Willful Ignorance by Government Attorneys
Over the weekend, I read a <a href="http://works.bepress.com/rebecca_roiphe/1/" target="”_blank”">March 2010 draft</a>
of Rebecca Roiphe's law review article "The Ethics of Willful
Ignorance," which appeared in the <a href="https://articleworks.cadmus.com/geolaw/zs000111.html" target="”_blank”"><i>Georgetown
Journal of Legal Ethics</i>, Volume 24, Issue 1</a> (Winter 2011).<br>
<br>
Willful (or deliberate) ignorance (or blindness) describes what
happens when someone has reason to believe that something is wrong
(often that misconduct has occurred) and chooses not to look further
into the matter (often in order to be able to deny any knowledge of misconduct). Roiphe looks at willful ignorance by
a citizen in a criminal context and by a lawyer in criminal and
civil contexts. She notes that in certain criminal situations,where
there is a statutory obligation to know, a citizen who willfully
ignores facts that would trigger such an obligation can be held
responsible. For example, if someone has a reason to believe that
there are illegal substances in a car she is driving, she has an
obligation to look for them. If she does not, she can still be held
guilty of transporting those substances (the principal case is
<i>United States</i> v. <i>Jewell</i>, 532 U.S. 697 (en banc), <i>cert. denied, </i>426 U.S. 951
(1976)).<br>
<br>
Roiphe looks at how the Rules of Professional Conduct deal with
willful ignorance. Model Rule 1.2(d) says that "A lawyer shall not
counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent."<br>
<br>
Rule 1.0(f) defines knowing as follows:<ul>
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the
fact in question. A person's knowledge may be inferred from
circumstances.</ul>
Roiphe believes that this definition allows an attorney to choose
not to read documents that may contain evidence of misconduct. An
attorney is not required to look in his file, even if he has reason
to believe that there are the equivalent of illegal substances in it. In other words,
citizens are held to a higher standard than lawyers hold themselves to.<br>
<br>
The principal argument in favor of allowing attorneys to be
willfully ignorant of their clients' misconduct is that requiring
them to investigate their own clients would ruin the attorney-client
relationship. This argument does not work for organization lawyers,
because organization officers and employees are not their clients; the organization is. Investigating and reporting
official misconduct is in the interest of its client organization.<br>
<br>
Comment 3 to Rule 1.13, on the organization as client, sort of recognizes this by adding to the
definition of "knowledge," "a lawyer cannot ignore the obvious." Roiphe notes that
another reason for this addition is that, within a client organization.
"the tension between the duty of confidentiality and the reporting
obligation plays no role." That is, if an organization's attorney
suspects that an employee is engaged in misconduct, the attorney is
in no way harming the client by reporting the suspected misconduct
to the appropriate internal authority. In fact, the attorney is
doing the client a favor.<br>
<br>
Roiphe also notes that the Rules on competence and diligence (Rules
1.1 and 1.3) themselves impose an obligation to know. How can you
effectively advise a client if you don't know the facts?<br>
<br>
<b>The Government Attorney Context</b><br>
Roiphe does not deal with government attorney scenarios, but they are essentially organizational scenarios with the attorney having an additional obligation, to the public. A citizen generally has limited
obligations. An attorney generally has greater obligations due to
the special role lawyers play in our legal system, and these
obligations are recognized, if not clearly codified, in the Rules of
Professional Conduct. And a government attorney has the greatest
obligations of all, both as lawyer and as public servant.<br>
<br>
This is why a government attorney should not be allowed to plead willful ignorance. If she has reason to believe that
officials or employees are engaged in ethical misconduct, or that
they are giving her false information or withholding information,
she has an obligation to question what is told her at face value,
to investigate further, and to report her suspicions to the
appropriate authority, which in those jurisdictions with an ethics
program (or that employ a state or regional ethics program) is the
ethics commission, ethics officer, or inspector general.<br>
<br>
Let's say that a government attorney has been told that family
members and business associates of council members are being given
no-bid contracts, but the attorney has no hard evidence. If the attorney is approached by someone from the
procurement department about the legality of one of these contracts,
but is not told that the contract is going to an official's family
member, does the attorney have an obligation to ask questions about
the contractor and about why the contract is not being bid out? If
the attorney does ask, and the procurement officer tells her that no
relative is involved in any way with the contractor, and that the
contractor is the sole producer of the required materials, should
the procurement officer accept this or investigate further?<br>
<br>
I believe that the attorney should investigate further, stop the contract from going forward, if possible, and report if it appears that misconduct has occurred. In fact, even if no official or employee seeks the attorney's advice, I believe she has an obligation to look further into the matter or go to someone who has more expertise in the area to do so.<br>
<br>
A government attorney who gets a constant flow of informal
information about what is going on in her government and who
understands more than anyone else the legal implications of this
information has a special obligation not only to the client
organization, but also to the community itself, to investigate
reasonable suspicions of misconduct and not to accept without
further inquiry the word of those possibly involved in the
misconduct.<br>
<br>
Willful ignorance solves a lot of problems for a government
attorney, whose job is hard enough without feeling required to look
into suspicions of misconduct by those who are not only the closest
thing they have to clients (the government as client is abstract),
but also often party allies, social acquaintances or even friends,
as well as bosses who can fire her.<br>
<br>
But the government attorney's situation is not best solved by allowing willful ignorance. It is better solved by doing what is
possible to make the position of government attorney as independent
and non-political as possible, by preventing partisan involvement
and by discouraging socializing with those one advises. Roiphe talks
about the need for organization attorneys to distance themselves
from corporate officers. This applies equally in the government
context.<br>
<br>
Even when attorneys do not advise misconduct, are not involved in it, or even have no
direct knowledge of it, they often have an important role in the
misconduct. Sometimes they approve parts of the transaction, sometimes they argue for the matter before a government body, sometimes they say there is an attorney-client privilege that prevents the matter from being discussed publicly, taking a body into closed session. Government attorneys are similar to someone transporting
drugs in their car, and there is no way for the public to know
whether they knew there were illegal substances in their legal file
or not. Therefore, it doesn't matter how much they know, only whether they knew enough to inquire further.<br>
<br>
Roiphe notes that criminal enterprises "play with division of labor
and responsibility. They succeed by creating a sum more powerful
than the enterprise's parts and they do so, in part, by making sure
that no individual and no firm is the repository for all the
knowledge or all the wrongdoing. This generates plausible
deniability, which protects the individuals along with the
enterprise. Lawyers often contribute to this dynamic by defining
their job narrowly."<br>
<br>
Government attorneys have much broader obligations than a criminal
attorney. In order to fulfill their obligations to the public, they
must look in the file, ask questions, and not necessarily accept the
answers they are given. The public has a reason to expect its
attorneys to investigate and report reasonable suspicions of
misconduct, and to confront officials concerning the legality of
their conduct. If they don't feel comfortable confronting them (and
this is reasonable), they should turn the matter over to the ethics
commission or inspector general.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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