Spring Reading: The Government Ethics Adviser As Civics Teacher

"'Public Service Must Begin at Home': The Lawyer as Civics Teacher in Everyday Practice" by Bruce A. Green and Russell G. Pearce (William & Mary Law Review, Vol. 50, p. 1207, 2009) provides an excellent basis for something that I consider extremely important to government ethics, but with which many government ethics practitioners disagree:  going beyond the law in the provision of government ethics advice (sometimes known as "wise counsel").

What the authors mean by "the lawyer as civics teacher" is that a lawyer's civic obligation is not only to provide pro bono services and the like, externally to one's ordinary practice, but also "to convey to clients the lawyer's understanding of proper civic conduct." The authors note that "when lawyers counsel clients about their legal rights and obligations, and about how to act within the framework of the law, lawyers invariably teach clients not only about the law and legal institutions, but also, for better or worse, about rights and obligations in a civil society that may not be established by enforceable law — including ideas about fair dealing, respect for others, and, generally, concern for the public good." This includes clients' "obligations to obey the law, aspirations to fulfill the spirit of the law, and responsibility to the good of their neighbors and the general public."

This may sound like goody-goody gobbledygook to many lawyers (and their clients), but this is because, as the authors point out, the conception of lawyers' obligations has changed in recent years. The idea of zealously representing clients has spread out of criminal law into civil practice and even into government practice. The idea that a lawyer's civic obligations are external to their ordinary practice is also a recent idea.

"Lawyers Are Unavoidably Teaching Ethics" Anyway
If a government attorney or ethics officer providing ethics advice interprets ethics provision language without going further, without treating the laws as the minimum standards they are, then the extra-legal message they are giving government officials is that ethics laws are maximum standards, and that they may take advantage of any ambiguous language or loophole they can find (or that the ethics adviser can find for them). That is, silence about ethics is actually ethics advice, only the wrong ethics advice. As the authors say:

[A]dvising the client to stay comfortably within the law (and comply with the imperfectly expressed spirit or purpose of the law) teaches one conception of civic obligation. Encouraging the client to exploit legal loopholes or to test legal limits teaches a different conception.

Or, summarizing what Justice Brandeis wrote in his dissenting opinion in Olmstead v. U.S., 277 U.S. 438, 485 (1928), "As long as lawyers are unavoidably teaching ethics, they ought to try to do a good job of it, if only out of a sense of public obligation."

Ethics advisers cannot help being civics teachers. Therefore, an ethics adviser has an obligation to decide what sort of civics teacher to be:  one who implicitly tells officials that fulfilling minimum ethics obligations is sufficient or one who expressly tells clients that, as fiduciaries for the community, they have obligations that go beyond the minimum requirements of ethics laws, including the obligation to prevent the damage that appearances of impropriety cause.

According to the authors, when lawyers provide ethics, or even legal, advice, they are not just saying, "This is what the law says." They are helping officials make "fully informed decisions," to consider "all relevant considerations, not just legal considerations."

When government lawyers refrain from advising beyond the minimum requirements of ethics laws, knowing that this results in government officials wrongly seeing these laws as maximum requirements, this too involves an ethical judgment. They cannot get away from doing this. In fact, don't many lawyers in the role of government ethics advisers intentionally treat ethics laws as maximum requirements so that the officials they believe they work for can do what they want to do? This is an ethical judgment, and yet lawyers generally do not say that such an ethical judgment is inappropriate. What they say, effectively, is that it is acceptable for ethics advisers to make ethical judgments when they take the form of an omission rather than an act, or when they act in response to an official's demands, even when they know there is a serious chance that the official's conduct will be harmful to the official and to their community he represents. This is an understandable argument when made by appointees of high-level officials, but it is inappropriate because government attorneys have the same fiduciary obligations that officials have.

The Spirit of the Law
We often talk of the "spirit of the law" or the "spirit behind the law," but we rarely define what we mean. In a footnote, Green and Pearce provide an excellent definition that is especially applicable to the government ethics context:

[O]ur understanding of the concept is as a source of potential self-restraint beyond that which the law would be interpreted to impose.

According to this definition, if in providing ethics advice, one simply interprets an ethics provision, the official seeking advice will be told that he need restrain his conduct only that much. Since ethics provisions are intended to be minimum requirements, to capture the spirit of the law, which is usually clearly stated at the beginning of an ethics code, an ethics adviser needs to go further, discussing the sorts of self-restraint that would ensure that there would not be an appearance of impropriety.

For example, ethics codes rarely make it a violation to give a contract to one's close friend or romantic partner, primarily due to definitional problems. If an official seeks advice about participating in a contract matter involving her romantic partner, should the ethics adviser say simply, "Romantic partners are not covered by the ethics code"? Or should the ethics adviser say, "Although romantic partners are not covered by the ethics code and although no one may find out that your romantic partner was involved, if it came out (and one has to assume it will), you and the city could be caught up in a scandal that would damage not only your reputation, but the city government's. Therefore, my advice is that you withdraw from participation in the matter, both directly and through others, including your aides. Because this is not the law, I cannot bind you to this advice, but it is the best advice I can provide."

Lack of Expertise
Many lawyers, and others, argue that lawyers shouldn't share their ethical judgments because they don't have any special expertise in what is ethical and what is not. Their expertise is limited to laws.

This simply isn't true. Lawyers do have special expertise in this area, and this is especially true of government lawyers. They focus on how process works in civic institutions. Fairness is as central to what they do every day as it is central to government ethics. Who else thinks about due process, the fair application of rules, transparency vs. confidentiality, etc.? People depend on lawyers in government to write, interpret, and apply laws, and this cannot be done without considering process, fairness, and ethics.

Officers of the Court
Green and Pearce depart from the traditional argument that lawyers are "officers of the court" and, as such, exercise state power. They say that this is no longer accepted. In any event, it isn't necessary to make the argument that lawyers should advise beyond the letter of the law, especially in a government ethics context, where there are special fiduciary duties and there is a likelihood of damage to the community if lawyers fail to take extra-legal considerations into account in providing ethics advice.

A better way to put the "officer of the court" argument is that a lawyer's highest loyalty is not to the client, but to procedures and institutions. This is not a radical view, but rather the view of the 1958 Fuller Report, issued jointly by the ABA and the AALS on the nature of lawyers' professional responsibility in the context of the adversary system.

In fact, this same report says that lawyers have "an affirmative duty to help shape the growth and development of public attitudes towards fair procedures and due process." Given this duty with respect to private clients, consider how much more important it is for lawyers to shape the growth and development of public representatives towards fairness and due process!

Client Autonomy
Another argument against lawyers straying beyond the letter of the law is respect for client autonomy.
This argument contends that lawyers should not force their values onto others. But as Deborah Rhode has pointed out, this assumes that both the lawyer and the client accurately recognize the client's values, something which is certainly not borne out by reality.

And when the client is someone currently filling a public position, that is, someone who is not the client, but only acting for the client, that individual's personal values, even if expressly and accurately stated, have nothing to do with the client's autonomy. If, for example, an official comes in saying that he wants to make sure his sister gets a contract, and wants the ethics adviser to tell him how this can be done within the law, using any loopholes that may exist, the ethics adviser has no obligation to do this, even if she could find the requested loopholes (for example, one that allows an official to indirectly participate in a matter).

Practically Speaking
The best argument against lawyers straying beyond the letter of the law is that many government officials don't want them to and, therefore, will be less likely to seek ethics advice from advisers who give them an opinion about appearance of impropriety and the like.

This argument has a great deal of validity, although not, that I know of, any studies to back it up. But does this put an end to the argument? One approach is for an ethics adviser to treat each official differently. That is, an ethics adviser might guess which officials she can take beyond the law and which officials she can take no further than the law, which officials she can tell that looking for loopholes is not appropriate and which officials she cannot tell this to. An alternative is to explain the issue to each official and ask him how he feels, noting this down for further reference (and, possibly, asking each time whether there has been any change in his position).

Another approach is for an ethics adviser to raise this issue with the mayor, manager, and/or local legislative leader, and tell them that the problem could be solved if they would make a statement to officials and employees that it is the role of the ethics adviser to go beyond the law, because ethics laws are minimum requirements, and that if officials and employees fail to seek ethics advice and, therefore, violate an ethics provision or, even if they do not, cause a scandal, it may mean that they will be fired or removed from office, or that leaders will do what they can to prevent them from being re-appointed or from running for office. Such leaders should also send the message that seeking such ethics advice is necessary by themselves doing it when a matter arises, and ensuring that the advice is made public.

But what if government leaders refuse to make such a statement, if they feel an ethics adviser should not go beyond the law? An ethics adviser could choose to wait until there is a scandal that involves conduct that is arguably legal, and raise the issue again. An ethics adviser could join together with local ethics advisers in the state to jointly lobby for a different approach to ethics advice. Or an ethics adviser could choose to resign in protest.

In short, there are alternatives to stopping at the edge of the law due to an assumption that officials will stop seeking ethics advice. The alternatives may take time to work, but it is likely that, due to a scandal, there will come a time when it is possible to get high-level officials to support a broader approach to ethics advice, especially if the path has already been shown to them. It's worth the effort and the wait.

Self-Interest
Toward the end of their article, Green and Pearce say something that seems to have had government ethics advice in mind, but didn't:

Lawyers may choose to teach that appropriate conduct requires taking into account not only one's self-interest but also one's obligations to one's fellows and one's community.

Considering that government ethics is all about putting the government's and the community's interest ahead of one's self-interest, this may be the best argument of all in favor of ethics advisers going beyond the letter of the law.

The authors point out that the best way to present these extra-legal matters is not in terms of morality, but rather in terms of "civic responsibility." In the case of government ethics, these means speaking in terms of the government official's fiduciary obligations to the community and the damage one official's ethics violation can do to the public trust and to the reputation of the government and, when frequent scandals arise, even to the reputation of the community itself and its prospects for attracting business and dynamic individuals.

Robert Wechsler
Director of Research-Retired, City Ethics

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