Chief Legal Officers, Local Government Attorneys, and Ethics Officers

The Schumpeter column in this week's Economist talks about the corporate chief legal officer (CLO), who due to the Sarbanes-Oxley Act's requirements has become a major figure at the top of every big corporation. Much as the city or county attorney is a major figure at the top of every local government.

What struck me about the column is how similar Schumpeter's description of the CLO is to how a city or county attorney should be, but too often is not. One CLO is quoted as saying that "before taking the job, a lawyer should interview his chief executive. If you can’t say no to that person, 'you don’t want to work for that company.'" How many city attorneys have done this?

A CLO must be independent. But unlike outside lawyers, his financial future depends on just one client: his employer. He must protect the company’s reputation ... And he must do more than merely tell managers what they can get away with. As Susan Hackett, a former director of the Association of Corporate Counsel, says: “Most lawyers will look at legal rules and say: ‘Here are the ways you can do it.’ A good [general counsel] says: ‘Of course it’s legal, but it’s stupid.’”

"Of course it's legal, but it's stupid" is a corporate version of what government ethics professionals say, "It might be legal, but it will appear improper and, therefore, you shouldn't do it." A government attorney should say this, but this is not usually how they're trained and this is not usually what officials want to hear.

Government attorneys should recognize that they have an even stronger obligation than a CLO to be independent and to think about the reputation of the government rather than of its high-level officials. Saying "No" has to be an option. If it is not, or if it is ignored, the government attorney is not the right person for the job, or the government seriously needs a good ethics program with an ethics officer to say "No" and have enforcement powers when she is ignored.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959