Legal Ethics Should Not Be Confused with Government Ethics

Many local government attorneys insist that government ethics laws should not apply to them because they are covered by legal ethics rules. In fact, some government ethics codes have express exceptions for attorneys. I have always insisted that the two are very separate and should not be confused with each other. A recent Ohio Board of Professional Conduct of the Supreme Court decision shows how separate they are.

Disciplinary Counsel v. Rosen, 2015-Ohio-3420 (Ohio Aug. 26, 2015) involves an assistant attorney general who admitted to having improperly accessed a criminal justice database to seek information about individuals that either she or her friends were dating. The violation she admitted to was of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law).

The board found that there were mitigating factors, but no aggravating factors. Thus, the board did not recognize that government officials have a special fiduciary duty to citizens, including the proper use of government property. Nearly every government ethics code recognizes this by making it a violation to use government property for personal purposes, as the defendant did in this matter. But disciplinary rules do not recognize this special duty to citizens, which is the basis for most government ethics laws.

Therefore, lawyers must be subject to both disciplinary rules and government ethics laws. Legal ethics should not be confused with or used to except lawyers from government ethics laws, training, disclosure, or enforcement.

Robert Wechsler
Director of Research-Retired, City Ethics