the county attorney's brother. Both of them appear to have participated in the discussion concerning the county attorney's representation of the EC.
Robert Wechsler
Director of Research-Retired, City Ethics
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Comments
theresa caballero (not verified) says:
Tue, 2010-11-30 13:11
Permalink
Dear Mr. Wechsler,
Great piece and right on point! Perverse does not begin to descibe the opinion or Jo Anne Bernal, the appointed county attorney of El Paso.
What you need to know is that while the paperwork reflects that Bernal asked for the AG opinion, the truth is that the opinion was requested upon the insistence of Stuart Leeds, the then chairman of the EC. Leeds believes the EC should be independent and the County Attorney should not "advise" it. Bernal resisted seeking the opinion because her position was she is that she has the right to 1) represent the EC (this is actually written into the statute, a statute authored by her friend and ally in the TX senate, Eliot Shapleigh) and 2) ADVISE the EC (the statute is silent as to who ADVISES the EC).
Stuart Leeds argued that the County Attorney should not be advising the EC because it is a conflict of interest. Bernal said that while she is subject to the EC she can also be its advisor. Leeds said no. I don't accept this. I want an AG opinion. A vote was taken and the EC asked for an AG opinion. Bernal told the EC only she could write and ask for the opinion. So she drafted the request and used the request to make her argument that she is the legal advisor. Talk about perverse.
When the TX AG finally responded, he never really addressed the question of legal advisor v. legal representative. Bernal has told the community she "won" the issue when in fact the opinion does not address the actual question. This is just more evidence of the lack of ethics and poor quality of legal advice being dispensed to the EC by Bernal.
Also you should know that all other members of the EC (there are nine others) think there is nothing wrong with the CA being the legal advisor. Leeds has fought by himself to keep the EC independent. It just goes to show that the EC and Ethics boards are, in reality, a real waste. They usually are made up of people who are the pets of those in power, and are there to protect those powers, and excercise no independent thought. You should see the Texas grievance committee (those in charge of regulating lawyers' ethics). Once you understand how bad they are you will understand how the TX AG ( a lawyer) could write such an opinion and how the likes of Bernal continue to practice law.
Stuart Leeds (not verified) says:
Tue, 2010-11-30 13:12
Permalink
Thanks, Robert. I just sent/forwarded your blog far and wide. Let's see what happens.
SLeeds
Visitor (not verified) says:
Wed, 2010-12-01 23:23
Permalink
We have long had serious ethics problems at the top in El Paso, TX. It was nice to read your blog which pointed out in plain language what we know to be true and what we have ben told by the highest authorities to not be true here in El Paso. County Attorney Joanne Bernal is part of a very dangerous group that has controlled the city for many years and been at the root problem of corruption here.
We will never recover from the damage they have done to our town.
Stuart Leeds has tried to root out the corruption but it is like shoveling sand in the desert.