The Obligations of a Local Government Attorney
According to <a href="http://www.nytimes.com/2009/04/07/us/politics/07stevens.html" target="”_blank”">an
article in today's New York </a><span><a href="http://www.nytimes.com/2009/04/07/us/politics/07stevens.html" target="”_blank”">Times</a>,</span>
the reason that <a href="http://www.cityethics.org/node/546" target="”_blank”">charges</a>
were dropped against Sen. Ted Stevens is that federal prosecutors
repeatedly failed to disclose information that may have helped the
defense. Most of the prosecutors' misconduct was discovered and
remedied, as far as possible, by the judge. But the new attorney
general put three new prosecutors on the case, who discovered a serious
nondisclosure of information that had not come to the judge's attention.<br>
<br>
I am writing about this because this case involves two extremely
important and controversial matters involving government lawyers. One
is transparency.<br>
<br>
Government lawyers work hard to keep information
confidential. At a panel at a Council on Governmental Ethics Laws
conference in 2007, on the government attorney-client privilege
(information given to an attorney by a client is considered
confidential), I took the position that information in the hands of
government lawyers should be treated as any other information within a
government agency, and that transparency should be the rule, unless a
statutory exception is involved. That position was attacked not by evil
lawyers trying to hide state secrets, but by government ethics
professionals.<br>
<br>
A couple of them even gave me the big lie in this area: that
information and documents which might be litigated may be kept secret.
The problem with this position is that, in government as in the rest of
life, any information or document <span>might</span>
end up being litigated. Taking this position means that government
officials can keep secret any information that is shared with an
attorney, even when the attorney is not acting as an attorney. Having a
government attorney in the room, then, is the perfect way to undermine
government transparency.<br>
<br>
The second matter involves a government attorney's obligations to the
public. They are not like those of ordinary lawyers, because the
government is not a client like ordinary clients. The government
represents the public. Therefore, the government attorney represents
the public, too.<br>
<br>
The Stevens case shows how important it is for a
government attorney to fulfill his obligations to the public, which
involve fairness and seeking justice, not just winning. By withholding
information, they not only lost the judge's respect and jeopardized the
prosecution, but in the end all their misconduct led to the dropping of
charges, even after conviction.<br>
<br>
A local government attorney has similar obligations. Representing the
people who currently hold the important positions in local government
is not sufficient. Local government attorneys also have obligations to
the public, which involve fairness and justice, not just winning. These
obligations are not as clearly delineated as those of a prosecutor, nor
could they be. But they are nonetheless important.<br>
<br>
Local government attorneys should not withhold information from the
public unless it clearly fits one of the statutory exceptions.
Especially when they are involved in public meetings or hearings, they
should be very careful to present to the public both sides of a matter,
because they are the public's lawyer. Defending a government official
they know is arguably wrong or a law they know has questionable
aspects, or withholding information about an alternative approach, is
not fulfilling their obligations to the public to be fair and
transparent.<br>
<br>
The difference is that, in local government rarely does anything happen
when a lawyer too strongly takes the side of local government officials
or fails to provide complete information to the public. There's no
judge or attorney general who might throw a matter out. In this way,
the obligations of a local government attorney are more serious than
those of a federal prosecutor, even if someone's freedom is not on the
line. What is on the line is the fair working of our democracy.<br>
<br>
Who cares if Sen. Stevens goes to prison? I don't think he should have
anyway, even though <a href="http://www.cityethics.org/node/546" target="”_blank”">I
think</a> the crimes he was convicted of were the least of his
misconduct. But if a local government hides information from the public
or presents questionable arguments to the public, this undermines
people's trust in government and makes government not the
representative of the public, but its adversary.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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