Legal Ethics vs. Government Ethics
Robert Wechsler
Many government lawyers feel that the rules of professional conduct are
sufficient to keep them ethical. Because of this, they sometimes seek
to be excluded from an ethics commission's jurisdiction (see a recent
blog post) and more often argue that the attorney discipline system
takes precedence. An April
30 decision by a Michigan attorney discipline hearing panel shows
how weak the attorney discipline system is in dealing with government
ethics violations. The subject of the decision was a former Detroit corporation counsel involved indirectly in the infamous secret settlement tied to the mayor's sexual text messages.
The complaints against the corporation counsel and his division chief (the decision concerning her has not yet come down) are discussed in detail in a blog post I wrote a year ago. I highly recommend you read that post before continuing with this one.
For those in a rush, here's the core of what occurred. Rather than appealing a multi-million dollar decision against the city, the mayor entered into a secret settlement agreement, in order to hide sexual text messages between him and his chief of staff. A public settlement agreement, with no mention of the text messages, was sent to the council for approval (as required by law), along with a memorandum approved by the corporation counsel, which made no mention of the text messages.
In addition, the Detroit Free Press made two FOI requests for all documents relating to the settlement, and the corporation counsel oversaw filling of this request without including the secret settlement agreement.
The FOI Request
The attorney discipline system did find unethical conduct with respect to the FOI request, however only in a limited context. The hearing panel found (pp. 23ff of the decision) that the corporation counsel violated Michigan Rules of Professional Conduct (MRPC) 5.1(b), which requires the making of reasonable efforts to ensure that subordinates follow the MRPC. Here's what the panel determined:
In both cases, however, the hearing panel focused not on ordinary official conduct, but on conduct in a judicial setting, where lawyers truly do have different obligations than government officials.
The Corporation Counsel's Client
The attorney discipline system did not deal so well with the corporation counsel's failure to tell the council about the secret settlement agreement and the text messages that made it secret. The grievance administrator contended that the corporation counsel violated MRPC 1.2(a), which requires an attorney to seek the lawful objectives of a client through reasonably available means permitted by law. This rule is not a very good way of preventing a government attorney from putting an official's personal interest ahead of the public interest. But it did lead to an interesting twist on the question of who a government attorney's client is.
Government attorneys tend to prefer to consider the individual or body they are representing to be their client, in this case the city council. But the corporation counsel was forced to argue that his client was not the council, but the city. Here's what the hearing panel wrote:
And in its next step, the hearing panel was dead wrong. It found that since the city's exposure was larger than the settlement amount, the corporation counsel was, by supporting the settlement, seeking the client's lawful objectives. But exposure is not everything. There was the possibility of appeal, which the grievance administrator said the corporation counsel originally sought, and there was also the possibility of exposing the effective blackmail surrounding the mayor's text messages, and all that might flow from that exposure.
Letting the council know of these alternatives takes us to the next rule the corporation counsel allegedly violated.
Explaining a Matter to a Client
The next rule allegedly violated also has nothing to do with conflicts of interest. It is Rule 1.4(b):
First of all, the hearing panel argued, "there is absolutely no proof that any member of the City Council received, read or relied upon the settlement memorandum," and the council did not discuss the settlement or ask questions of the law department. And second, there is "no evidence that the Detroit City Council would have voted any differently on settlement if it had been advised about settlement terms regarding keeping the text messages secret." In fact, there was no proof that the council "had any interest in the reasons that settlement was being recommended."
In other words, according to the lawyer discipline hearing panel, a government attorney does not have to provide full information to a city council if the council may not read what the attorney did provide, if the matter would not be publicly discussed or discussed with the attorney, if the extra information would not necessarily lead to a different decision, and if it the council might not be interested in arguments concerning the settlement.
This is ridiculous. Of course, the information not provided must be material, but there is no question here whether information about the secret settlement is material.
When a government attorney provides advice to a council, he has to presume that that the council members are interested in what he has to say and that it will act responsibly. All the evidence in the world that the council acts irresponsibly does not allow a government attorney to act irresponsibly, especially when he is doing so to protect another government official's personal reputation.
By considering what the particular council members did or would have done with the corporation counsel's advice, the hearing panel effectively determined that the council members were the corporation counsel's client, rather than the city council itself. A government attorney's client, in this case, is a group of offices rather than the supposedly irresponsible people currently filling those offices and doing it poorly. This is an extremely important distinction which the panel completely ignored.
It should be noted that in a decision by another hearing panel (April 29, 2010), concerning outside counsel involved in this matter, the panel said:
Conflict of Interest
Finally, the hearing panel gets to the only MRPC rule it considered that involves a conflict of interest. The rule is 1.7(a), which reads:
It's worth noting that the word "conflict" does not appear in the decision, nor do the terms "personal interest" or "public interest."
Legal Ethics vs. Government Ethics
The fact is that, in government ethics, there is no need to show that one interest is being favored more than another. You simply can't represent two conflicting interests, nor can a superior allow a subordinate to participate with a conflict. This hearing panel decision shows that a lawyer's conflict and a government official's conflict are two very different things, as are their obligations to the public and its representatives.
A government official's obligations are far stronger than a lawyer's. Therefore, a government lawyer's obligations must be first those of a government official, and only secondarily those of a lawyer. Otherwise, any lawyer who is a government official will have a very different, and weaker, set of obligations than all other government officials.
Even more serious, this hearing panel decision takes a legalistic approach to ethics, making every effort to interpret the rules to the benefit of the lawyer and considering the rules of conduct the maximum expected of a lawyer. This differentiates legal ethics from government ethics, where the rules are considered the minimum expected of government officials. This is the same approach that was taken in my legal ethics course back in law school. The lectures concerned more what lawyers can do to get around the rules of conduct than what lawyers should not be doing. Applying legal cleverness to ethics rules is inappropriate and damaging to their validity as well as to their goals.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The complaints against the corporation counsel and his division chief (the decision concerning her has not yet come down) are discussed in detail in a blog post I wrote a year ago. I highly recommend you read that post before continuing with this one.
For those in a rush, here's the core of what occurred. Rather than appealing a multi-million dollar decision against the city, the mayor entered into a secret settlement agreement, in order to hide sexual text messages between him and his chief of staff. A public settlement agreement, with no mention of the text messages, was sent to the council for approval (as required by law), along with a memorandum approved by the corporation counsel, which made no mention of the text messages.
In addition, the Detroit Free Press made two FOI requests for all documents relating to the settlement, and the corporation counsel oversaw filling of this request without including the secret settlement agreement.
The FOI Request
The attorney discipline system did find unethical conduct with respect to the FOI request, however only in a limited context. The hearing panel found (pp. 23ff of the decision) that the corporation counsel violated Michigan Rules of Professional Conduct (MRPC) 5.1(b), which requires the making of reasonable efforts to ensure that subordinates follow the MRPC. Here's what the panel determined:
-
Once he learned of the true nature of the text messages, it was
incumbent upon [the corporation counsel] to inquire vigorously and
thoroughly about the details of the settlement and the possible
existence of additional documents before he sent [his subordinates] to
represent the City at a hearing in the FOIA lawsuit.
In both cases, however, the hearing panel focused not on ordinary official conduct, but on conduct in a judicial setting, where lawyers truly do have different obligations than government officials.
The Corporation Counsel's Client
The attorney discipline system did not deal so well with the corporation counsel's failure to tell the council about the secret settlement agreement and the text messages that made it secret. The grievance administrator contended that the corporation counsel violated MRPC 1.2(a), which requires an attorney to seek the lawful objectives of a client through reasonably available means permitted by law. This rule is not a very good way of preventing a government attorney from putting an official's personal interest ahead of the public interest. But it did lead to an interesting twist on the question of who a government attorney's client is.
Government attorneys tend to prefer to consider the individual or body they are representing to be their client, in this case the city council. But the corporation counsel was forced to argue that his client was not the council, but the city. Here's what the hearing panel wrote:
-
Since it was admitted by [the corporation counsel] that City Council
was the only office, agency or authority within the City of Detroit
that could approve the payment of settlement funds, it is nonsensical
for him to argue that the Detroit City Council was not owed the duties
of a "client" with respect to approval of the settlements...
And in its next step, the hearing panel was dead wrong. It found that since the city's exposure was larger than the settlement amount, the corporation counsel was, by supporting the settlement, seeking the client's lawful objectives. But exposure is not everything. There was the possibility of appeal, which the grievance administrator said the corporation counsel originally sought, and there was also the possibility of exposing the effective blackmail surrounding the mayor's text messages, and all that might flow from that exposure.
Letting the council know of these alternatives takes us to the next rule the corporation counsel allegedly violated.
Explaining a Matter to a Client
The next rule allegedly violated also has nothing to do with conflicts of interest. It is Rule 1.4(b):
-
A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation.
First of all, the hearing panel argued, "there is absolutely no proof that any member of the City Council received, read or relied upon the settlement memorandum," and the council did not discuss the settlement or ask questions of the law department. And second, there is "no evidence that the Detroit City Council would have voted any differently on settlement if it had been advised about settlement terms regarding keeping the text messages secret." In fact, there was no proof that the council "had any interest in the reasons that settlement was being recommended."
In other words, according to the lawyer discipline hearing panel, a government attorney does not have to provide full information to a city council if the council may not read what the attorney did provide, if the matter would not be publicly discussed or discussed with the attorney, if the extra information would not necessarily lead to a different decision, and if it the council might not be interested in arguments concerning the settlement.
This is ridiculous. Of course, the information not provided must be material, but there is no question here whether information about the secret settlement is material.
When a government attorney provides advice to a council, he has to presume that that the council members are interested in what he has to say and that it will act responsibly. All the evidence in the world that the council acts irresponsibly does not allow a government attorney to act irresponsibly, especially when he is doing so to protect another government official's personal reputation.
By considering what the particular council members did or would have done with the corporation counsel's advice, the hearing panel effectively determined that the council members were the corporation counsel's client, rather than the city council itself. A government attorney's client, in this case, is a group of offices rather than the supposedly irresponsible people currently filling those offices and doing it poorly. This is an extremely important distinction which the panel completely ignored.
It should be noted that in a decision by another hearing panel (April 29, 2010), concerning outside counsel involved in this matter, the panel said:
-
The Detroit City Council was entitled to know of the existence and
terms of the [secret settlement] before being asked to approve a
settlement payment.
Conflict of Interest
Finally, the hearing panel gets to the only MRPC rule it considered that involves a conflict of interest. The rule is 1.7(a), which reads:
-
A lawyer shall not represent a client if the representation of that
client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
-
MRPC 1.7(a) proscribes a lawyer from engaging in certain conduct, but
does not subject a lawyer to discipline if he/she merely "knew" that
another lawyer's actions violated MRPC 1.7(a). Further, even if MRPC
1.7(a) provides for derivative responsibility, the Panel unanimously
finds that Petitioner failed to prove that [the corporation counsel]
knew that anything done by [his division chief] with respect to the
settlement ... was "directly adverse" to the interests of the City of
Detroit. While some aspects of the settlement may have favored [the
mayor] more than the City of Detroit, that does not make those aspects
"directly adverse" to the City.
It's worth noting that the word "conflict" does not appear in the decision, nor do the terms "personal interest" or "public interest."
Legal Ethics vs. Government Ethics
The fact is that, in government ethics, there is no need to show that one interest is being favored more than another. You simply can't represent two conflicting interests, nor can a superior allow a subordinate to participate with a conflict. This hearing panel decision shows that a lawyer's conflict and a government official's conflict are two very different things, as are their obligations to the public and its representatives.
A government official's obligations are far stronger than a lawyer's. Therefore, a government lawyer's obligations must be first those of a government official, and only secondarily those of a lawyer. Otherwise, any lawyer who is a government official will have a very different, and weaker, set of obligations than all other government officials.
Even more serious, this hearing panel decision takes a legalistic approach to ethics, making every effort to interpret the rules to the benefit of the lawyer and considering the rules of conduct the maximum expected of a lawyer. This differentiates legal ethics from government ethics, where the rules are considered the minimum expected of government officials. This is the same approach that was taken in my legal ethics course back in law school. The lectures concerned more what lawyers can do to get around the rules of conduct than what lawyers should not be doing. Applying legal cleverness to ethics rules is inappropriate and damaging to their validity as well as to their goals.
Robert Wechsler
Director of Research-Retired, City Ethics
---