Ethics for the State and Local Government Attorney
KEITH A. CALL
According to my unofficial count, there are approximately 255 Attorneys General in Utah. That easily makes the AG’s office the largest law firm in Utah. There are approximately fifty-five U.S. Attorneys. Utah has twenty-nine counties, each of which has some form of County Attorney. As of 2010, according to the “official” internet source Wikipedia, Utah had 243 incorporated cities and towns. And there are more water, sewer, fire, snow removal, animal control, and other special service districts, commissions, boards, and committees than I know how to count.
Each of these government entities needs legal counsel, making the demand for government legal services a major part of Utah’s legal economy. State and local government attorneys face unique ethical dilemmas in a unique context. This article addresses some of the more common ethical questions.
Who Is the Client?
Let’s start with the biggest question of all. A government attorney’s client is…[drumroll]…the government entity, of course. But what does that really mean? Rule 1.13(a) states that an organization’s attorney represents the organization “acting through its duly authorized constituents.” Utah R. Prof’l Conduct 1.13(a). A government entity can act through its voters, its elected governing board, its elected officials, and its employees. To which of those groups does the attorney owe her duties of loyalty, confidentiality, and communication?
Utah Rule of Professional Conduct 1.13 contains an additional relevant provision not included in the Model Rules. Rule 1.13(h) specifically provides that the “government lawyer’s client is the governmental entity except as the representation or duties are otherwise required by law.” Id. 1.13(h). This rule recognizes that a government lawyer’s duties to his or her client under Rule 1.13 can be modified by duties required by law for government entities. The comments to the rules clearly indicate a softening of rules related to conflicts and confidentiality for government lawyers. See, e.g., Rule 1.13 cmt. 13a–13b.
Candidly, these special provisions for government lawyers may add more confusion than clarity. For example, government attorneys often work closely with the individuals who make up that government. Close relationships developed with those individuals may make it difficult for the attorney to place the interests of the governing board over the interests of those individuals.
If a government attorney leads an employee to believe that the attorney represents the employee individually, the government entity may lose control over confidentiality and privilege decisions concerning the attorney’s conversations with that employee. For example, in 2011, a child sex abuse scandal broke open at Penn State University when assistant football coach Jerry Sandusky was indicted on fifty-two counts of child molestation. In January 2016, a Pennsylvania appellate court ruled that the University’s general counsel at the time, Cynthia Baldwin, had confused her roles, leading the University President, Graham Spanier, to believe that she represented him personally. In an appeal of Graham’s motion to exclude some of the charges, the court said, “We find that Ms. Baldwin breached the attorney-client privilege and was incompetent to testify as to confidential communications between her and Spanier during her grand jury testimony.” Commonwealth v. Spanier, 132 A.3d 481, 482 (Pa. Super. 2016). The court threw out perjury charges that were based on Ms. Baldwin’s testimony. Id. at 482, 498.
The same concerns can arise with individual board members. Assume a county commissioner visits the office of the county attorney, closes the door, and says, “I’ve got something important to tell you. Can we keep this just between you and me?” As much as that attorney might want to agree, his ethical obligations should prevent him from promising to keep the conversation confidential. The attorney owes an ethical duty to the government entity as a whole, not to individual commissioners. If the commissioner tells the attorney something that affects the interests of the county, then the attorney likely has an obligation to share that information with the commission in order to protect the county’s interests.
What if a newly elected council member demands that the city attorney reveal what occurred in a closed session between the attorney and the “old” council last year? Again, the attorney’s duty of confidentiality runs to the council as a whole. The attorney has an obligation not to disclose information relating to her representation of the city - even to a member of the city council - without approval from a majority of the council. One would hope that the council would not mind if new members are briefed on past confidential discussions with the city attorney, but that is a decision for the council to make and not the attorney.
What Conversations Are Covered by a Government Entity’s Attorney-Client Privilege?
The attorney-client privilege has been codified by statute in Utah: “An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or any advice given regarding the communication in the course of the professional employment.” Utah Code Ann. § 78B-1-137(2). Similarly, Utah Rule of Evidence 504(b)...