Should a Local Government Attorney Represent Both the Executive and Legislative Branches?
As I have noted again and again, there is no more difficult, conflicted
role than that of a local government attorney. In small towns, there's
not a lot that can be done. But in cities and counties, there are
several things that can be done to lessen the local government
attorney's conflicts.<br>
<br>
This issue is currently being discussed in Hawaii County, by a charter
revision commission, according to <a href="http://www.margaretwille.com/home/?q=node/121" target="”_blank”">the Margaretwille
Blog</a>. The specific issue involves the county's corporation counsel
representing both the executive and legislative branches. The
corporation counsel is selected by and reports to the mayor, and sits
on the mayor's cabinet. However, the corporation counsel also
represents the council. There is a legislative research counsel to deal
with legislation, but this counsel cannot contradict any opinions of
the corporation counsel. The council can, by a two-thirds majority
vote, hire special counsel, but this option is never used unless there
is a clear, specific conflict of interest.<br>
<br>
The current corporation counsel, faced with the possibility of a
separate legislative counsel office or a deputy corporation counsel
devoted to the council, sadly appears to be in denial. "I do not feel
conflicted," he said, and he has a concern with the cost of a separate
legal office. If he doesn't feel conflicted, it can only be because he
hasn't thought about all the possible conflicts.<br>
<br>
Yes, a mayor and council are both supposed to be acting in the public
interest, but they are two distinct entities with different
interpretations of the public interest, different obligations in
representing their constituents, and a responsibility to oversee each
other. Law is central to everything government does, and if one
branch's interpretation completely controls the options of the other
branch, there is a serious problem. And the corporation counsel's
conflicted role is at the center of this problem.<br>
<br>
The corporation counsel rejected two ideas that were floated, one
to remove the corporation counsel from the mayor's cabinet, the other
to assign an assistant to solely represent the council. He seems to
have no interest in appearances of impropriety, nor a responsible view
of government transparency. Take this exchange between a charter
revision commission member and the corporation counsel:<br>
<br>
<div><span>Ms.
Jarman</span>: [The corporation counsel] meets with the Mayor and
the department heads every---what, Monday morning? When do you guys
meet?<br>
<span>Corporation Counsel</span>:
That’s secret and classified.<br>
</div>
<br>
Here's what the corporation counsel said soon after this. I think it
reflects the common view of this topic among local government attorneys.<br>
<br>
<div>I do not feel conflicted. Talk about
the tightrope and everything, I recognize that it is a
challenge of the job. All government attorneys are placed in a position
of having to represent multiple clients that sometimes may have
differing interests. If not--and in the rules of professional
responsibility ... there are
specific rules that exempt or allow government attorneys to have or
enjoy this multiple representation--you would have to hire a separate
attorney for every separate department, every separate councilmember,
every separate Mayor, and you are going to bankrupt the County. That’s
the reality. So, what are the safeguards that are in place to ensure
that one side isn’t getting short changed over the other? It’s those
Rules of Professional Conduct, if ever, ever, any client feels they are
not being zealously represented by me or any deputy in my office, they
have the right, they have the absolute right to report us to the Office
of the Disciplinary Council of the Supreme Court.<br>
</div>
<br>
Filing a disciplinary action against a government attorney is not a
reasonable safeguard. Not only should it be a last-ditch act, but it is
useless in the case of an ongoing conflict such as the one being
questioned by the charter revision commission. The fact that the
corporation counsel had to exaggerate the conflict in his role by
referring to every department (the departments are responsible to one mayor) and
every council member (who only need separate counsel when a personal
issue arises, such as alleged bribery) shows how little he truly cares
about dealing responsibly with the actual conflicts that face a local
government attorney.<br>
<br>
What is the actual cost of having separate legislative counsel? If
there is not enough work for a full-time legislative counsel, then the
council can contract with a lawyer or law firm so that it has part-time
counsel. If there is enough work for one lawyer, then one lawyer could
be dropped or moved from the corporation counsel's office, and there
would be no extra cost.<br>
<br>
The rewards of separate counsel are great, and the costs low.
Corporation counsel, both in terms of personal power and the power of
the appointing mayor, will usually oppose this. But corporation counsel
has a conflict with respect to this issue, and if he or she cares about
conflicts, he or she should not participate in the matter.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---</p>