Ethics for Municipal Lawyers CLE Seminar Kentucky League of Cities Convention October 6, 2006

Ethics for Municipal Lawyers Ethics for Municipal Lawyers CLE SeminarCLE Seminar

Kentucky League of Cities Kentucky League of Cities ConventionConvention

October 6, 2006October 6, 2006Phillip M. Sparkes

Director and Assistant Professor of LawLocal Government Law Center

Salmon P. Chase College of LawNorthern Kentucky University

Topics

I. California’s Code of Ethics for City Attorneys – A Harbinger of Things to Come? 

II. The Ethical Implications of Garcetti v. Ceballos 

III. The Municipal Attorney, Confidentiality, Privilege, and Ross v. City of Memphis           

IV. Cases and Opinions (time permitting) V. Random Thoughts (time permitting) 

California’s Ethical Principles for City Attorneys

141,030 resident, active lawyers 12% of all U.S. lawyers3.9 lawyers /1000

141,030 resident, active lawyers 12% of all U.S. lawyers3.9 lawyers /1000

11,336 resident, active lawyers 1% of all U.S. lawyers

2.7 lawyers /1000

Background

Impetus from city managers Concern about campaign contributions, attorneys

wanting to be city attorney, and elections installing new city leadership

ICMA Code of Ethics prohibits city managers from making campaign contributions

Chapters on :

Defining the client

Conflict of interest

Interests in contracts

Outside counsel

Confidentiality

www.cacities.org/attorneys

Ethical Principles for City AttorneysAdopted October 6, 2005

City Attorneys Department Business Session

Preamble

A city attorney occupies an important position of trust and responsibility within city government. Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards. Every effort should be made to earn the trust and respect of those advised, as well as the community served.

The City Attorneys Department of the League of California Cities has therefore adopted these ethical principles to:

Serve as an aspirational guide to city attorneys in making decisions in difficult situations,

Provide guidance to clients and the public on the ethical standards to which city attorneys aspire, and

Promote integrity of the city and city attorney office.

3 Basic Parts

Preamble setting purpose and goals Serve as an aspirational guide to city attorneys Provide guidance to clients and the public on the

ethical standards to which city attorneys aspire Promote integrity of the city and city attorney’s

office 10 Core Ethical Principles

Includes explanation why the principle is significant to the practice of municipal law

Examples of how the principles apply

Fundamental Principles

Rule of Law Client Trust No Politicization No Self-

aggrandizement Professionalism and

Courtesy

Policy versus Law Consistency Personal Financial

Gain Hiring by and of City

Attorneys Professional

Development

Rule of Law

“… report up the chain of command to the highest level of the organization that can act on the client city’s behalf.”

Model Rule of Prof”l Conduct 1.6(b)(2) & (3) 2003 changes permit disclosure of certain

confidential information MRPR 1.13(b)

2002 changes provide “… the lawyer shall refer the matter to higher authority…”

Client Trust

“The city attorney should be clear with individual council members and staff on the extent to which their communications with the city attorney can and will be kept confidential. The city attorney should be especially clear when confidentiality cannot be lawfully maintained.”

SCR 3.130(1.6) Comment 6 The requirement of maintaining confidentiality of

information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

No Politicization

“The city attorney or persons seeking to become city attorney should not make campaign contributions….”

2002 MRPR Rule 7.6 A lawyer shall not accept a government legal

engagement if the lawyer makes a political contribution for the purpose of obtaining it

Professionalism and Courtesy

Ky. Code of Professional Courtesy http://www.kybar.org/

Louisville Bar Assoc. Creed of Professionalism http://www.abanet.org

Policy versus Law

“The city attorney may offer input on policy matters, but should make clear when an opinion is legal advice and when it is practical advice.”

Advice on policy may be confidential (i.e., relating to representation of a client), but not necessarily privileged (i.e., for the purpose of seeking, obtaining, or providing legal assistance to the client)

Consistency

City attorney should not represent private clients if that representation will necessitate advancing legal principles adverse to city’s interest or hire outside counsel that advances legal principles adverse to city’s interests

Significant differences between SCR3.130(1.11) and 2002 MRPR 1.11

KBA E-421 (2003) Commonwealth Attorney – Condemnation Action In re Drake, 195 S.W.3d 232 (Tex. App. 2006)

Personal Financial Gain

“The city attorney should never use the power, resources, or prestige of the office for personal gain.”

KRS 65.003 Codes of ethics for local officials and employees

KRS 61.252 Prohibition against city officers and employees

contracting with city

Professional Development

Strong tradition of assisting their colleagues through formal or informal sharing of their knowledge and expertise

Attorney listserv – Municipal Code Corporation http://www.municode.com/

Chase Local Government Law Center

II. Ethical Implications of Garcetti v. Ceballos

Court Narrows Speech Rights Garcetti v. Ceballos,___ U.S. ___, 126 S.Ct.

1951, 164 L.Ed.2d 689, 74 USLW 4257 (May 30, 2006).

U.S. Supreme Court recently ruled that statements made by government employees in the course of their official duties are outside the protection of the First Amendment.

Classical approach

Treat the government and the individual equally as free agents, mutually competent to determine their own best interests

Measure the terms of the arrangement according to general principles of the common law of contract Employee is free to contract away constitutional

rights

Classical approach summed up A policeman may have a constitutional right

to talk politics, but he has no constitutional right to be a policeman. McAuliffe v. Mayor of New Bedford, 155 Mass.

216 (1892) (Holmes, J.) Approach prevails through ’50s and ’60s

Purist approach

The First Amendment disallows government to impose any restrictions on free speech by contract or otherwise.

Any terms, conditions, regulations, or restrictions on free speech, insofar as they come from government, are constitutionally void. Regards the common law of contracts as

essentially irrelevant.

Modern approach

Treat the First Amendment as applicable, then try to figure out what that means in particular circumstances

The First “Modern” Case

Pickering v. Board of Education, 391 U.S. 563 (1968)

Classical approach “unequivocally rejected” Public employees do not relinquish the First

Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest connected with the operation of the governments in which they work.

Lessons from Pickering

1. Employer-employee relationship still dominates analysis State has interests as an employer in regulating

the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.

Lessons from Pickering

2. Pickering balancing test “The problem in any case is to arrive at a balance

between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs though its employees.”

Matters of Public Concern

Connick v. Myers, 461 U.S. 138 (1983). “We hold only that when a public employee

speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”

Lessons from Connick

Public concern question is the threshold issue

Matter of public concern is narrowly defined Speech must 1) relate to a matter of political,

social, or other concern to the community 2) as determined by content, form, and context of the statement

Promoting Efficiency

Rankin v. McPherson, 483 U.S. 378 (1987)

“If they go for him again, I hope they get him.” Comment addressed a matter of public

concern A threat is not protected,

but this is not a threat

Promoting efficiency

Rankin v. McPherson On balance:

no evidence of interference with the efficient functioning of the office

no danger that the employee discredited the office by making the statement in public

no demonstration of a character trait that made her unfit to perform her work

Dissent: Can’t ride with the cops and cheer for the robbers

Experience with Pickering/Connick Pickering balancing test involves courts in a

difficult, highly fact-intensive inquiry 5-4 splits in the Supreme Court

Connick (in favor of employer) Rankin (in favor of employee) Garcetti

Garcetti v. Ceballos

“The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.”

Garcetti v. Ceballos

“The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. … We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Majority Opinion

Case is about affording government employers sufficient discretion to manage their operations.

Employer is free to control speech that the employer itself commissioned or created

“Official communications have official consequences.” need for substantive consistency and clarity ensure that communications are accurate, reflect sound

judgment, and promote the employer’s mission.

Not to worry

Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.”

The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.

Not to worry

Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment.

These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions

Dissents

Speech in the course of official duties gets First Amendment protection “Sometimes,” not “Never”

“The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” A public employee can wear a citizen’s hat when

speaking on subjects closely tied to the employee’s own job

Dissents

Wrong to regard any statement made within the scope of government employment as the government’s own speech

Legislative protections are a “patchwork,” not a “powerful network”

Grievance trap

Public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” If employers create a mechanism for airing

internal dissent and require employees to use it, employees risk that the courts will treat that speech as in the course of official duties and thus unprotected. Givhan v. Western Line

Consol. Sch. Dist., 439 U. S. 410

The duty of loyalty trap

Agent has duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him Restatement of Agency (2d) § 381

Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with the agency. Restatement of Agency (2d) § 387

Duty of loyalty trap

We thus have no occasion to articulate a comprehensive framework for defining the scope of an duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one.

Springer v. City of Atlanta, 2006 WL 22461888 (N.D.Ga. Aug 4, 2006).

Whistleblower laws

Majority:“Powerful network” of legislative enactments—such as whistle-blower protection laws

Dissent: “the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not showing that worries may be remitted to legislatures for relief.”

Whistleblower laws

Whistleblower Protection Act of 1989 KRS 61.102

Federal Act

Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001) Complaints to a supervisor about the supervisor’s

conduct are not “disclosures” Disclosures made as part of the employee’s

normal duties are not covered. “All government employees are expected to

perform their required everyday job responsibilities ‘pursuant to the fiduciary obligation which every employee owes to his employer.”

Kentucky claim

Elements: (1) the employer is an officer of the state or one of its

political subdivisions; (2) the employee is employed by the state; (3) the employee made a good faith report of a

suspected violation of a state statute or administrative regulation to an appropriate body or authority; and

(4) the employer took action or threatened to take action to punish the employee for making this report or to discourage the employee from making this report.

Kentucky act

Cabinet for Families and Children v. Cummings 63 S.W.3d 425 (Ky. 2005) Grant recipient an employee for purpose of act

Gaines v. Workforce Development Cabinet ___ S.W.3d ___, 2005 WL 3002996 (Ky. App.

2005) Act covers internal whistleblowing

“Additional safeguards”

Majority: Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment.

Breyer’s response

Ceballos complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland

Two factors together justify First Amendment review: First, the speech at issue is professional speech of a

lawyer Second, the Constitution itself imposes speech

obligations upon the government’s professional employee.

Rules of conduct

The rules of the law of legal ethics as constituted for the private lawyer are not reliable and effective guides for the public lawyer

Ultimate source of the rules of legal ethics is the lawyer-client relationship Premised on one lawyer, one client Lawyer’s relationship to the government client is

not so simple

Rules of conduct

Much of the work of the government lawyer is non-adversarial, but the canons downplay the role of lawyer as counselor

Government lawyer is responsible for the positions the agency takes in a way that private lawyers are not

Government lawyer is both counsel for the government and a government official

Specific Rules

Rule 1.6 Confidentiality of Information Rule 1.13 Organization as Client Rule 3.6 Trial Publicity Rule 3.8 Special Responsibilities of a

Prosecutor Rule 5.1 Responsibilities of Partners,

Managers, and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate

Lawyer

III. The Government Attorney, Confidentiality, Privilege, and Ross v. City of Memphis

Agency

Attorney-client = Agent-principle Duty of Loyalty includes duty not to use or

disclose confidential information Attorney held to a higher standard than

ordinary agent Clark v. Burden, 917 S.W.2d 574 (Ky. 1996)

Attorney’s Duty

Three aspects: the ethical duty to preserve client confidences the attorney-client privilege work product doctrine

Attorneys have an ethical obligation to maintain client confidences even if they are not privileged.

Rules

MRPR 1.6: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

SCR 3.130(1.6)(a): A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)

The Problem

Rules of Professional Conduct modeled on private practice one lawyer/one client plays up lawyer/advocate; plays down

lawyer/counselor Assumption is that the government lawyer

represents his or her client in much the same way a private lawyer represents the individual client

Lawyers covered

Rules apply to attorneys in government Rules apply to attorneys performing non-legal

functions Rules apply to attorneys performing non-

adversarial legal functions

The client

Client may always waive confidentiality Client could be:

the public the government as a whole the branch of government in which the lawyer is

employed the particular agency or department in which the

lawyer works the responsible officers who make decisions for

the agency.

Attorney-client privilege

Evidentiary rule KRE 503

Broad government attorney-client privilege Privilege in federal court is the product of

case law, not rule Restatement §74 recognizes a government

attorney-client privilege Sixth Circuit assumed government could assert

the privilege

Ross v. City of Memphis

Government entity can assert attorney-client privilege in the civil context 423 F.3d 596, 601 (6th Cir. 2005)

“The risk of extensive civil liability is particularly acute for municipalities, which do not enjoy sovereign immunity. Thus, in the civil context, government entities are well-served by the privilege, which allows them to investigate potential wrongdoing more fully and, equally important, pursue remedial options.”

Grand juries

Outside civil context, circuits are split 7th, 8th, D.C. circuits: No 2nd Circuit: Yes 6th Circuit: No opinion State ex rel. Thomas v. Schneider, 212 Ariz. 292,

130 P.3d 991 (Ariz. App. 2006) Government is the client; you can’t assert the

privilege against the client

Waiver

Privilege belongs to the client In Ross, it belonged to the city, not its former

official

Elements of Privilege

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his

capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal

advisor (8) except the protection be waived

Caution

Application of governmental privilege tends to follow application of corporate privilege, but not always Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998) AG tends to follow corporation analogy in Open

Records Decisions

Open Records

KRS 61.878(1)(l): All public records the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly Allows withholding of materials covered by KRE

503 and CR 26.02(3) KRS 61.878(1)(j): Preliminary

recommendations in which opinions are expressed or policies formulated or recommended

Open Records

06-ORD-125 AG criticizes policy of blanket exclusion on the

basis of attorney-client privilege 06-ORD-096

County attorney’s broad claim of privilege rejected 06-ORD-018

City improperly withheld records claimed to be privileged

Open Records

05-ORD-177 Extended discussion

04-ORD-187 Extended discussion

Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001)

Judicial Watch, Inc. v. Department of Justice, 432 F.3d 366 (D.C. Cir. 2005) FOIA segregation requirement does not apply to

attorney work product

IV. Cases and Opinions Update

Cases

City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839, 43 Cal.Rptr.3d 771 (Cal. 2006) Disqualification of city attorney’s office

In re Dean, 212 Ariz. 221, 129 P.3d 943(Ariz. 2006) Prosecutor’s romantic relationship with judge

Cases

Iowa Supreme Court Attorney Disciplinary Bd. v. Zenor, 707 N.W.2d 176 (Iowa 2005) County attorney/prosecutor representing criminal

defendants In re Vanderbilt, 279 Kan. 491, 110 P.3d 419

(Kan. 2005) Discipline of county attorney

Mahoning County Bar Assn. v. Sinclair, 105 Ohio St.3d 65, 822 N.E.2d 360 (Ohio 2004) Counsel for congressman suspended

V. Random Thoughts

Model Rules

MRPR 3.3(b): A lawyer who represents a client in an

adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Other bars

Ohio New rules to take effect 2/1/2007 Moving to Model Rules Adopted broad rule 1.6; did not adopt Rule 7.6

Washington New rules took effect 9/1/2006 Omitted language in MRPR 1.6 permitting

disclosure to comply with “other law” Adopted Rule 7.6

Other bars

Washington's distinctive rule on outside counsel 1.13(h) For purposes of this Rule, when a lawyer who is not

a public officer or employee represents a discrete governmental agency or unit that is part of a broader governmental entity, the lawyer's client is the particular governmental agency or unit represented, and not the broader governmental entity of which the agency or unit is a part, unless: (1) otherwise provided in a written agreement between the lawyer and the governmental agency or unit; or (2) the broader governmental entity gives the lawyer timely written notice to the contrary, in which case the client shall be designated by such entity.

Other bars

D.C. Proposed Amendments (Oct. 2005) Permissive disclosure under Rule 1.6 Significant differences in imputed disqualification

under Rule 1.10 Adopts “report up” provision in Rule 1.13 Greater protection than under 3.3(b) Does not adopt 7.6

Weblogs

Brad Cowgill, LegalEthics.info http://cowgill.blogs.com/legalethics/2006/08/

update_how_the_.html New York proposed rule

http://www.nycourts.gov/rules/1200-6.pdf ABA Journal e-Report, Blogosphere Aboil,

http://www.abanet.org/journal/ereport/s29blog.html Would extend to out-of-state blogs that appear in

New York Comment period open until November 15

Advertising

New Jersey Attorneys prohibited from advertising their

inclusion in "SuperLawyers" and "Best Lawyers in America“ At odds with PA, IA , VA

Metadata

Metadata is data about data Metadata is structured, encoded data that

describe characteristics of information-bearing entities to aid in the identification, discovery, assessment, and management of the described entities

A kind of inadvertent disclosure that could result in loss of privilege

Metadata

Making sense of metadata: a mega-list of links for lawyers http://cowgill.blogs.com/legalethics/2006/03/making_sense_of.html

NYSBA Opinion 782 – 12/8/04 Lawyers have a duty under DR 4-101 to use

reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.

Florida proposal – unethical to mine Approach similar to receiving inadvertent fax

Government Codes of Conduct Recent Activity

New Jersey, Uniform Code of Ethics, effective March 15, 2006

Tennessee, Comprehensive Governmental Ethics Reform Act of 2006, fully effective Oct. 1, 2006

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