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Detroit and the Loyalties of Local Government Attorneys
Thursday, May 21st, 2009
Robert Wechsler
Loyalty is a virtue that is out
of place in government, because loyalty is a personal virtue, a virtue
that involves one's own personal interest and that of the person one is
loyal to.
Loyalty is a particularly difficult issue for local government attorneys, because loyalty is essentially the principal virtue for attorneys. Attorneys' conflicts of interest involve interests that get in the way of complete loyalty to a client.
Yes, there are exceptions to an attorney's loyalty to a client, but they are just that: unusual exceptions to an extremely important virtue.
Because, in government, officials are supposed to put the public interest ahead of their personal interest, a government attorney's client is not the simple, selfish sort of client that lawyers' rules of professional conduct are written for. Rules of professional conduct don't focus on conflicts that involve a client who is not dealing responsibly with his or her own conflict of interest.
Background Information
This was the situation faced by two members of the Detroit Law Department, including the corporation counsel, when representing the mayor in the settlement of a suit against the city and the mayor. And the result of their choice to represent a mayor acting in his personal interest was complaints filed against them on Tuesday by the Michigan Attorney Grievance Commission.
According to an article in yesterday's Detroit Free Press and five grievance complaints linked to there, the City of Detroit Law Department attorneys allegedly hid from the city council a secret settlement entered into between the mayor (who had personal counsel, as well) and plaintiffs, a settlement reached in order to hide text messages that proved the mayor had had an affair with his chief of staff, a fact essential to the case and about which the mayor had allegedly lied in court.
The corporation counsel had previously advised the council to appeal the verdict in favor of the plaintiffs, but then backed a settlement (a public settlement with no mention of the text messages) for a sum $1.5 million larger than the amount stated in the jury's verdict.
Local Government Attorneys' Obligations According to the Detroit Charter
The Detroit Charter sets forth the corporation counsel's obligations:
Loyalty is a particularly difficult issue for local government attorneys, because loyalty is essentially the principal virtue for attorneys. Attorneys' conflicts of interest involve interests that get in the way of complete loyalty to a client.
Yes, there are exceptions to an attorney's loyalty to a client, but they are just that: unusual exceptions to an extremely important virtue.
Because, in government, officials are supposed to put the public interest ahead of their personal interest, a government attorney's client is not the simple, selfish sort of client that lawyers' rules of professional conduct are written for. Rules of professional conduct don't focus on conflicts that involve a client who is not dealing responsibly with his or her own conflict of interest.
Background Information
This was the situation faced by two members of the Detroit Law Department, including the corporation counsel, when representing the mayor in the settlement of a suit against the city and the mayor. And the result of their choice to represent a mayor acting in his personal interest was complaints filed against them on Tuesday by the Michigan Attorney Grievance Commission.
According to an article in yesterday's Detroit Free Press and five grievance complaints linked to there, the City of Detroit Law Department attorneys allegedly hid from the city council a secret settlement entered into between the mayor (who had personal counsel, as well) and plaintiffs, a settlement reached in order to hide text messages that proved the mayor had had an affair with his chief of staff, a fact essential to the case and about which the mayor had allegedly lied in court.
The corporation counsel had previously advised the council to appeal the verdict in favor of the plaintiffs, but then backed a settlement (a public settlement with no mention of the text messages) for a sum $1.5 million larger than the amount stated in the jury's verdict.
Local Government Attorneys' Obligations According to the Detroit Charter
The Detroit Charter sets forth the corporation counsel's obligations:
The corporation counsel shall defend
all actions or proceedings against the city... Upon request, the
corporation counsel may represent any officer or employee of the city
in any action or proceeding involving official duties.
The most important word here is "may" in the second sentence. Counsel "shall" defend proceedings against the city, but only "may" represent an officer or employee and only with respect to matters "involving official duties." This means that there are reasons why government counsel may choose not to represent an officer or employee. The two principal reasons would, I think, be (i) because the interest of two officers, employees, or government bodies conflict, and (ii) the personal interest of an officer or employee conflicts with the public interest, or the city's interest.
Conflict Between Obligations to Mayor and Council
When asked by a council member to write a memo about the settlement, the grievance commission said, the law department's division chief "became possessed of the duty to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The division chief's memo only discussed the public settlement, not the secret settlement, thereby preventing the council from making an informed decision.
The conflict here did not involve policy differences concerning the public interest, but personal vs. governmental interests. The division chief chose personal loyalty to the mayor over charter obligations to the council, and failed to disclose or otherwise deal responsibly with this conflict.
Elsewhere in the complaint, the grievance administrator said that the division chief "engaged in a conflict of interest by advancing the interests of Kilpatrick [the mayor] as an individual over the interests of the people of the City of Detroit, City Council, and the Office of Mayor." This captures the problem in a nutshell.
Representing the Official or the Office?
When a local government attorney represents the personal interests of any official or employee, there is a conflict with her obligation to represent the people, other "clients" in the government, and the office of the individual. I think that this last is most important. A government attorney does not represent a mayor or a manager or a council member, but the office of the mayor, the office of the chief executive officer, and the city's legislative body. The individuals in these offices, when acting in their personal interest, are not "clients" of a local government attorney, but instead individuals whose personal interests are in conflict with the interests associated with their office. No longer aligned with their office, they can no longer be said either to be a "client" of a government attorney or to be capable of determining the public interest.
Determining the Public Interest
Of course, it's not always easy to know when an official is acting in his or her personal interest, but there are many situations where it is clear, and this is certainly one of them. It is not reasonable to argue that hiding a mayor's sexual affair, after he'd lied about it in court and when it was the basis for an expensive settlement to be paid out of public funds, could be in the public interest.
It is often argued that a government attorney is not in a position to make a determination of what the public interest is. Why should an attorney be able to do this better than an elected official? However, when people say this, they are thinking of the public interest in the wrong sense. It is not so much what is best for the public, as what is appropriate in terms of process. And who can better determine the appropriate process than a lawyer?
Here, for example, the issue was whether to provide the council with requested, necessary information, so that the elected council could make the determination about whether the settlement was in the public interest. No other process could have been appropriate. No government attorney should stand in the way of having the public interest determined by the council based on all the facts.
Freedom of Information Determinations
The city law department was also involved in a freedom of information request, in other words, an ethics matter. Government transparency is one of the three areas of government ethics, along with conflicts of interest and campaign finance. Government transparency laws set clear rules intended to guide officials away from their personal interest in keeping government information secret.
The Detroit Free Press asked for all the settlement documents, but the city law department, acting under the guidance of the division chief, only provided the newspaper with the public documents, knowingly withholding documents solely to protect the personal interests of the mayor.
With FOI matters, there is no conflict between clients, because there is no client. There is a law, and that law must be followed. There are cases where it must be interpreted, but in such a case, there is no reason to believe that an official, whose personal interests the law is intended to deal with, can better interpret the law than an attorney with no personal interest in the matter.
Originally, the law department argued that the settlement was a draft. But once it was finalized, there was no excuse, no reasonable interpretation, only loyalty to someone who should not have been part of the decision, due to his clear conflict of interest.
Of course, by this time, the law department was also protecting itself.
Process Is the Answer
The more I think about the difficult position of the local government attorney, the more I feel that the concept of a "client" who deserves the lawyer's loyalty needs to be thrown out the government door. That's a very hard thing for a lawyer to do, but it seems easier than always being caught between officials and bodies and the public interest.
Process needs to be at the center of any solution to a local government attorney's possible conflicts, because process is what an attorney understands better than anything and anyone. And process is the best guarantee we have, often even better than voting, that a government will act in the public interest.
Other blog posts on the Detroit coverup
The Mayor's Unethical Behavior
Duties of Ethics Board Members
Responsibilities of a Lawyer Representing a Public Official
The Mayor's Resignation
Robert Wechsler
Director of Research-Retired, City Ethics
---
The most important word here is "may" in the second sentence. Counsel "shall" defend proceedings against the city, but only "may" represent an officer or employee and only with respect to matters "involving official duties." This means that there are reasons why government counsel may choose not to represent an officer or employee. The two principal reasons would, I think, be (i) because the interest of two officers, employees, or government bodies conflict, and (ii) the personal interest of an officer or employee conflicts with the public interest, or the city's interest.
Conflict Between Obligations to Mayor and Council
When asked by a council member to write a memo about the settlement, the grievance commission said, the law department's division chief "became possessed of the duty to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The division chief's memo only discussed the public settlement, not the secret settlement, thereby preventing the council from making an informed decision.
The conflict here did not involve policy differences concerning the public interest, but personal vs. governmental interests. The division chief chose personal loyalty to the mayor over charter obligations to the council, and failed to disclose or otherwise deal responsibly with this conflict.
Elsewhere in the complaint, the grievance administrator said that the division chief "engaged in a conflict of interest by advancing the interests of Kilpatrick [the mayor] as an individual over the interests of the people of the City of Detroit, City Council, and the Office of Mayor." This captures the problem in a nutshell.
Representing the Official or the Office?
When a local government attorney represents the personal interests of any official or employee, there is a conflict with her obligation to represent the people, other "clients" in the government, and the office of the individual. I think that this last is most important. A government attorney does not represent a mayor or a manager or a council member, but the office of the mayor, the office of the chief executive officer, and the city's legislative body. The individuals in these offices, when acting in their personal interest, are not "clients" of a local government attorney, but instead individuals whose personal interests are in conflict with the interests associated with their office. No longer aligned with their office, they can no longer be said either to be a "client" of a government attorney or to be capable of determining the public interest.
Determining the Public Interest
Of course, it's not always easy to know when an official is acting in his or her personal interest, but there are many situations where it is clear, and this is certainly one of them. It is not reasonable to argue that hiding a mayor's sexual affair, after he'd lied about it in court and when it was the basis for an expensive settlement to be paid out of public funds, could be in the public interest.
It is often argued that a government attorney is not in a position to make a determination of what the public interest is. Why should an attorney be able to do this better than an elected official? However, when people say this, they are thinking of the public interest in the wrong sense. It is not so much what is best for the public, as what is appropriate in terms of process. And who can better determine the appropriate process than a lawyer?
Here, for example, the issue was whether to provide the council with requested, necessary information, so that the elected council could make the determination about whether the settlement was in the public interest. No other process could have been appropriate. No government attorney should stand in the way of having the public interest determined by the council based on all the facts.
Freedom of Information Determinations
The city law department was also involved in a freedom of information request, in other words, an ethics matter. Government transparency is one of the three areas of government ethics, along with conflicts of interest and campaign finance. Government transparency laws set clear rules intended to guide officials away from their personal interest in keeping government information secret.
The Detroit Free Press asked for all the settlement documents, but the city law department, acting under the guidance of the division chief, only provided the newspaper with the public documents, knowingly withholding documents solely to protect the personal interests of the mayor.
With FOI matters, there is no conflict between clients, because there is no client. There is a law, and that law must be followed. There are cases where it must be interpreted, but in such a case, there is no reason to believe that an official, whose personal interests the law is intended to deal with, can better interpret the law than an attorney with no personal interest in the matter.
Originally, the law department argued that the settlement was a draft. But once it was finalized, there was no excuse, no reasonable interpretation, only loyalty to someone who should not have been part of the decision, due to his clear conflict of interest.
Of course, by this time, the law department was also protecting itself.
Process Is the Answer
The more I think about the difficult position of the local government attorney, the more I feel that the concept of a "client" who deserves the lawyer's loyalty needs to be thrown out the government door. That's a very hard thing for a lawyer to do, but it seems easier than always being caught between officials and bodies and the public interest.
Process needs to be at the center of any solution to a local government attorney's possible conflicts, because process is what an attorney understands better than anything and anyone. And process is the best guarantee we have, often even better than voting, that a government will act in the public interest.
Other blog posts on the Detroit coverup
The Mayor's Unethical Behavior
Duties of Ethics Board Members
Responsibilities of a Lawyer Representing a Public Official
The Mayor's Resignation
Robert Wechsler
Director of Research-Retired, City Ethics
---
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- Robert Wechsler's blog
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