Who Is a Local Government Attorney's Client? -- A Conflict of Interest Question

Last week, the New York Times reported that for six months the White House refused to open an e-mail from the Environmental Protection Agency, a report stating that greenhouse gases are pollutants that must be controlled. The White House considered the EPA report to be in some sort of "e-mail limbo," without official status. So nothing had to be done about it.

Only a lawyer could have come up with the concept that, by sticking your head in the sand, something right before your eyes has no official status. But the last sort of lawyer who should think up this sort of scheme is a government lawyer, because a government lawyer's client is different from any other lawyer's client.

This is a serious issue at every level of government:  Who is a government lawyer's client?

Click here to read the rest of this blog entry.

In the EPA e-mail matter, the lawyer who thought up this scheme almost certainly thought his client was George W. Bush, not the Office of the President nor the public interest. That is, the lawyer was acting not in the public interest, but in the personal interest of the individual whom he considered his client. The alternative was representing the public position that individual held, with all of its legal and ethical obligations. In other words, the issue of who is a government lawyer's client is in many ways just another conflict of interest issue.

Most judges and academics who write about these things feel that "the public interest" is neither clear enough a concept to follow, nor something that government lawyers should determine for themselves, since they are not directly accountable to the people. But these judges and academics too often treat the public interest as something about content (e.g., for or against the control of greenhouse gases), when it is usually about process (e.g., responsibly dealing with a Supreme Court order, as the EPA was doing in this matter). Due process, separation of powers, constitutional rights, statutory requirements, these are what government lawyers usually consider when they think about "the public interest," and these are very often clear, and government lawyers very often know which actions are appropriate and which are not.

This EPA e-mail scheme is a perfect example. It breaks laws (Freedom of Information laws do not provide for e-mail limbo), it undermines a Supreme Court order, it hampers intra-governmental communication, and it sets a dangerous precedent for all levels of government. And all of this just so that the man in the White House can act irresponsibly, against the obligations of his position and against the public interest as determined not by a government lawyer, but by the Supreme Court.

And yet a lawyer -- probably more than one -- did what they knew was wrong and what they knew would never be reviewed by a court. That is, they acted believing that the legality of their advice would never be questioned, that their client would not be held accountable, and that their legal ethics would not be questioned, because they did what their client wanted, so long as "client" is defined narrowly. Which it conveniently is by most academics and judges.

Here's a local government example. It's election time, and a controversial matter is on the agenda of a Town Meeting (it's a Connecticut example). The First Selectman (effectively the mayor; he's an attorney) does not want the matter to be discussed in public soon before the election. So he calls an illegal Board of Selectmen meeting (illegal because not enough notice was given under the Freedom of Information Act) for Monday morning, the morning of the Town Meeting , and he settles the matter. At the Town Meeting, the Town Attorney insists that, because the matter is no longer at issue, the Town Meeting cannot discuss it. There is no law that says this, and the only harm that could come from such a discussion would be to the First Selectman, but the Town Attorney knows that his position will not be questioned, and no discussion of the matter is held.

Two citizens take the First Selectman before the state Freedom of Information Commission, and both the Town Attorney and the First Selectman say that they didn't realize that 24 hours' notice does not include weekend days (notice was given Friday afternoon at 5 pm, just as Town Hall was closing for the weekend, so that no one knew about the meeting). The Town Attorney has been in office for over 25 years and knows full well that weekends don't count, but he knows this is hard to prove.

Was the Town Attorney just providing zealous representation to the First Selectman? No. He knew the First Selectman was doing something illegal, and he became a co-conspirator. He knew that the public interest was in following the laws, but he broke one, made another one up, and defended his action by misrepresenting his legal acumen. He knew that the public interest was in discussing what was on the Town Meeting agenda, but he knew that this was not in the First Selectman's personal interest as a candidate.

Like so many matters in government ethics, it all comes down to a conflict between public and personal interest. But the matter of a government lawyer's client is almost never presented like this. I think it should be.

Robert Wechsler
Director of Research-Retired, City Ethics

---