"Why hire a lawyer to do an internal investigation? It’s because you get the privileges. Otherwise, you’d save a little money and hire a consultant or accountant." These are the wise words of Bruce A. Green, Director of the Louis Stein Center for Law and Ethics at Fordham Law School, as quoted in the New York Times yesterday [1] in an article about the obstacles JPMorgan Chase has put in the way of prosecutorial access to internal notes of interviews regarding the bank's involvement in the Madoff case.

For government ethics, the most important question here isn't the strategy of using lawyers rather than other investigators (or, in the case of ethics advice, lawyers instead of government ethics professionals). The most important question is, Should government attorneys be differentiated from other government officials on the basis of their function or on the basis of their membership in a professional group?

Bar associations take the position that it is membership in a professional group (their group) that matters. But to those outside their group (which happens to draft not only its profession's rules of conduct, but also our laws), it seems unreasonable that the words spoken, notes written, and acts performed by one official are treated in a different manner from the same words, acts, and notes of another professional. It is clearly irrational, in a government context, to base a confidentiality privilege on membership rather than on function.

A professional association rule has no place in an organization where attorneys are government officials first, and only secondarily attorneys, and where as government officials or contractors, lawyers have special duties to the public that, when in conflict, override their professional duties.

For more on this topic, see the relevant section of my book [2] Local Government Ethics Programs.

Robert Wechsler
Director of Research, City Ethics

203-230-2548