In the past few months, I’ve stumbled across the issue of the obligations and duties of a government lawyer. If you have followed this blog, you are unlikely to be surprised that I think government lawyers I have come across in this battle have forgotten that they are paid by the public and should serve in the public interest.
I think government lawyers should say no to public officials once and awhile. Also, these lawyers should tell their clients to follow the rules. If the officials fire them for this, then they can go over the heads of the officials and go to the voters with the information. Or there might be some other mechanism to protect ethical lawyers. I haven't figured this part out yet.
The NYSBA Task Force on Government Ethics recently said, "There is agreement on the basic principles of public service: public servants are expected to act in the public interest; public servants are expected to act honestly." The clear thrust of the task force report (not the quote, the whole report) is that holes in the current municipal ethics framework allow for unethical behavior to flourish.
I see little daylight between the report and my complaint as filed in the Northern District, Federal Court.
This blog post deals with government attorneys who are not public defenders or prosecutors. The rules for those two types of government lawyers (defenders and prosecutors) are relatively clear. I’m concerned about the others, all the contractors and employees who work for local governments, a few of whom I have come to know over the past few months.
Courts have ruled on this. On one hand, the consensus seems to be that the attorney works for the board or legislature [Brown & Williamson Tobacco Corp. v. Pataki, Salkin, supra note 3, at 288; Upjohn v. United States, 449 U.S. 383, 389 (1981).]
This makes sense. While the attorney is paid by the taxpayers as a group and represents that government as a whole, the elected government is empowered by the citizens and taxpayers to govern, in theory. Thus, the government attorney works for an elected government as a governing body (assuming they are not up to something other than governing), not the individual citizens in that jurisdiction. The alternative to this position might be either chaos or attorneys who get to choose who and what they will do without paying attention to the duly elected governing body of the jurisdiction.
If the board is the client, of course, the board has to meet, have a quorum and vote on what the attorney should do and who the attorney will be. I have yet to see this actually happen. Somehow, the attorney just does stuff, writes letters on the behalf of the board, takes actions, maybe consulting the chair of the board, but without a vote, sometimes without a quorum. In my experience, the board seems to be standing still while the attorneys dance around and do whatever they want. That, I am quite sure, is a problem. I don't see, in fact, clear lines of authority from elected officials who vote and go on the record and attorneys who take actions based on votes conducted on the record and in public.
Lawyers do stuff based on back room, obscure deals that may not reflect the will of the majority of the board in every case that I have experienced first hand. To me, this pattern of cloudy authority seems to be the norm, not the exception.
Leaving the issue of whether the board actually voted to take the action presented in an attorney letter, let’s assume the board voted for the attorney to do something in a legal way, with a real vote. (I’ve never seen that happen but let’s pretend.) Now the board is the client and the attorney is the attorney.
To say that the town government (or county, city, etc.) is the “client” is not the end of the story, however. First, we have to note that the determination that the government is the client is based on the assumption that the elections that produced the government were free and fair. If the elected officials in fact stole their offices, then the attorney should clearly not accept taxpayer money to do their bidding even if they actually went and voted on something (again, hypothetical).
Okay, democratically elected and actually voted: now we also have to assume that the government is governing and not doing something else. If instead of governing, passing laws and stuff, the board is, say, running an illegal gambling operation in town hall, then what should the attorney do? Even if they vote to have the attorney file papers to get their poker operation online, should he or she actually do it?
Forget gambling. What if the board is giving out taxpayer money to their friends? Or assessing the properties of their allies ridiculously low? Or trying to drive political opponents out of town by destroying their businesses? Or making threats of physical violence? Or orchestrating witch hunts? Or passing laws to put their enemies in jail? Or hiring special prosecutors to put their enemies in jail? Or encouraging neighbors to observe or harass other neighbors? Or taking strange payments? Or putting a residence under sustained surveillance for no reason? Or sending in fraudulent invoices? Or not turning over deposit slips? Or ignoring FOILs? Or trolling the internet for reasons to raise the taxes of their political opponents? Or trying to stifle free speech? Or discriminating against people because of who they are? Or putting malicious documents into the public record?
We can’t assume that governments just govern. They might have some choices about what they will in fact do when they get into power.
Precedent seems clear on this: the government attorney in no way can be the private attorney for the individuals who are the elected officials. Elected officials have to hire their own attorneys to defend themselves from criminal or civil charges just like everyone else.
So, not all clients are the same. The board might be the “client” but that is not the same as my personal lawyer, me as a client… not even close.
And the courts more or less see the logic of separating the individuals from the government as a whole. “[I]t follows that . . . [a] government lawyer [is] duty-bound to report internal criminal violations, not to shield them from public exposure.” [In re Witness Before the Special Grand Jury, 288 F.3d at 293 (citing Nixon, 418 U.S. at 712-13; In re Lindsey, 158 F.3d at 1273).] And “the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials.” [Grand Jury, 112 F.3d at 920-21.] And there is the fraud-crime exception to priviledge (Id. at 505; Zolin, 491 U.S. at 573, etc.].
So, the government attorney should not take the taxpayer’s money to abet or enable individual government officers form engaging in crimes regardless of whether they were fairly elected or not, whether they actually voted on something or not.
Now here is a new problem: what do you do when the official activities of the government official are suspect and this behavior leads to a lawsuit against the local government as a whole? In terms of punitive damages, the government attorney should work to prevent the taxpayer from taking a hit by fighting the suit to prevent the court from ordering the town to pay up.
But what would the attorney’s obligation be if the lawsuit requests a remedy of, say, answering FOIL requests or asks the court to issue an order to obtain unpaid real estate taxes, all actions that would benefit the town as a whole, the taxpayers as a group? If the lawsuit were intended to increase the revenue and accountability of the government, why would the government attorney even want to spend taxpayer money fighting such a suit?
If the board didn't vote, how can the attorney know what to do with the suit? Maybe he/she should agree to the items that are in the public interest, or at least get the board to vote of whether or not they want to fight, say, a suit designed to collect back taxes from scofflaw property owners?
Why would the town spend money to fight a suit designed to collect taxes from scofflaw property owners? And if they did decide to do that, wouldn't the board have to vote?
What if the interests of the town and the official conflict? What if saving the taxpayer money, improving government services and accountability and preventing the disclosure of information damaging to the official are at cross purposes? This scenario must have played out many times. Should the official have their own personal lawyer to defend their interests? And then we have three parties?
And where is the vote? The board should settle these matters before the town goes to court and starts spending tax payer money.
The official was working in his/her official capacity and his/her official conduct lead to a lawsuit. Even if the official might have been abusing his/her authority, that might be a difficult call to make: were all of his/her actions abusive? How hard would the attorney have to work to find out? Seems like the government lawyer is duty bound to check and see if the client is in fact governing.
The town as a whole, the government is supposed to protect the official from legal bills for official work. Yet, if the official is clearly engaged in illegal activities, how is it fair to expect the citizen to pay his/her own legal bills but the wrongdoing official is allowed to avail him/herself of the almost unlimited legal budget of the government?
There have to be some kind of guidelines.
Here's what I propose as rules:
Is the government fairly elected (and agencies under that government)? If yes, then that board is my client.
Is the government official or board asking me to do something that has to do with governing? If yes, then I can respond to the request. If no, then I must decline the offer.
Is the governing official or board doing something clearly illegal? If yes, then I have to tell them to stop in writing.
Is the governing official or board possibly doing something illegal or unethical based on reasonable information but I'm not sure? If there is a good chance they are doing something illegal AND/OR they are asking you to do something unrelated to governing, then the attorney must ask the governing official for more information and inform the official in writing that there may be an ethical issue at stake. The attorney must then wait before acting until the issue is resolved.
This would need some more clarification but you see how it would work: a stop and check letter. Joe says you, official, are stealing and that is why you are asking me to go and start proceedings against this same Joe. Send the stop and check letter.
The board should not be able to hire any other attorney until the matter in the stop and check letter is resolved. It doesn't have to be a crime... something unethical. Stop and check. Everything is kosher? Okay, then we proceed? Not sure? Then stop.
Is the governing official or board asking me to do something without getting legal approval (voting)? If yes, you must tell them in writing how to legally request these services, outline the procedure for hiring and ordering attorney work.
Is communication between officials and lawyer confidential? If the communication addresses issues of governance, yes. If the communication is about anything other than governing, no. That is why the attorney needs to send the official a letter when the issue has moved out of the governing realm, to advise them that they are not their personal attorney and can ethically and legally (if I had my way) deal with governance issue.
Now, what does governing mean? Certainly, passing legislation is governing and threatening to beat someone up or attempting to deprive them of their property on the basis of the ethnic composition of their family is not. There will be some other areas that are not so clear.
Rules: these might work.