The Obligations of a Local Government Attorney

According to an article in today's New York Times, the reason that charges were dropped against Sen. Ted Stevens is that federal prosecutors repeatedly failed to disclose information that may have helped the defense. Most of the prosecutors' misconduct was discovered and remedied, as far as possible, by the judge. But the new attorney general put three new prosecutors on the case, who discovered a serious nondisclosure of information that had not come to the judge's attention.

I am writing about this because this case involves two extremely important and controversial matters involving government lawyers. One is transparency.

Government lawyers work hard to keep information confidential. At a panel at a Council on Governmental Ethics Laws conference in 2007, on the government attorney-client privilege (information given to an attorney by a client is considered confidential), I took the position that information in the hands of government lawyers should be treated as any other information within a government agency, and that transparency should be the rule, unless a statutory exception is involved. That position was attacked not by evil lawyers trying to hide state secrets, but by government ethics professionals.

A couple of them even gave me the big lie in this area: that information and documents which might be litigated may be kept secret. The problem with this position is that, in government as in the rest of life, any information or document might end up being litigated. Taking this position means that government officials can keep secret any information that is shared with an attorney, even when the attorney is not acting as an attorney. Having a government attorney in the room, then, is the perfect way to undermine government transparency.

The second matter involves a government attorney's obligations to the public. They are not like those of ordinary lawyers, because the government is not a client like ordinary clients. The government represents the public. Therefore, the government attorney represents the public, too.

The Stevens case shows how important it is for a government attorney to fulfill his obligations to the public, which involve fairness and seeking justice, not just winning. By withholding information, they not only lost the judge's respect and jeopardized the prosecution, but in the end all their misconduct led to the dropping of charges, even after conviction.

A local government attorney has similar obligations. Representing the people who currently hold the important positions in local government is not sufficient. Local government attorneys also have obligations to the public, which involve fairness and justice, not just winning. These obligations are not as clearly delineated as those of a prosecutor, nor could they be. But they are nonetheless important.

Local government attorneys should not withhold information from the public unless it clearly fits one of the statutory exceptions. Especially when they are involved in public meetings or hearings, they should be very careful to present to the public both sides of a matter, because they are the public's lawyer. Defending a government official they know is arguably wrong or a law they know has questionable aspects, or withholding information about an alternative approach, is not fulfilling their obligations to the public to be fair and transparent.

The difference is that, in local government rarely does anything happen when a lawyer too strongly takes the side of local government officials or fails to provide complete information to the public. There's no judge or attorney general who might throw a matter out. In this way, the obligations of a local government attorney are more serious than those of a federal prosecutor, even if someone's freedom is not on the line. What is on the line is the fair working of our democracy.

Who cares if Sen. Stevens goes to prison? I don't think he should have anyway, even though I think the crimes he was convicted of were the least of his misconduct. But if a local government hides information from the public or presents questionable arguments to the public, this undermines people's trust in government and makes government not the representative of the public, but its adversary.

Robert Wechsler
Director of Research-Retired, City Ethics

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