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The Responsibilities of a Lawyer Representing a Public Official
Wednesday, May 14th, 2008
Robert Wechsler
A quote from a lawyer in an article
in today's New York Times
brought me back to what I recently promised to discuss at the end of a blog entry about
Elizabeth Wolgast's book, Ethics of an Artificial Person: Lost
Responsibility in Professions and Organizations.
Daniel K. Webb, the head of Detroit Mayor Kwame Kilpatrick's legal team, said of the City Council's request that the mayor resign: "I have told the mayor, as his lawyer, that he should not consider that under any circumstances."
The Code of Professional Responsibility states that the duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law. But lawyers often go beyond zealous representation on legal issues. They often provide non-legal advice, just as Mr. Webb did to the mayor. What could the law possibly have to say about a public official's decision to resign in the face of a scandal harmful to Detroit?
Click here to read the rest of this blog entry.
In addition, isn't zealous representation something that is required publicly, not privately? Yes, Mr. Webb certainly should not say publicly that he suggested that the mayor resign. But that doesn't mean it is his duty to tell the mayor not to resign, just because that is the mayor's position. Resignation is not a legal issue, it is a balancing of the mayor's personal interests against the public interest. It is an ethical issue.
As Ms. Wolgast explains, lawyers are in a unique position to facilitate or frustrate a client's action when it is ethically questionable. But most lawyers do not feel that they have any responsibility to question a client's decision in an ethical sense, even though they often question a client's decision in a business sense. In fact, many believe it is inappropriate to question a client's ethics, and it is certainly not a good way to keep a client.
Many lawyers, like Mr. Webb here, do not feel it at all inappropriate to publicly state that they have given a client ethical advice that supports his client's decision. If such ethical advice is appropriate, why is it inappropriate to give ethical advice that is contrary to what the client says he wants to do?
As David Luban is quoted as saying in Wolgast's book, “Law ... is an inseparable part of the context in which we learn about morality and help to shape our acceptance of moral standards. That means the profession cannot be morally neutral, it must be engaged somehow."
This is especially true when the lawyer represents a public official, because a public official has obligations that go far beyond those of an ordinary client. And a mayor's obligations go far beyond those of an ordinary public official. A lawyer representing a public official should take into consideration his client's additional obligations. Of course, he is required to argue for his client's innocence if his client insists he is innocent. But the effect of what has occurred in Detroit goes far beyond the mayor's guilt or innocence.
What has occurred there has been extremely harmful to the city's government and its reputation. To tell the mayor that under no circumstances should he consider resigning is to completely ignore his client's and his own obligations to the public. This is not a morally neutral position, it is an unethical position: a refusal to even consider balancing personal and public obligations.
City Councilwoman Sheila Cockrel said, “This is about Detroit, a city where the rule of law governs everyone, including elected officials. As tragic as it is, this enormously talented, gifted, charismatic politician — who will not accept responsibility — needs to go.” Both the mayor and the head of his legal team, as well as the rest of us, especially lawyers, need to consider what it means to accept responsibility and, more important, what it means to refuse to accept responsibility.
Robert Wechsler
Director of Research-Retired, City Ethics
Daniel K. Webb, the head of Detroit Mayor Kwame Kilpatrick's legal team, said of the City Council's request that the mayor resign: "I have told the mayor, as his lawyer, that he should not consider that under any circumstances."
The Code of Professional Responsibility states that the duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law. But lawyers often go beyond zealous representation on legal issues. They often provide non-legal advice, just as Mr. Webb did to the mayor. What could the law possibly have to say about a public official's decision to resign in the face of a scandal harmful to Detroit?
Click here to read the rest of this blog entry.
In addition, isn't zealous representation something that is required publicly, not privately? Yes, Mr. Webb certainly should not say publicly that he suggested that the mayor resign. But that doesn't mean it is his duty to tell the mayor not to resign, just because that is the mayor's position. Resignation is not a legal issue, it is a balancing of the mayor's personal interests against the public interest. It is an ethical issue.
As Ms. Wolgast explains, lawyers are in a unique position to facilitate or frustrate a client's action when it is ethically questionable. But most lawyers do not feel that they have any responsibility to question a client's decision in an ethical sense, even though they often question a client's decision in a business sense. In fact, many believe it is inappropriate to question a client's ethics, and it is certainly not a good way to keep a client.
Many lawyers, like Mr. Webb here, do not feel it at all inappropriate to publicly state that they have given a client ethical advice that supports his client's decision. If such ethical advice is appropriate, why is it inappropriate to give ethical advice that is contrary to what the client says he wants to do?
As David Luban is quoted as saying in Wolgast's book, “Law ... is an inseparable part of the context in which we learn about morality and help to shape our acceptance of moral standards. That means the profession cannot be morally neutral, it must be engaged somehow."
This is especially true when the lawyer represents a public official, because a public official has obligations that go far beyond those of an ordinary client. And a mayor's obligations go far beyond those of an ordinary public official. A lawyer representing a public official should take into consideration his client's additional obligations. Of course, he is required to argue for his client's innocence if his client insists he is innocent. But the effect of what has occurred in Detroit goes far beyond the mayor's guilt or innocence.
What has occurred there has been extremely harmful to the city's government and its reputation. To tell the mayor that under no circumstances should he consider resigning is to completely ignore his client's and his own obligations to the public. This is not a morally neutral position, it is an unethical position: a refusal to even consider balancing personal and public obligations.
City Councilwoman Sheila Cockrel said, “This is about Detroit, a city where the rule of law governs everyone, including elected officials. As tragic as it is, this enormously talented, gifted, charismatic politician — who will not accept responsibility — needs to go.” Both the mayor and the head of his legal team, as well as the rest of us, especially lawyers, need to consider what it means to accept responsibility and, more important, what it means to refuse to accept responsibility.
Robert Wechsler
Director of Research-Retired, City Ethics
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