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

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Ethics for Municipal Lawyers CLE
SeminarKentucky League of Cities
ConventionOctober 6, 2006

• Phillip M. Sparkes
• Director and Assistant Professor of Law
• Local Government Law Center
• Salmon P. Chase College of Law
• Northern Kentucky University

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Topics

• I. Californias 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) 

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Californias Ethical Principles for City
Attorneys
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141,030 resident, active lawyers 12 of all
U.S. lawyers 3.9 lawyers /1000
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141,030 resident, active lawyers 12 of all
U.S. lawyers 3.9 lawyers /1000
11,336 resident, active lawyers 1 of all U.S.
lawyers 2.7 lawyers /1000
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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

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Chapters on Defining the client Conflict of
interest Interests in contracts Outside counsel
Confidentiality www.cacities.org/attorneys
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• Ethical Principles for City Attorneys
• Adopted 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.

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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 attorneys
  office
• 10 Core Ethical Principles
• Includes explanation why the principle is
  significant to the practice of municipal law
• Examples of how the principles apply

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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

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Rule of Law

• report up the chain of command to the highest
  level of the organization that can act on the
  client citys behalf.
• Model Rule of Profl 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

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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.

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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

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Professionalism and Courtesy

• Ky. Code of Professional Courtesy
• http//www.kybar.org/
• Louisville Bar Assoc. Creed of Professionalism
• http//www.abanet.org

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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)

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Consistency

• City attorney should not represent private
  clients if that representation will necessitate
  advancing legal principles adverse to citys
  interest or hire outside counsel that advances
  legal principles adverse to citys 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)

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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

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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

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II. Ethical Implications of Garcetti v. Ceballos
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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.

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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

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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

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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.

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Modern approach

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

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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.

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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.

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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.

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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 employees
  behavior.

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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

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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

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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 Cant ride with the cops and cheer for
  the robbers

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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

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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 employees official
  duties.

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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.

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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 employers
  mission.

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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
  enactmentssuch as whistle-blower protection laws
  and labor codesavailable to those who seek to
  expose wrongdoing.

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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

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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 ones employment is
  quite wrong.
• A public employee can wear a citizens hat when
  speaking on subjects closely tied to the
  employees own job

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Dissents

• Wrong to regard any statement made within the
  scope of government employment as the
  governments own speech
• Legislative protections are a patchwork, not a
  powerful network

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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

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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

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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).

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Whistleblower laws

• MajorityPowerful network of legislative
  enactmentssuch 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.

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Whistleblower laws

• Whistleblower Protection Act of 1989
• KRS 61.102

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Federal Act

• Huffman v. Office of Personnel Management, 263
  F.3d 1341 (Fed. Cir. 2001)
• Complaints to a supervisor about the supervisors
  conduct are not disclosures
• Disclosures made as part of the employees 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.

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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.

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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

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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.

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Breyers 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 governments professional
  employee.

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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
• Lawyers relationship to the government client is
  not so simple

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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

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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

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

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Attorneys 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.

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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)

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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

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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

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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.

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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

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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.

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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 cant assert the
  privilege against the client

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Waiver

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

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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

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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

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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

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Open Records

• 06-ORD-125
• AG criticizes policy of blanket exclusion on the
  basis of attorney-client privilege
• 06-ORD-096
• County attorneys broad claim of privilege
  rejected
• 06-ORD-018
• City improperly withheld records claimed to be
  privileged

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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

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IV. Cases and Opinions Update
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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 attorneys office
• In re Dean, 212 Ariz. 221, 129 P.3d 943(Ariz.
  2006)
• Prosecutors romantic relationship with judge

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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

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V. Random Thoughts
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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.

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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

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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.

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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

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Weblogs

• Brad Cowgill, LegalEthics.info
• http//cowgill.blogs.com/legalethics/2006/08/updat
  e_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

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Advertising

• New Jersey
• Attorneys prohibited from advertising their
  inclusion in "SuperLawyers" and "Best Lawyers in
  America
• At odds with PA, IA , VA

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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

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Metadata

• Making sense of metadata a mega-list of links
  for lawyers
• http//cowgill.blogs.com/legalethics/2006/03/makin
  g_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

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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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