The Many Reasons Why a City or County Attorney Should Not Provide Ethics Advice

A month ago, I wrote about some problems Honolulu's ethics program was having with the corporation counsel. The problems have continued. The big issue this last week has been the corporation counsel's provision of ethics advice. So far, the argument has primarily taken place in the form of memos.

The corporation counsel responded in an October 25 memo to questions directed to it by the city's EC in April and September. Then on December 2, the corporation counsel sent another memo, based on this earlier memo, to the mayor, managing director, and department and agency heads. The bottom line of both memos (attached; see below) is that the corp. counsel has not only the power, but the duty to provide ethics advice to all of the city's officers and employees.

In two memos dated December 6 (attached; see below), the EC's executive director and legal counsel (one person) explained why this was problematic and asked that city officers and employees get their ethics advice only from the EC.

The corporation counsel is wrong. She is wrong in so many ways, I will simply list the reasons the EC's executive director includes in his memo, and then add more reasons of my own. (If you want more than a list, read the first of the executive director's two memos and then come back here for more.)

Corporation counsel ethics advice:
1. Causes confusion and inconsistent advice and, where corp. counsel and the EC differ, could set up officials for an ethics violation.
2. When allowed in the past, led to forum shopping and was abandoned.
3. Is seen as favoring official-clients and, therefore, not trusted by the public.
4. Is based on insufficient experience and expertise.
5. Is not considered a best practice by large American cities.
6. Duplicates work and, therefore, wastes scarce government resources.

Inappropriate Advocacy
The most serious problem I have with the corp. counsel's memos is that they take the form of advocacy rather than the consideration of arguments for and against corp. counsel advice. This is inappropriate for any intra-governmental issue, but is especially inappropriate when it is the corp. counsel's own power that is at issue. The most responsible thing would have been to have an external expert write a memo on the issue. The second most responsible thing would have been to lay out all arguments for and against, as well as possible compromises, and show why those favoring corp. counsel ethics advice were more important and that no workable compromises were available. The corp. counsel did neither. It is, therefore, impossible for non-experts to determine whether her conclusions are best for the city.

EC Ethics Advice Overrides Corp. Counsel Duties
The corp. counsel insists not only that her office has the power to provide ethics advice, which is not at issue, but also the duty to provide ethics advice. Every city and county in the United States that gives its ethics program a monopoly on ethics advice has the same sort of provision setting forth the city or county attorney's powers and duties. And every one of them considers these powers and duties to be overriden by the ethics program's monopoly on ethics advice. Why? Because every one of them recognizes how harmful it is for ethics advice to provided by two offices, and especially by a city or county attorney's office.

Corp. Counsel Ethics Advice Places Officials in Jeopardy
One of the most important things that the corp. counsel omitted from her memo is that ethics advice from her office does not protect officials from being found to have committed an ethics violation. I don't know if this has been made clear in Hawaii, but it is clearly the law in some states, such as California, and only a week ago, in a case that was remanded from the U.S. Supreme Court, the Nevada Supreme Court stated that ethics advice from a corporation counsel was insufficient to protect a council member from being found to have violated an ethics provision (for more on this, see my blog post).

Advice that does not protect officials is not in their best interest as individuals or as public officials, and is certainly not good for the community.

The Corp. Counsel's Roles Conflict
Another problem involves the corporation counsel's role. A corp. counsel's sole job is to advise agencies, departments, and bodies, not individuals. When a conflicted individual comes for advice, he is not fully a client, because he has interests in the matter that are completely distinct from the interests of his agency, department, or body. However, with respect to ethics advice, he is fully the EC's client. In fact, he is in the exact sort of situation for which the EC was created to provide advice.

The corp. counsel is also conflicted with respect to officials seeking ethics advice, due to the various relationships she has with them. She has political relationships:  some are members of her party or faction, others are opponents. She has personal relationships established through working together in the government and on campaigns, and socializing. She has the professional relationship of acting as their attorney. And some of the officials — in fact, the officials who are most likely to require ethics advice — are her appointing authorities. Not only does she have these relationships, but the public also sees her as conflicted because of them.

The EC lacks these relationship with these individuals and, therefore, has no conflicts. Its advice is, therefore, seen as neutral by the public and, thererfore, trusted.

The corp. counsel is also conflicted because she, the members of her office, and her appointing authorities are subject to the EC's jurisdiction. Every piece of ethics advice they give is relevant to their conduct. Any precedent they create could allow them to engage in conduct that might otherwise be illegal.

The principal rule for a conflicts of interest program is that no one subject to its jurisdiction should be involved. There should not be any conflicts at the heart of a conflicts of interest program.

The issue of a government attorney's conflicts in legal ethics terms is too extensive for this post. See the section of my book on this topic.

The Corp. Counsel's Motivated Blindness
Not only is the corp. counsel conflicted in a legal and government ethics sense, but she is also beset by what is known as “motivated blindness.” Essentially, motivated blindness refers to the fact that we have a bias toward the individuals we work for. We want to make them happy, and it is in our personal interest to make them happy because they affect our livelihood. When a private lawyer represents a private client with respect to the client’s private interests, this is usually a problem only when the client seeks to act criminally, due to professional obligations attorneys have under their Rules of Professional Conduct. But when a public attorney represents a public client with respect to an official’s private interests, any bias toward the individual standing in for the public client creates a problem, in terms of both reality and appearance.

Skill Set
Legal advice and ethics advice require different skill sets. A legal adviser sticks to the letter of the law, and is always on the lookout for loopholes that her client can take advantage of. Recognizing that ethics laws are the minimum requirements of individuals with a fiduciary duty to the community, an ethics adviser is not on the lookout for loopholes in an ethics provision and does not interpret ethics code language so that it is most beneficial to her advisee's interests.

The Confidentiality of Corp. Counsel Ethics Advice
The corp. counsel argues that the ethics advice her office gives is confidential due to attorney-client confidentiality rules. She cites only one judicial decision, Malama Aina 0 Ko'olau v. Pacarro, 4 Haw. App. 304, 313-114, 66 P.2d 177 (1983), saying that it applies lawyer-client confidentiality to governmental lawyers. This is not true. The decision only applies this confidentiality to a lawyer meeting with the entire council to discuss potential litigation in a closed session. Ethics advice has nothing to do with litigation, involves an individual rather than a body or agency, and there is no issue about whether the meeting between official and attorney is open or closed.

It is curious that the corp. counsel insists that ethics advice is confidential, but says nothing about the ability of the official seeking advice to make the advice public. Nor does she speak of any possible obligation such an official has to make the advice public, so that other officials can learn from it, so that ethics advice can be consistently applied, and so that the public does not think officials are secretly being told how to act in their personal interests.

There is no doubt that it is in the interest of the city government for ethics advice to be public. By keeping it confidential, an official is putting his personal interest ahead of the public interest. And the point of government ethics advice is exactly the opposite:  to make sure officials put the public interest ahead of their personal interests. Looked at like this, how can one argue for the confidentiality of ethics advice?

For more on the problems that accompany ethics advice from government attorneys, see the section on this issue in my free digital book Local Government Ethics Programs.

The Corp. Counsel's Duty to Send Officials to the EC
The corp. counsel's duty is to do what is best for the city. In my book, I conclude the section on government attorney ethics advice as follows:

[T]he best thing to do is tell the official to seek advice from the ethics officer, the ethics commission, or other individual or entity formally given that job. If there is no such individual or entity, the official should seek advice from private counsel.

This is the best practice. And yet the corp. counsel doesn't mention it in her memo. She fails to recognize that, just because she has the power to provide ethics advice, this does not mean that she cannot recognize that an ethics program is better situated to provide this advice and, for this reason, tell any official or employee who seeks ethics advice from her office to contact the ethics commission instead.

In fact, this is her out. After reading this post and considering the ways in which the positions she took in her memo may not be the best thing for Honolulu, she can stick to everything she said and yet choose to provide only one kind of ethics advice:  it's best to get ethics advice from the EC. That is the compromise that makes the ethics program work best both for the city and for its officials and employees. This compromise does not in any way lessen the powers or duties of the corp. counsel's office. It simply does the right thing.

Conclusion
There is no more difficult, conflicted role than that of the local government attorney. And in a large percentage of local government ethics matters I have followed over the last seven years, there is a government attorney at its heart, sometimes as an enabler of ethical misconduct, almost always as someone conflicted and yet participating in the matter. Recognizing this, I don't understand why any corporation counsel would want anything to do with a conflicts of interest program.

I wish I could say that Honolulu's corp. counsel is a complete outlier. But she is not. If she were, I wouldn't have bothered writing this blog post. There are city and county attorneys across the country who insist on providing ethics advice and doing what they can to prevent an independent ethics officer from being hired. There are even a few who insist on doing this when their city or county has a good ethics program, as Honolulu does. For those who live in these cities and counties, and for their responsible leaders, this post should provide the arguments that need to be made in order to get the city or county attorney out of the government ethics program, where she or he certainly does not belong.

Robert Wechsler
Director of Research-Retired, City Ethics

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