Supreme Court of South Carolina.
501*501 John David Hawkins, of Spartanburg, for Petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, and Special Assistant Attorney General Alexander G. Shissias, all of Columbia, for Respondent.
Justice PLEICONES:
The circuit court granted petitioner's motion to quash an indictment charging petitioner with violating the Pollution Control Act (the Act).[1] The State appealed, and the Court of Appeals reversed. State v. Peake, 345 S.C. 72, 545 S.E.2d 840 (Ct.App.2001). We granted certiorari, and affirm the decision reinstating the indictment.
Petitioner, a real estate developer, owned a private water treatment plant. The Department of Health and Environmental Control (DHEC) contacted petitioner in the summer of 1996 concerning the operation of this plant. In August 1996, petitioner and his attorney[2] met with DHEC representatives, including Ms. Hunter-Shaw,[3] in Columbia. As discussions 502*502 continued during 1996, DHEC suggested petitioner pay a substantial monetary penalty for violating the Act.
Also in 1996, unbeknownst to petitioner, Ms. Hunter-Shaw referred the case to a DHEC committee that reviews matters and determines whether to refer the violations to the Attorney General for possible criminal prosecution. Ms. Hunter-Shaw never mentioned the potential criminal liability to petitioner, and neither he nor his attorney ever inquired. Both petitioner and his attorney testified at the hearing on petitioner's motion to quash the indictment that they had "assumed" a settlement would cover "everything." Ms. Hunter-Shaw testified at that hearing that she never discussed the possibility of criminal charges with petitioner or his attorney because, "I didn't want to put that at jeopardy, and it wouldn't—it simply wouldn't have come up." It is undisputed that Ms. Hunter-Shaw never affirmatively represented that the settlement covered criminal charges as well as civil liability issues.
Eventually DHEC and petitioner settled the civil matter by having petitioner deed the waste treatment plant to the Town of Ninety Six. No monetary penalty was exacted. Shortly thereafter, petitioner was indicted for violating S.C.Code Ann. §§ 48-1-90(a) and 48-1-320 of the Act.
ISSUES
(1) Can DHEC settle criminal charges arising from alleged violations of the Act?
(2) Is "fundamental fairness" violated if the State is permitted to prosecute petitioner under the facts of this case?
Petitioner first contends that the State was forbidden to criminally prosecute him because of Ms. Hunter-Shaw's actions. He relies on several theories to support this contention, including estoppel, apparent authority, and actual authority, all premised on the alleged "special nature" of the Act. We agree with the Court of Appeals that the circuit court erred in granting petitioner's motion to quash the indictment.
The declared purpose of the Act is "to maintain reasonable standards of purity of the air and water resources of the 503*503 State...." S.C.Code Ann. § 48-1-20 (1986). Further, "to secure these purposes and the enforcement of these provisions of this chapter [DHEC] shall have authority to abate, control, and prevent pollution." Id. The Act contemplates that persons or entities that violate the Act may be subject to both civil and criminal liability. See S.C.Code Ann. §§ 48-1-300; 48-1-320; and 48-1-330. A civil violation can result in the imposition of a penalty while a criminal violation may result in a fine and/or imprisonment. Compare § 48-1-320 (criminal) with § 48-1-330 (civil). The most critical statute provides: § 48-1-210. Duties of Attorney General and solicitors.
The Attorney General shall be the legal advisor of the Department and shall upon request of the Department institute injunction proceedings or any other court action to accomplish the purpose of this chapter. In the prosecution of any criminal action by the Attorney General and in any proceeding before a grand jury in connection therewith the Attorney General may exercise all the powers and perform all the duties which the solicitor would otherwise be authorized or required to exercise or perform and in such a proceeding the solicitor shall exercise such powers and perform such duties as are requested of him by the Attorney General.
Petitioner contends this statute, read with the other provisions of the Act, vest prosecutorial authority in DHEC. Petitioner also relies on the fact that the attorney who would prosecute petitioner's criminal case is a DHEC employee, who has been appointed an acting Attorney General, rather than an Attorney General's employee. We disagree.
The first sentence of § 48-1-210 envisions that DHEC will be responsible for the administration and prosecution of civil matters and penalties, unless it requests the involvement of the Attorney General. See also S.C.Code Ann. § 48-1-50(7) (DHEC may "[s]ettle or comprise any action or cause of action for the recovery of a penalty or damages under this chapter..."); § 48-1-50(11) (DHEC may "[a]dminister penalties...."). On the other hand, the second sentence of § 48-1-210 provides unequivocally that the Attorney General, or the solicitor acting pursuant to the Attorney General's instructions, will bring any criminal charges.
504*504 We agree with the Court of Appeals that § 48-1-220 could be read to affect this distribution of authority. This one sentence statute provides: "Prosecutions for the violation of a final determination or order shall be instituted only by [DHEC] or as otherwise provided for in this chapter."[4] Petitioner would read this statute to grant DHEC the authority to determine whether to pursue a criminal prosecution, while acknowledging the Attorney General's sole authority to control the process once the decision to prosecute is made. We agree with the Court of Appeals that reading the statute in this way would cause it to run afoul of S.C. Const. art. V, § 24. This constitutional provision vests sole discretion to prosecute criminal matters in the hands of the Attorney General. In State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), this Court held that a statute purporting to require an executive agency to refer a case before a criminal violation could be prosecuted was violative of this provision. If § 48-1-220 were read to make DHEC the gatekeeper for criminal prosecutions arising under the Act, the statute would be unconstitutional.
The Court of Appeals properly construed § 48-1-220. It read the first clause of § 48-1-220 to give DHEC authority over civil prosecutions, and read the second clause, "or as otherwise provided for in this chapter," to refer to criminal prosecutions brought by the Attorney General pursuant to the second sentence of § 48-1-210. The decision whether to pursue criminal charges for an alleged violation of the Act is vested solely in the Attorney General. The corollary of this proposition is that the authority to grant immunity from criminal prosecution also resides exclusively in the Attorney General. Cf., Ex parte Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000) (prosecutor's discretion whether to try, to plea, or not to prosecute at all).
Further, the fact that the Attorney General has the authority to "deputize" an attorney employed by a state agency to act as an Attorney General for purposes of prosecuting a criminal case does not convert Ms. Hunter-Shaw or 505*505 DHEC itself into an Attorney General. As the Court of Appeals pointed out, the deputization here occurred after the civil settlement, and the DHEC attorney so deputized played no part in that settlement.
The Attorney General, not DHEC, determines whether to pursue criminal charges for a violation of the Act. To construe the Act in a manner that involves DHEC in the decision to initiate or pursue criminal charges would create a constitutional infirmity where none need exist. E.g., Curtis v. State, 345 S.C. 557, 549 S.E.2d 591 (2001) (statutes to be given a constitutional construction when possible).
Petitioner next argues that because he and his attorney "reasonably" assumed Ms. Hunter-Shaw to be settling both civil and criminal liability issues, she was possessed of either actual or apparent authority to do so. Alternatively, he contends that because of these reasonable beliefs, the State should be estopped to now pursue these criminal charges. The Court of Appeals consolidated these claims, and held that because Ms. Hunter-Shaw lacked actual authority to grant criminal immunity, the State could not be estopped. We agree. E.g., Heyward v. South Carolina Tax Comm'n, 240 S.C. 347, 352, 126 S.E.2d 15, 18 (1962) ("The question is not one of intention, but of power; and, if the officer has not power to act, his action is not state action, and so affords no basis upon which to predicate estoppel against the state").
The Court of Appeals properly held that the Act did not and could not authorize a DHEC employee to extend criminal immunity to petitioner.
Finally, petitioner argues that it is fundamentally unfair and a violation of his due process rights to allow the State to criminally prosecute him under these circumstances. He asserts a number of different bases for this proposition:
1) He was compelled to deed away his property with the false inducement that the whole matter would be resolved;
2) If and when he is tried, the fact that he deeded the plant makes him appear guilty; and
506*506 3) The same woman who falsely induced him to deed the property secretly reported him to the Attorney General for criminal prosecution.
It may well have been unfair of Ms. Hunter-Shaw not to reveal the fact that she had referred the matter for criminal consideration. We nevertheless do not find that her conduct rose to a level that would cause us to question the constitutionality of petitioner's criminal prosecution.
The decision of the Court of Appeals reversing the circuit court order quashing the indictment is
AFFIRMED.
MOORE, J., concurs. BURNETT, J., concurring in a separate opinion in which TOAL, C.J., and WALLER, J., concur.
JUSTICE BURNETT CONCURRING:
While I agree with this Court's ultimate legal conclusion, I write separately to address the conduct of DHEC in this matter for fear that it is emblematic of the agency and the manner in which it manages our State's citizens.[1]
To demonstrate the impropriety of DHEC's actions a fuller recitation of the facts is necessary. Mr. Peake and his attorney met with DHEC officials, including Ms. Hunter-Shaw, in August of 1996, to discuss the operation of the private water treatment plant. At that time, Ms. Hunter-Shaw suggested Mr. Peake deed the sewer system to the Town of Ninety Six. Mr. Peake, on the advice of his attorney, 507*507 initially declined to do so for two obvious reasons. First, deeding the sewer system would result in the loss of a $325,000 investment in the property. Second, Mr. Peake was concerned such a transfer could be considered as evidence of guilt in any subsequent criminal prosecution.
Ms. Hunter-Shaw did not inform Mr. Peake or his attorney that she had recommended investigation for possible criminal violations. At the time Ms. Hunter-Shaw sought to persuade Mr. Peake to deed the plant to the city, she began the process for Mr. Peake's subsequent indictment on criminal charges.
Despite several subsequent personal and telephone conferences, Ms. Hunter-Shaw never informed Mr. Peake's attorney that DHEC was recommending criminal prosecution because she "didn't think it was anything that he needed to know." Mr. Peake's attorney, now a Master-In-Equity in Spartanburg County, testified that he would not have advised his client to deed over the plant if the concern of criminal prosecution had not been resolved. Further, the attorney testified of his telephone conversations with Ms. Hunter-Shaw, which included repeated assurances that if Mr. Peake deeded the plant to the Town of Ninety Six then the "entire matter" would go away.
Of no solace to Mr. Peake is the observation that had the Attorney General's Office criminally charged him earlier than it had, or even if DHEC ever directly notified him they recommended he be criminally charged, this case would not have been resolved as it was. Mr. Peake under criminal indictment would be afforded substantial rights against what could only be deemed prosecutorial misconduct. In keeping the details of a criminal prosecution secret while maintaining the prospect of settlement which could "make the whole thing go away" DHEC sought to gain control of Mr. Peake's property while keeping alive the option of criminal prosecution.
To Mr. Peake the settlement offer by DHEC must be accepted to conclude civil and potential criminal proceedings. In exchange for surrendering the $325,000 investment in the property, Mr. Peake reasonably concluded the threats of prosecution by the State would be ended. Instead the "settlement" effected the surrender of the opportunity to obtain any return on his investment while still being held accountable for 508*508 possible criminal charges. The settlement was all the more troublesome because the act of surrendering the land could be viewed as an acknowledgement of guilt.
At best this case illustrates the problems which can occur when a governmental organization entrusts the enforcement of complicated statutes to those not trained to understand the import of telling a citizen "do this and all your trouble will go away."
At worst the facts here demonstrate a cultural environment at a State agency to abuse those the agency is entrusted to serve in order to obtain their idea of maximum results. It must be remembered, however, that government is not business and DHEC does not exist to defeat competitors. Instead, it is a State agency entrusted with the stewardship of the people's environment. This stewardship means they must not only zealously guard the environment, but must also be zealously on guard against a tendency to abuse its powers for what it considers to be the greater good.
Although the Attorney General retains prosecutorial authority, agency responsibilities must be completed with openness, candor and integrity. The matter was not something removed from Ms. Hunter-Shaw's control or on the periphery of her responsibilities. The decision to proceed criminally against Mr. Peake came directly from a referral by Ms. Hunter-Shaw. This calculated conduct may have allowed DHEC to effect transfer of the plant to a town and allow the State to seek a criminal indictment, but Mr. Peake was inequitably treated.
While Ms. Hunter-Shaw is not a prosecutor, she should be aware of the spirit and Rules of Professional Conduct governing prosecutors. See Rule 407, SCACR. Importantly, a prosecutor is charged with the responsibility of being "a minister of justice and not simply that of an advocate .... [t]his responsibility carries with it specific obligations to see that the defendant is accorded procedural justice." Id., hist. n.
It is the rule of a prosecuting attorney, and those in government whose actions ultimately determine whether someone will be deprived of liberty or property, to:
avoid the role of a partisan, eager to convict ... [to] deal fairly with the accused as well as the other participants .... 509*509 to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.
State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
The United States Supreme Court in addressing the prosecutor's role provided a caution all government officials would do well to heed:
[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
Although this result will be of little assistance to Mr. Peake, perhaps State agency personnel will be constantly cognizant of the duty to, not only zealously fulfill their responsibility, but do so with equity and integrity.
TOAL, C.J., and WALLER, J., concur.
[1] S.C.Code Ann. §§ 48-1-10 to -350 (1986 and Supp.2001).
[2] Petitioner's current attorney did not participate in the negotiations.
[3] We note that Ms. Hunter-Shaw is not an attorney.
[4] We note this statute does not apply to petitioner's situation since, according to the indictment, the criminal charges arise out of the violation of a permit and a statute, rather than from a violation of a "final determination or order."
[1] This case brings to mind these insights concerning governments. In moments of content we are apt to invoke Henry Clay's words that "Government is a trust, and the officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people." John Bartlett, Henry Clay Speech at Ashland, KY, in March 1829, Familiar Quotations, (10th ed.1919), available at http://www.bartleby.com/100/ 348.2.html. Yet the facts of this case bring out the harsher inclination to exclaim "[t]he nine most terrifying words in the English language are, `I'm from the government and I'm here to help.'" James B. Simpson, "President Ronald W. Reagan Press Conference on Aug. 12, 1986," Simpson's Contemporary Quotations (1988), available at http://www.bartleby.com/63/56/356.html.
Supreme Court of South Carolina.
501*501 John David Hawkins, of Spartanburg, for Petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, and Special Assistant Attorney General Alexander G. Shissias, all of Columbia, for Respondent.
Justice PLEICONES:
The circuit court granted petitioner's motion to quash an indictment charging petitioner with violating the Pollution Control Act (the Act).[1] The State appealed, and the Court of Appeals reversed. State v. Peake, 345 S.C. 72, 545 S.E.2d 840 (Ct.App.2001). We granted certiorari, and affirm the decision reinstating the indictment.
Petitioner, a real estate developer, owned a private water treatment plant. The Department of Health and Environmental Control (DHEC) contacted petitioner in the summer of 1996 concerning the operation of this plant. In August 1996, petitioner and his attorney[2] met with DHEC representatives, including Ms. Hunter-Shaw,[3] in Columbia. As discussions 502*502 continued during 1996, DHEC suggested petitioner pay a substantial monetary penalty for violating the Act.
Also in 1996, unbeknownst to petitioner, Ms. Hunter-Shaw referred the case to a DHEC committee that reviews matters and determines whether to refer the violations to the Attorney General for possible criminal prosecution. Ms. Hunter-Shaw never mentioned the potential criminal liability to petitioner, and neither he nor his attorney ever inquired. Both petitioner and his attorney testified at the hearing on petitioner's motion to quash the indictment that they had "assumed" a settlement would cover "everything." Ms. Hunter-Shaw testified at that hearing that she never discussed the possibility of criminal charges with petitioner or his attorney because, "I didn't want to put that at jeopardy, and it wouldn't—it simply wouldn't have come up." It is undisputed that Ms. Hunter-Shaw never affirmatively represented that the settlement covered criminal charges as well as civil liability issues.
Eventually DHEC and petitioner settled the civil matter by having petitioner deed the waste treatment plant to the Town of Ninety Six. No monetary penalty was exacted. Shortly thereafter, petitioner was indicted for violating S.C.Code Ann. §§ 48-1-90(a) and 48-1-320 of the Act.
ISSUES
(1) Can DHEC settle criminal charges arising from alleged violations of the Act?
(2) Is "fundamental fairness" violated if the State is permitted to prosecute petitioner under the facts of this case?
Petitioner first contends that the State was forbidden to criminally prosecute him because of Ms. Hunter-Shaw's actions. He relies on several theories to support this contention, including estoppel, apparent authority, and actual authority, all premised on the alleged "special nature" of the Act. We agree with the Court of Appeals that the circuit court erred in granting petitioner's motion to quash the indictment.
The declared purpose of the Act is "to maintain reasonable standards of purity of the air and water resources of the 503*503 State...." S.C.Code Ann. § 48-1-20 (1986). Further, "to secure these purposes and the enforcement of these provisions of this chapter [DHEC] shall have authority to abate, control, and prevent pollution." Id. The Act contemplates that persons or entities that violate the Act may be subject to both civil and criminal liability. See S.C.Code Ann. §§ 48-1-300; 48-1-320; and 48-1-330. A civil violation can result in the imposition of a penalty while a criminal violation may result in a fine and/or imprisonment. Compare § 48-1-320 (criminal) with § 48-1-330 (civil). The most critical statute provides: § 48-1-210. Duties of Attorney General and solicitors.
The Attorney General shall be the legal advisor of the Department and shall upon request of the Department institute injunction proceedings or any other court action to accomplish the purpose of this chapter. In the prosecution of any criminal action by the Attorney General and in any proceeding before a grand jury in connection therewith the Attorney General may exercise all the powers and perform all the duties which the solicitor would otherwise be authorized or required to exercise or perform and in such a proceeding the solicitor shall exercise such powers and perform such duties as are requested of him by the Attorney General.
Petitioner contends this statute, read with the other provisions of the Act, vest prosecutorial authority in DHEC. Petitioner also relies on the fact that the attorney who would prosecute petitioner's criminal case is a DHEC employee, who has been appointed an acting Attorney General, rather than an Attorney General's employee. We disagree.
The first sentence of § 48-1-210 envisions that DHEC will be responsible for the administration and prosecution of civil matters and penalties, unless it requests the involvement of the Attorney General. See also S.C.Code Ann. § 48-1-50(7) (DHEC may "[s]ettle or comprise any action or cause of action for the recovery of a penalty or damages under this chapter..."); § 48-1-50(11) (DHEC may "[a]dminister penalties...."). On the other hand, the second sentence of § 48-1-210 provides unequivocally that the Attorney General, or the solicitor acting pursuant to the Attorney General's instructions, will bring any criminal charges.
504*504 We agree with the Court of Appeals that § 48-1-220 could be read to affect this distribution of authority. This one sentence statute provides: "Prosecutions for the violation of a final determination or order shall be instituted only by [DHEC] or as otherwise provided for in this chapter."[4] Petitioner would read this statute to grant DHEC the authority to determine whether to pursue a criminal prosecution, while acknowledging the Attorney General's sole authority to control the process once the decision to prosecute is made. We agree with the Court of Appeals that reading the statute in this way would cause it to run afoul of S.C. Const. art. V, § 24. This constitutional provision vests sole discretion to prosecute criminal matters in the hands of the Attorney General. In State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), this Court held that a statute purporting to require an executive agency to refer a case before a criminal violation could be prosecuted was violative of this provision. If § 48-1-220 were read to make DHEC the gatekeeper for criminal prosecutions arising under the Act, the statute would be unconstitutional.
The Court of Appeals properly construed § 48-1-220. It read the first clause of § 48-1-220 to give DHEC authority over civil prosecutions, and read the second clause, "or as otherwise provided for in this chapter," to refer to criminal prosecutions brought by the Attorney General pursuant to the second sentence of § 48-1-210. The decision whether to pursue criminal charges for an alleged violation of the Act is vested solely in the Attorney General. The corollary of this proposition is that the authority to grant immunity from criminal prosecution also resides exclusively in the Attorney General. Cf., Ex parte Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000) (prosecutor's discretion whether to try, to plea, or not to prosecute at all).
Further, the fact that the Attorney General has the authority to "deputize" an attorney employed by a state agency to act as an Attorney General for purposes of prosecuting a criminal case does not convert Ms. Hunter-Shaw or 505*505 DHEC itself into an Attorney General. As the Court of Appeals pointed out, the deputization here occurred after the civil settlement, and the DHEC attorney so deputized played no part in that settlement.
The Attorney General, not DHEC, determines whether to pursue criminal charges for a violation of the Act. To construe the Act in a manner that involves DHEC in the decision to initiate or pursue criminal charges would create a constitutional infirmity where none need exist. E.g., Curtis v. State, 345 S.C. 557, 549 S.E.2d 591 (2001) (statutes to be given a constitutional construction when possible).
Petitioner next argues that because he and his attorney "reasonably" assumed Ms. Hunter-Shaw to be settling both civil and criminal liability issues, she was possessed of either actual or apparent authority to do so. Alternatively, he contends that because of these reasonable beliefs, the State should be estopped to now pursue these criminal charges. The Court of Appeals consolidated these claims, and held that because Ms. Hunter-Shaw lacked actual authority to grant criminal immunity, the State could not be estopped. We agree. E.g., Heyward v. South Carolina Tax Comm'n, 240 S.C. 347, 352, 126 S.E.2d 15, 18 (1962) ("The question is not one of intention, but of power; and, if the officer has not power to act, his action is not state action, and so affords no basis upon which to predicate estoppel against the state").
The Court of Appeals properly held that the Act did not and could not authorize a DHEC employee to extend criminal immunity to petitioner.
Finally, petitioner argues that it is fundamentally unfair and a violation of his due process rights to allow the State to criminally prosecute him under these circumstances. He asserts a number of different bases for this proposition:
1) He was compelled to deed away his property with the false inducement that the whole matter would be resolved;
2) If and when he is tried, the fact that he deeded the plant makes him appear guilty; and
506*506 3) The same woman who falsely induced him to deed the property secretly reported him to the Attorney General for criminal prosecution.
It may well have been unfair of Ms. Hunter-Shaw not to reveal the fact that she had referred the matter for criminal consideration. We nevertheless do not find that her conduct rose to a level that would cause us to question the constitutionality of petitioner's criminal prosecution.
The decision of the Court of Appeals reversing the circuit court order quashing the indictment is
AFFIRMED.
MOORE, J., concurs. BURNETT, J., concurring in a separate opinion in which TOAL, C.J., and WALLER, J., concur.
JUSTICE BURNETT CONCURRING:
While I agree with this Court's ultimate legal conclusion, I write separately to address the conduct of DHEC in this matter for fear that it is emblematic of the agency and the manner in which it manages our State's citizens.[1]
To demonstrate the impropriety of DHEC's actions a fuller recitation of the facts is necessary. Mr. Peake and his attorney met with DHEC officials, including Ms. Hunter-Shaw, in August of 1996, to discuss the operation of the private water treatment plant. At that time, Ms. Hunter-Shaw suggested Mr. Peake deed the sewer system to the Town of Ninety Six. Mr. Peake, on the advice of his attorney, 507*507 initially declined to do so for two obvious reasons. First, deeding the sewer system would result in the loss of a $325,000 investment in the property. Second, Mr. Peake was concerned such a transfer could be considered as evidence of guilt in any subsequent criminal prosecution.
Ms. Hunter-Shaw did not inform Mr. Peake or his attorney that she had recommended investigation for possible criminal violations. At the time Ms. Hunter-Shaw sought to persuade Mr. Peake to deed the plant to the city, she began the process for Mr. Peake's subsequent indictment on criminal charges.
Despite several subsequent personal and telephone conferences, Ms. Hunter-Shaw never informed Mr. Peake's attorney that DHEC was recommending criminal prosecution because she "didn't think it was anything that he needed to know." Mr. Peake's attorney, now a Master-In-Equity in Spartanburg County, testified that he would not have advised his client to deed over the plant if the concern of criminal prosecution had not been resolved. Further, the attorney testified of his telephone conversations with Ms. Hunter-Shaw, which included repeated assurances that if Mr. Peake deeded the plant to the Town of Ninety Six then the "entire matter" would go away.
Of no solace to Mr. Peake is the observation that had the Attorney General's Office criminally charged him earlier than it had, or even if DHEC ever directly notified him they recommended he be criminally charged, this case would not have been resolved as it was. Mr. Peake under criminal indictment would be afforded substantial rights against what could only be deemed prosecutorial misconduct. In keeping the details of a criminal prosecution secret while maintaining the prospect of settlement which could "make the whole thing go away" DHEC sought to gain control of Mr. Peake's property while keeping alive the option of criminal prosecution.
To Mr. Peake the settlement offer by DHEC must be accepted to conclude civil and potential criminal proceedings. In exchange for surrendering the $325,000 investment in the property, Mr. Peake reasonably concluded the threats of prosecution by the State would be ended. Instead the "settlement" effected the surrender of the opportunity to obtain any return on his investment while still being held accountable for 508*508 possible criminal charges. The settlement was all the more troublesome because the act of surrendering the land could be viewed as an acknowledgement of guilt.
At best this case illustrates the problems which can occur when a governmental organization entrusts the enforcement of complicated statutes to those not trained to understand the import of telling a citizen "do this and all your trouble will go away."
At worst the facts here demonstrate a cultural environment at a State agency to abuse those the agency is entrusted to serve in order to obtain their idea of maximum results. It must be remembered, however, that government is not business and DHEC does not exist to defeat competitors. Instead, it is a State agency entrusted with the stewardship of the people's environment. This stewardship means they must not only zealously guard the environment, but must also be zealously on guard against a tendency to abuse its powers for what it considers to be the greater good.
Although the Attorney General retains prosecutorial authority, agency responsibilities must be completed with openness, candor and integrity. The matter was not something removed from Ms. Hunter-Shaw's control or on the periphery of her responsibilities. The decision to proceed criminally against Mr. Peake came directly from a referral by Ms. Hunter-Shaw. This calculated conduct may have allowed DHEC to effect transfer of the plant to a town and allow the State to seek a criminal indictment, but Mr. Peake was inequitably treated.
While Ms. Hunter-Shaw is not a prosecutor, she should be aware of the spirit and Rules of Professional Conduct governing prosecutors. See Rule 407, SCACR. Importantly, a prosecutor is charged with the responsibility of being "a minister of justice and not simply that of an advocate .... [t]his responsibility carries with it specific obligations to see that the defendant is accorded procedural justice." Id., hist. n.
It is the rule of a prosecuting attorney, and those in government whose actions ultimately determine whether someone will be deprived of liberty or property, to:
avoid the role of a partisan, eager to convict ... [to] deal fairly with the accused as well as the other participants .... 509*509 to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.
State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).
The United States Supreme Court in addressing the prosecutor's role provided a caution all government officials would do well to heed:
[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
Although this result will be of little assistance to Mr. Peake, perhaps State agency personnel will be constantly cognizant of the duty to, not only zealously fulfill their responsibility, but do so with equity and integrity.
TOAL, C.J., and WALLER, J., concur.
[1] S.C.Code Ann. §§ 48-1-10 to -350 (1986 and Supp.2001).
[2] Petitioner's current attorney did not participate in the negotiations.
[3] We note that Ms. Hunter-Shaw is not an attorney.
[4] We note this statute does not apply to petitioner's situation since, according to the indictment, the criminal charges arise out of the violation of a permit and a statute, rather than from a violation of a "final determination or order."
[1] This case brings to mind these insights concerning governments. In moments of content we are apt to invoke Henry Clay's words that "Government is a trust, and the officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people." John Bartlett, Henry Clay Speech at Ashland, KY, in March 1829, Familiar Quotations, (10th ed.1919), available at http://www.bartleby.com/100/ 348.2.html. Yet the facts of this case bring out the harsher inclination to exclaim "[t]he nine most terrifying words in the English language are, `I'm from the government and I'm here to help.'" James B. Simpson, "President Ronald W. Reagan Press Conference on Aug. 12, 1986," Simpson's Contemporary Quotations (1988), available at http://www.bartleby.com/63/56/356.html.
NOTE: RETHINKING THE PROFESSIONAL RESPONSIBILITIES OF FEDERAL AGENCY LAWYERS
115 Harv. L. Rev. 1170 (2002)
One of the most vexing problems in contemporary legal ethics is how to think about the professional responsibilities of government lawyers. The problem arises because of the tension between the government lawyer's public role and the private relationship basis of traditional conceptions of legal ethics. Traditional models of legal ethics are designed to constrain lawyer discretion in a specific role. In the classic case, there is one lawyer and one client; the lawyer is the client's agent and responsible for carrying out the client's instructions. The role of the government lawyer is quite different, however. First, there is no easily discernible client. Consequently, there is no one to provide the lawyer direction in those situations in which the traditional models require that the client exercise discretion. Second, traditional models of legal ethics assume a well-functioning adversary system as an important basis of their prescriptions. Much of the government lawyer's work, however is nonadversarial. Finally, the morally and politically neutral ideal of traditional models is poorly suited to government lawyers who, as public servants, are expected to benefit society through their work.
A different approach is therefore needed. One candidate is a model of lawyers' ethics derived from critical legal writing. Because the critical model assumes neither an adversary system nor a morally uncommitted lawyer, it avoids many of the contradictions of the traditional models. Further, the critical model's flexible approach to client interests and greater acceptance of lawyer discretion make it especially helpful in analyzing problems unique to the government lawyer.
The difficulties with current approaches to government lawyers' ethics and the possible applicability of the critical model are explored in this Note. Because of the wide range of lawyers' duties in various levels and types of government organizations, this discussion is focused on the role of the lawyer in a federal administrative agency. Although the analysis is centered on this type of lawyering, many of its conclusions will be applicable to lawyering in other government settings.
I. Conventional Approaches to Government Lawyers' Responsibilities
A. Traditional Models of Lawyers' Ethics
Before examining the standard approaches to government lawyers' ethics, it is helpful to review briefly the basis of mainstream legal ethics generally. Traditional models of legal ethics center on three interrelated duties: the duties of loyalty, zeal, and confidentiality.[1] The lawyer's duties are meant to ensure that the lawyer remains faithful to the client's interests and takes all permissible steps to further those interests.[2] These duties to the client are tempered by two separate duties: not to mislead the court and not to injure unduly the interests of third parties through advancement of the client's interests.[3]
There are two traditional models of lawyers' ethics. The first conception, which may be called the "dominant" model, focuses on the first three duties to create a model in which the basis of ethical lawyering is fidelity to the client.[4] This position informs the American Bar Association's Model Rules of Professional Conduct;[5] it also enjoys a great deal of support among academic commentators.[6] The prevailing concern of this model is that lawyers be constrained from using their power to dominate clients. The model begins from the libertarian premise that all client interests that are not illegal are legitimate, and that clients are entitled to legal representation to pursue those interests.[7] The model avers that if lawyers were allowed to evaluate clients' objectives, then lawyers would position themselves to be the unelected governors of large spheres of private behavior.[8]
Alongside the dominant model, traditional conceptions of lawyers' ethics also recognize what might be called the "public interest" model.[9] This model, although still adopting as central the duties of loyalty, zeal, and confidentiality, puts relatively greater emphasis on the duties of the lawyer to the court and to innocent third parties.[10] Advocates of the public interest model argue that untrammeled loyalty to the client's interests risks allowing lawyers to support manifest social injustice.[11] These commentators often note the disparate access to quality legal representation between wealthy individuals and corporations on one hand, and the great majority of middle and lower class individuals on the other.[12] Some commentators draw on moral philosophy to argue that certain types of action that would likely be sanctioned by the dominant model are inherently wrong in a just society.[13]
Although the emphases of the two models are distinct, they share several characteristics in their approach to legal ethics. First, both models start from the assumption that the client's interests are fully formed and fixed prior to the start of the lawyer's representation.[14] In the traditional models, the lawyer's role is morally and politically neutral toward the client's interests; the lawyer's only responsibility is to advance those predetermined interests within the equally predetermined bounds of the legal system.[15] The dominant model in particular is wary of lawyer participation in the formation of client interests because of its concern with paternalism.[16] Second, both models attempt to make predictable, categorical judgments about the ethical valence of certain actions.[17] Although both models recognize that some questions are closer than others, neither model is comfortable with the idea that actions taken by lawyers cannot be classified as either ethical or unethical. The dominant model makes these categorical judgments by tying legal ethics to the content of the Model Rules: if a certain action falls within the prohibitions of those rules, it is unethical; if it does not, it is ethical. The public interest model expands the sphere of unethical activity to include some actions not specifically proscribed by the Model Rules, but continues to make categorical judgments nonetheless. A third, closely related, similarity is that both models seek to establish transsubstantive ethical principles, ostensibly in an effort to provide predictability in application of the ethical codes.[18] A transsubstantive approach is thought to promote predictability because it prevents the determination of whether an action is ethical from turning on the unique factual circumstances of a given case.[19]
B. Conventional Approaches to Agency Lawyering
The two traditional models of legal ethics run roughly parallel to the two major approaches to government lawyers' ethics. The first approach, which can usefully be called the "agency loyalty" approach, basically follows the dominant model in that it sharply limits the realm in which the lawyer may permissibly attempt to exert influence over the client. According to this approach, the government lawyer's client is the agency that employs the lawyer, and the lawyer owes the traditional duties of loyalty, zeal, and confidentiality to the agency just as the lawyer would to a private client. The other principal approach, which will here be called the "public interest" approach, has a close relationship to the public interest model of lawyering. The public interest approach to government lawyering, however, goes further than the public interest model of private lawyering because it makes serving the public interest the government lawyer's primary duty and consequently values the interests of the lawyer's agency only to the extent that those interests coincide with the public interest.
1. The Agency Loyalty Approach. - Although traditionally there has been a strong sense among the profession and the public that the government lawyer owes special duties to the public,[20] recent commentary on the ethics of government lawyers has mostly advanced the agency loyalty approach to government lawyering.[21] This approach proceeds from the seemingly straightforward proposition that the government lawyer's employing agency is her client.[22] It then applies the same ethical constraints to government lawyers that are applied to lawyers in private practice. For example, according to this approach the government lawyer is duty-bound to press every nonfrivolous legal argument to support the agency's position, regardless of the possible injustice in any given situation.[23] Similarly, the government lawyer according to this approach owes a strict duty of confidentiality to the employing agency and violates this duty if she discloses information to the public or to other government bodies, such as Congress.[24]
The agency loyalty approach claims several benefits. First, it makes easier the application of the Model Rules to government lawyers.[25] By stipulating the agency as the client and treating it as an organizational client, like a corporation, the agency loyalty approach is able to treat government lawyers no differently from their colleagues in private practice. This benefit is not small; government lawyers are bound by the ethical codes in force in the jurisdictions in which they practice,[26] and consequently a clear theory of how those codes apply to government lawyers can eliminate a great deal of vagueness in the law. As a parallel, it is not surprising that when the Federal Bar Association promulgated its Model Rules of Professional Responsibility for Federal Lawyers it adopted the agency loyalty approach, albeit with some significant caveats.[27] Thus, to the extent that society values the type of categorical ethical framework provided by the Model Rules, the agency loyalty model supports those values.
A second asserted benefit of the agency loyalty approach is that it provides clear lines of accountability. In the pure form of this approach, responsibility for discretionary judgments rests solely with the agency's policymaking officials, and a government attorney may not reevaluate those decisions in the course of representation.[28] The agency loyalty approach constrains the government lawyer's discretion by making her actions always subject to review by agency officials. In this way, it limits the risks associated with "loose cannon" government attorneys who take their own view of the law without regard to the agency's policy preferences.
A third suggested benefit, closely related to the second, is that the agency loyalty approach promotes democratic accountability. By making the government attorney absolutely accountable to agency superiors, the agency loyalty approach ostensibly moves final authority for the lawyer's actions closer to politically appointed officials and, eventually, to the elected President.[29] Relatedly, some commentators argue that the agency loyalty model is also desirable because it is more likely to facilitate the implementation of executive policy.[30] The reasoning is that if government lawyers do not have discretion to make substantial decisions related to the agency's legal positions, then the executive's policy choices are more likely to be implemented directly.[31]
A closer look shows, however, that there is reason to doubt that the agency loyalty approach can deliver its promised benefits. The first benefit of the model - that it makes the application of the standard ethical codes to government lawyers easier - is real enough, but it begs the question of the usefulness of those codes in the context of government lawyering. The application of the Model Rules to specific problems in government lawyering is beyond the scope of this Note. However, it may be noted that the Model Rules offer little guidance to lawyers for organizational clients when the organization's interests diverge from those of its representatives and no guidance at all in situations that are unique to government lawyering.[32] Moreover, by emphasizing categorical ethical judgments, the Model Rules leave large areas of lawyers' discretion unregulated. To the extent that we are interested in a model of government lawyering that is useful in guiding the lawyer's actions on a daily basis and not just when a potentially sanctionable action is at issue, the easy applicability of the Model Rules is only a small boon.
Even the agency loyalty approach's supposedly greatest benefit - that it promotes democratic accountability - has serious shortcomings. First, it is far from obvious that even senior agency officials bear any real democratic accountability, especially when that accountability stems from a single election that in recent years has been won without the prevailing candidate receiving a majority of the popular vote.[33] Second, the proposition that administrative agencies should be focused on implementing presidential policy is not clearly indicated by the constitutional theory underlying the administrative state.[34] The notion that the agency loyalty approach provides clear lines of accountability suffers from similar misunderstandings of agency processes. The approach presupposes that there is some person with authority to state the agency's position. While this may be true in some instances, more often the determination of the agency's position will fall to a variety of mid-level bureaucrats - of which the lawyer will likely be one - who are forced to determine the agency's position from some combination of institutional practices and officially adopted policy statements.[35] Thus, it is not clear that shifting discretion from the lawyer to the agency will functionally put the discretion in different hands. This alleged benefit of the agency loyalty approach also presumes that agency decisions are made in a strictly hierarchical fashion. Again, while there is an element of truth in this characterization, it does not describe many instances of agency decisionmaking that are the product of a collaborative process between various agency actors.[36]
Upon examination, it seems that the only advantage the agency loyalty model has to offer is its ease of application. However, given that the approach appears to rely on misunderstandings of the internal functioning of agencies and contestable propositions about the role of agencies in government, one may justifiably be skeptical of whether the approach will offer as much ease in practice as it does in theory.
2. The Public Interest Approach to Government Lawyering. - In contrast to the agency loyalty approach, the public interest approach holds that the government lawyer owes a duty to the public interest or the common good apart from any duty the lawyer may owe to the agency. This approach has traditionally been taken by the legal profession and is the one most frequently endorsed in judicial opinions.[37] It is also consonant with the moral intuition that government lawyers owe additional duties to the public by virtue of their position as public servants.
The primary benefit of this approach is that it provides constraints on the government lawyer that may prevent abuses of the lawyer's position, even when those abuses are in the service of other agency objectives. Instead of making the government attorney solely accountable to the agency, the approach puts the lawyer's primary loyalty to the public at large. Consequently, the public interest approach gives the government attorney a great deal of discretion to make judgments related to legal representation.[38]
While most commentators agree that in a perfect world the government lawyer's actions would be aligned with public values, many of these commentators argue that "the public interest" is too indeterminate a concept to constrain the lawyer's discretion adequately. These commentators note that public values will always be contested in a democratic society and argue that conflicts between competing visions of the public good should not be resolved by unaccountable government lawyers.[39] For these commentators, ethical constraints on the government lawyer's conduct must be made more definite by grounding them in positive ethical prescriptions.
The criticisms of the public interest approach are fairly convincing when applied to a great deal of commentary advocating the approach. As the critics imply, much of this writing can be reduced to a general exhortation to government lawyers to be mindful of the justice of their actions. Obviously, to the extent that terms like "justice" or "the public interest" are left undefined, they do little to guide attorneys. Also, there are powerful political process arguments that agencies should not be at the mercy of their lawyers' idiosyncratic judgments about the public good.[40] It would potentially be quite difficult to implement a consistent and coherent agency policy if that policy were always subject to veto or modification by the agency's lawyers.
Recently, however, advocates of the public interest approach have made important advances by articulating a theory of the public interest that provides useful guidance for government attorneys. The best example of this new approach is Steven Berenson's Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?.[41] In this article, Berenson applies the work of William Simon to create a framework within which government lawyers can make discretionary judgments. The theory of this work is that certain public values are fairly inferable from traditional legal materials such as statutes, regulations, and court opinions.[42] Berenson argues that the notion of the public interest implicit in these materials provides the lawyer with sufficiently definitive standards to guide her judgment in making discretionary decisions.[43]
Berenson's work is a significant step forward for public interest theories. Still, it has important weaknesses. First, much like the agency loyalty approach, it focuses on the lawyer in isolation without adequately accounting for the fact that the government lawyer is but one actor in the agency decisionmaking process. A consequence of this focus is that Berenson's formulation leaves a great deal of authority for determining the public interest to the individual lawyer's interpretation of the relevant sources, thereby undercutting some of the participatory aspects of the administrative process. Moreover, it assumes, like the traditional model, that the legal background is fixed rather than subject to modification by the lawyer's work. Yet to the extent that the agency is pursuing a change in law or policy, a focus on existing sources of law may be inhibiting. Thus, although recent formulations of the public interest approach are improvements on earlier efforts, the approach, like the agency loyalty approach, still takes too little account of the lawyer's role within the agency decisionmaking process and the political values associated with that role.
II. The Role of the Federal Agency Lawyer
The above analysis shows that neither of the two traditional approaches to government lawyers' ethics provides a satisfying framework for approaching these questions. Before considering the problem further, it will be useful to develop an understanding of the lawyer's role within the agency and the differences between the role of the agency lawyer and the lawyer in private practice.
A. The Role of the Government Attorney
The role of attorneys in agencies is two-fold. First, government lawyers are the agencies' legal experts; they are responsible for providing the information and analysis necessary to understand the legal consequences of proposed courses of action.[44] Second, government lawyers are responsible for performing the legal work necessary to implement the agencies' policies. Because these duties are essential to the functioning of agencies, lawyers are integral to agencies' ability to carry out their missions successfully.
Agencies seek expert legal advice from their lawyers in numerous situations, including ascertaining the requirements of legislation, determining the legality of proposed actions, and evaluating possible avenues of enforcement.[45] If one presumes that agencies generally endeavor to comply with the law, the effect of the government lawyer's opinion in these situations can be significant. Consequently, the government lawyer's discretion in formulating opinions can ultimately make a genuine difference in the agency's policy choice. On one hand, this discretion could be seen as harmful because it effectively allows lawyers who have little direct accountability to the public to control partially the ability of agencies to act. To the extent one worries about this power of government attorneys, one might try to use ethical guidelines that require the government lawyer to resolve doubts in favor of the agency's policy position when drafting opinions.[46] On the other hand, because - at least in most cases - some resolutions of the question will be legally "better" than others, one might see lawyer independence in passing on the merits of various resolutions as a good thing. One might expect that the lawyer's independent judgment of which solution best comports with the relevant legal authorities will be more reliable than one dictated by non-lawyer policymakers.[47] Regardless of how one resolves this issue, it is clear that lawyers' expert opinions, no less than the opinions of other experts employed by the agency, will have an enormous impact on how the agency goes about the task of policymaking.
Government lawyers help to implement agency policy in two principal ways. First, government attorneys engage in those activities that are normally associated with private lawyering: drafting documents and litigating. In particular, agency attorneys (or their Department of Justice (DOJ) counterparts[48]) are responsible for prosecuting enforcement actions and defending against court challenges to agency policy.[49] Second, government attorneys play a vital role in facilitating public participation with the agency.[50] Administrative agencies derive their legitimacy in part from the active participation of the public in their decisionmaking processes.[51] The task of implementing the participation process often falls to agencies' attorneys.[52]
No less than in the advisory context, government lawyers exercise considerable discretion in implementing agency policy. Government lawyers will often prosecute routine actions with little direct supervision. Thus, those lawyers will have to make most of the decisions related to the litigation. Lawyers implementing participatory processes will often have a similar degree of leeway. For example, 553 of the Administrative Procedure Act requires agencies to receive public comment in the course of informal rulemaking.[53] The Act provides few specific requirements about how the agency will receive this comment, however.[54] Because agency lawyers are the only agency actors with genuine expertise in administrative procedure, agencies often give great discretion to the lawyers implementing those procedures.[55]
B. Government Lawyers Compared with Private Lawyers
Many of the aspects of the government lawyer's role described above coincide with the duties of private attorneys.[56] Private attorneys, much like government attorneys, are responsible for advising clients on the current state of the law, helping them to form legal positions, and then advancing those positions. Beyond this surface similarity, however, the government lawyer's role is considerably different from that of the private attorney. The most important difference is that, as part of the agency decisionmaking process, the government attorney is responsible for the positions the agency takes in a way that private lawyers are not. It is this - admittedly partial - responsibility for the agency's policy that gives rise to additional duties that private attorneys do not share.
A number of commentators have missed this aspect of the government lawyer's professional responsibilities because they have attempted to analyze the government attorney's responsibilities by trying to identify the government lawyer's client.[57] This effort misunderstands the role of the agency lawyer, however. First, there are a number of legitimate potential answers to the question - for example, the government generally, the agency, the President, the public interest - each of which describes a part of the government lawyer's role. Second, identity of the client is inherently indeterminate because it presumes that the lawyer and the agency occupy independent spheres when in fact the lawyer is part of the agency.[58] Of course it should be remembered that while the government lawyer is part of the agency, the government lawyer is not the agency. Thus, the lawyer does not bear full responsibility for the agency's final outcome; rather, the lawyer bears responsibility for faithfully fulfilling her role in the process.
A second and more fundamental difference is that because agency lawyers work on behalf of the government, actions taken by those lawyers must be legitimate in a democratic society. In other words, government lawyers' actions must comport with democratic values. The term "democratic values" is, of course, ambiguous. The term is not synonymous with the "public interest" or the "public good." These terms generally (although perhaps not inevitably) connote a single, transcendent outcome that would best serve community welfare without reference to democratically expressed preferences. "Democratic values," by contrast, connotes those aspects of agency decisionmaking that promote the agency's legitimacy in a democratic system of government. These democratic values include conformity with established law, public participation, and sensitivity to discernible public preferences; other items could doubtless be mentioned.[59] A fully elaborated discussion of this term is beyond the scope of this Note; however, the point should be stressed that democratic values do not entail a specific outcome, but rather a commitment to promoting the legitimacy of the administrative process.
The importance of democratic values for government lawyers' ethics is a consequence of the insight that government lawyers cannot be partisan advocates for any single position. Quite the opposite, government lawyers must pay heed to a range of parties and interests when undertaking any action. The government lawyer's primary goal should always be reconciliation - or at least accommodation - of as many interests as possible, rather than vindication of any single interest. Both the agency's policy position and abstract notions of the public good will have an important bearing on the lawyer's actions, but neither can demand the lawyer's unqualified allegiance.
These differences show that from a systemic point of view, government lawyers play a role that is substantially different from their private counterparts. Nonetheless, much of government lawyers' daily work resembles that done by private attorneys. Unfortunately, traditional analyses of legal ethics largely ignore the role of the lawyer in the legal system and instead focus on the client-lawyer relationship. Thus, conventional analyses of the responsibilities of government lawyers often overlook these important differences and consequently fail to establish helpful ways of analyzing government lawyer discretion.
III. The Critical Model
If the traditional approaches to the problem of government lawyers' professional responsibilities are unable to address adequately the ethical problems of government lawyers, then how should the problems be analyzed? One possibility is a third model of professional responsibility developed in the last twenty years by scholars, particularly William Simon, to apply the insights of critical legal studies to legal ethics.[60] Because this model is not premised on a binary client-lawyer relationship in an adversary system, it is particularly well suited to the complex role of government lawyers.
A. Critique of the Traditional Models of Legal Ethics
Central to the critical model is a rejection of the three shared premises of the dominant and public interest models: the fixed and preformed interests of the client; the desirability of categorical judgments; and the possibility of transsubstantive ethical principles. The central insight of the critical model is that the interests of participants in the legal system are both fluid and context-dependent. The model seeks to establish a framework in which the lawyer mediates these interests while retaining accountability.
The primary difference in the critical model's approach is the claim that, contrary to the supposition of the traditional models, clients do not come to the experience of representation with their interests and goals already well-formed and fixed. Rather, the critical model suggests that clients begin the experience of representation with a vague sense of their interests, and that those interests only become crystallized in the course of representation.[61] This understanding stems from the observation that a client's interests will depend in large part on the law, which the client will only come to know in the course of representation.[62] The critical model also posits that the client's interests will not remain fixed throughout the representation, but will evolve in response to the experience of representation.[63] The critical understanding of client interests can be illustrated with an example: many people consult lawyers because they are unsure whether they have incurred a legally cognizable injury. In the process of reinterpreting the client's experience in the language of the law and legal rights, the lawyer inevitably helps to shape the client's interests. Similarly, as the client's interests develop through the process of representation and the client receives new information in the form of legal advice and, perhaps, new factual information about the situation, it is likely that the client's interests will change.
The critical claim that client interests are fluid has an important bearing on legal ethics because it means that the lawyer will inevitably exert an influence on the client's goals. In other words, the critical model asserts that the traditional model's wholesale condemnation of all lawyer influence as paternalism is misguided because influence is inevitable.[64] It argues that a client whose interests are inchoate does not suffer a loss of autonomy when the lawyer intervenes to clarify those interests; instead, such intervention provides beneficial support by assisting the client to understand and develop her goals.[65] In a sense the critical model puts to the fore the lawyer's role as counselor, a role the Model Rules have downplayed.
It is important to note that while the critical model rejects the traditional approach to paternalism, it does not sanction coercion. No less than the traditional model, the critical model rejects the notion that the lawyer should be free to substitute her judgment for that of the client.[66] Rather, the critical model is simply more tolerant of lawyers' attempts to influence the client, perhaps by introducing considerations that might not be relevant to the representation narrowly defined.[67] In the private context, the lawyer's goal in the critical model is to create a non-hierarchical relationship with the client in which the power differential inherent in the client-lawyer relationship is neutralized and the client becomes capable of holding the lawyer accountable.[68] As will be further elaborated below, this approach can be applied to the government context by replacing the ideal of non-hierarchical community with the ideal of promoting democratic values. In this formulation, the government lawyer strives to ensure that the lawyer and the lawyer's agency are accountable to the public.
The critical model also challenges the traditional model's emphasis on categorical judgments. As noted above, the traditional model - in either its dominant or public interest forms - attempts to divide the universe of lawyer activity into ethical and unethical, and to sort actions into these categories.[69] By contrast, the critical model argues that the ethical valence of a given action may have both ethical and unethical aspects, which must be balanced when deciding how to proceed.[70] In other words, the critical model applies the principle, familiar in other legal contexts, of multiple causation.[71] A given action may have significantly different ethical values depending on the perspective from which it is viewed, and the critical model sees this multiplicity of values as inevitable.[72] Unlike the traditional model, however, the critical model does not attempt to solve the problem of multiple values by assigning a duty always to privilege the client's perspective or the public's perspective. Rather, the critical model suggests that, because the client's interests are fluid, those interests are subject to alteration by the presence of other ethical perspectives.[73]
Closely related to the critique of categorical judgments is the critique of transsubstantive judgments. Just as the critical model argues that the ethical valence of a given action cannot be neatly sorted into two categories because of the presence of competing ethical perspectives, it also avers that the ethical quality of a given action cannot be determined ex ante because that quality will depend on the context in which the act is taken.[74] Thus, the same action, for example disclosing some piece of information about the client to an opposing side, may be ethical in one context but not ethical in another.[75] This criticism is also obliquely related to the idea that the client's interests are fluid; because the client's interests are always subject to change, the lawyer cannot judge the quality of a given action in relation to the client's interests until those interests are determined in reference to a given factual situation. As noted above, the traditional model seeks to make transsubstantive judgments as a way of making the application of legal rules more predictable, thereby encouraging fidelity to those rules.[76] The critical model asserts that such judgments are impossible, and that by attempting to impose them the traditional model privileges the positive content of the Model Rules over other considerations that might bear on the ethical quality of a given action.[77]
Taken together, these three critiques of the traditional model suggest an approach to lawyers' ethics that is willing to make highly contextual judgments. Although this approach sacrifices a degree of predictability in order to achieve greater flexibility, it need not surrender to ad hoc or idiosyncratic judgments. It merely argues that the set of considerations at stake in deciding ethical questions is larger and more varied than the traditional model allows.[78] Consequently, the judgments themselves become more complex and contestable. Yet the critical model asserts that if the positivistic reliance on the Model Rules is taken as the baseline for ethical judgments, then the judgments produced by the critical model are no more arbitrary than those produced by the Model Rules.[79]
B. Critical Government Lawyering
In Part II it was suggested that the government lawyer is an integral actor in the agency's decisionmaking process. As such, the government lawyer is always in a position to influence the agency's policy choices. Because the critical model recognizes that lawyers will always influence client interests, the critical model is particularly suitable for thinking about the responsibilities of government lawyers.
1. Critical Analysis of Traditional Approaches to Government Lawyering. - The critical model allows us to describe the deficiencies in the traditional approaches to government lawyering in another way. Conventional analyses of the problem of government lawyer discretion create unnecessarily stark ethical tradeoffs by posing the issue in terms of a false dilemma. For proponents of the traditional approaches, the choice is whether, in cases of conflict, the agency's position or the lawyer's position will prevail. The dilemma is false because it presumes that the agency comes to the situation with a preformed position that is potentially in conflict with the lawyer's. But agencies' interests, no less than those of individual clients in the private sphere, are not already formed and crystallized at the outset of representation. The inchoate nature of the agency's interests prior to the lawyer's involvement is to be all the more expected because of the integral role government lawyers play in assisting the agency to form its position.
The influence of this notion of stark conflict is particularly evident in the agency loyalty model. Because adherents of that model almost universally reject the possibility of an identifiable public interest outside of the lawyer's idiosyncratic views, they generally argue that any position taken by the lawyer other than the agency's can only be ascribed to the lawyer's personal prejudices. The critical model, however, suggests that because the lawyer has a role to play in helping the agency to develop its interests, the position ultimately adopted is the agency's, despite the fact that it may be substantially influenced by the views of the lawyer. Moreover, recent work by supporters of the public interest approach convincingly shows that when the lawyer acts to influence agency decisionmaking, legal standards exist to guide the lawyer's actions.[80] Thus, the claim that such influence is born solely of the lawyer's idiosyncratic views is overstated.
The existence of this conflict in the public interest approach is more complex, but is present nonetheless. In essence, the public interest approach posits that there is a fixed "public interest" against which agency action should be judged. When the lawyer identifies a conflict between the agency's proposed action and the public interest, the lawyer is duty bound to act in accordance with the public interest. Thus, the conflict is no less stark; the public interest approach merely suggests that the conflict will be between the agency and the public interest rather than between the agency and the lawyer. Again, the critical model rejects this conflict because it rejects the idea that the public interest is predetermined.[81] Proponents of the agency loyalty model are correct insofar as they argue that the "public interest" is a contestable idea. In the critical view, however, the government lawyer draws on the numerous sources from which the public interest can be extrapolated to help the agency define its position in light of those values. In other words, the public interest becomes defined at the same time the agency's position becomes defined.[82]
At first blush, enforcement actions present a somewhat different scenario. In these cases the lawyer appears to be advocating for the agency's position. Thus there seems to be no reason why this position could not be fixed prior to the lawyer's activities. As detailed above, the critical model casts serious doubt on whether preformed client interests are possible as a theoretical matter. In any case, it is doubtful as a practical matter that an agency will ever have a preformed position on a specific enforcement action. Enforcement actions range from the routine to the extraordinary. For an action to be of exceptional importance, it will almost certainly have to present some unique policy issue that justifies the attention of an agency's top officials. In this case, the very importance of the issue suggests that the agency will either not have a preformed position or will be closely reevaluating its position, and the government lawyer will play the same integral role that she plays in assisting the agency to make any other policy. In the case of a routine enforcement action, the agency will at best have general policy statements on how the lawyer should prosecute the action. In applying these policy statements to the specific situation, the government attorney will have to use judgment to determine how the general statements apply.
Thus there is always still the opportunity for government lawyers to exercise discretion. And the presence of this discretion means that the lawyer cannot avoid making judgments that will have policy consequences. Moreover, even if it were possible for the lawyer adhere to the amoral ideal of the dominant model and act merely as the instrument of the agency's policy choices, such a system would only shift responsibility for the discretion to another agency actor, who may or may not have greater public accountability than the lawyer. Yet the critical model suggests that agency lawyers have a well-defined role to fulfill in exercising this discretion, and that successful execution of this role will comport both with agency loyalty and with notions of the public interest.
2. Critical Approaches to Government Lawyering. - From the critique of the traditional approaches, it is possible to develop a model of government lawyer responsibility that better fits the role lawyers play within agencies. The touchstone of this approach is that the government lawyer's primary responsibility is to help the agency develop its position in a way that is consistent with democratic values. Thus, the critical approach differs from the traditional approaches because, in the critical approach, the government lawyer does not act ethically by simply complying with a supposedly fixed and preformed interest, be it that of the agency or that of the public good. Instead, the lawyer's concern when presented with an ethical question is to use her discretion to further the agency's democratic legitimacy.
In fulfilling her duties under the critical approach, the government lawyer must work in a dialogue with other members of her agency. As part of this dialogue, the lawyer must determine at the outset of her work the agency's provisional objectives on a given issue. The lawyer must then independently evaluate those objectives from her perspective as the agency's legal expert. The lawyer's evaluation will necessarily include determining whether the proposed objectives are legal within established understandings of the law. The lawyer's evaluation should not stop there, however. The lawyer should also consider whether the objectives are consistent with the underlying purposes of the law; whether they comport with executive and congressional policy; whether they can be justified in terms of commonly accepted values; and whether they treat the affected parties justly. The lawyer's evaluation, though independent, should not be solitary. To achieve the goal of developing the agency's position with reference to the public interest, the lawyer must communicate with other members of the agency and with relevant members of the public. The lawyer must do so always bearing in mind that the lawyer's role is not to pass judgment on the agency's objectives, but to help the agency understand and realize [83] those objectives.
When the lawyer has completed her evaluation, she communicates her analysis to the agency and seeks revision if warranted. After the agency responds, the lawyer may begin the evaluation process again. This dialogue can be repeated until the lawyer and the agency agree that the agency has come to the best position in light of all relevant factors or until no time remains for further revision. Although the process is described sequentially, it will actually occur as more of a continuous dialogue. The continuity of the process stems from the fact that the lawyer conducts her evaluation by facilitating discussion within the agency and between the agency and the public. The lawyer's continued independence is crucial, however, because it helps to ensure that favored perspectives do not become privileged in the process of crystallizing the agency's position.
It is difficult to describe how this approach to government lawyering will operate in practice because application of the model will be highly context-dependent. Nonetheless, it may be helpful to illustrate the approach with a few examples. In the case of activities over which the lawyer has almost complete control - such as the prosecution of routine enforcement actions - the lawyer also bears the greatest responsibility for independently evaluating the government's position. For example, in an action to discontinue Social Security benefits the government lawyer will start with whatever policy statements the Social Security Administration has on bringing such actions. During the course of her investigation, the lawyer will determine how the policy statements apply to the case and develop any further positions in a way that is consistent with the facts of the case, agency policy, law, and other relevant considerations. Throughout the action, the government attorney must continually reevaluate the position taken at the outset to determine whether it is still in conformity with all relevant factors. If the lawyer determines that the initial position is no longer supportable, she must make appropriate alterations.
The duty to play a continuous role in shaping agency interests also extends to the government lawyer's role as facilitator of participatory processes. To help the agency develop its position, the government lawyer must make sure that all relevant perspectives are brought to bear on the question. This duty means that the government lawyer should not simply implement any standard participation plans, but should analyze the situation critically and determine which segments of the public most need to provide input and how that input should be provided. In discharging this duty, the government lawyer should exercise independent judgment. Consequently, if other actors within the agency attempt to exclude segments of the public that the lawyer feels are central to developing an accurate picture of the situation, the government lawyer should insist on the inclusion of those perspectives. If necessary, the lawyer should take action by contacting the relevant groups directly.
The hardest questions arise when the government lawyer feels that the agency is acting in bad faith and is not responding to her attempts to shift the agency's position. In these cases, the critical model suggests that the correct response is to publicize the attorney's discontent with the agency's action in an effort to create public awareness. Thus, in the critical model the government attorney is not a "loose cannon" with a commission to ensure agency fidelity to public values. The lawyer is, however, a whistleblower who alerts other entities who have a legitimate claim to authority over the agency - for example Congress, the courts, and the public - to the perceived problem.[84] At this point, the ball is in these actors' court and it is their responsibility to discipline the agency. If they choose not to act, then the lawyer can only comply with the agency's course of action or refuse to participate and accept whatever sanctions the agency may legally impose.
A famous example of actions consistent with the critical model is the actions of the Solicitor General's office in the Bob Jones University tax case.[85] In that case, the Internal Revenue Service under the Nixon administration had denied Bob Jones University a 501(c)(3) tax exemption on the ground that the University engaged in racially discriminatory practices.[86] While the case was in the courts, President Reagan was elected and the political leadership of DOJ changed.[87] The new Administration determined that the United States would no longer support the IRS's action and would instead argue that Bob Jones University was entitled to the tax exemption.[88] Acting Solicitor General Lawrence Wallace, a career government attorney, was instructed to file a brief to this effect in the Supreme Court. After Wallace was unsuccessful in convincing the Administration that this position was the wrong one to take, he complied with his instructions, but included a statement indicating that the brief did not reflect the views of the Acting Solicitor General.[89] Although a relatively small act, the statement was conspicuous because of its unusualness and because of the unique role of the Solicitor General in the Supreme Court. Ultimately, the Court rejected the Administration's position.[90]
Adherents of the agency loyalty approach would likely consider Wallace's action an abuse of discretion. By contrast, advocates of the public interest view might fault Wallace for ultimately conceding to the agency's position. In the critical view, however, this action struck the right balance because it highlighted, when the other approaches would have downplayed, significant disagreement within the agency, thereby providing an opportunity for other branches of government to resolve the conflict.
This resolution seems contradictory if one views the lawyer merely as a partisan advocate. However, if one understands the lawyer's duty as assisting the agency to develop its position fully, then the lawyer's duty can only be fulfilled by ensuring that all perspectives are heard, even if the agency would rather not hear them. With the possible exception of national security issues, such actions by the government lawyer are fully consistent with values of democratic accountability and transparent government. To the extent that an agency is seeking to implement policy by avoiding public input, those preferences need not be respected.[91] Moreover, authorizing the lawyer to take independent action to inform concerned constituencies may actually save social resources because it will lessen the need for protracted litigation or congressional oversight after the action has been taken.
Thus, the critical model of agency lawyering can be summarized as one in which the lawyer attempts actively to influence the agency's position by fulfilling the government lawyer's dual roles as legal expert and facilitator of public participation. Because the critical model does not, at least in most instances, encourage the agency attorney to take independent action that might not comport with general agency preferences, it does not raise concerns about lawyers taking idiosyncratic action that might frustrate agency programs. At the same time, because it does not rely on the agency to control the ethical action of the lawyer, it allows for consideration of the effects of the agency's actions on the public. Thus, the lawyer is not held accountable by an easy measure of fidelity to some independent interest; rather, the lawyer is accountable to the idea of developing the agency's interests.
IV. Conclusion
Traditional approaches to the responsibilities of government lawyers have failed to provide a robust framework for analyzing the question of how government lawyers should exercise their discretion. To a large extent, this failure is a result of an attempt to apply a model of legal ethics that is ill-suited to the unique role of government attorneys. The critical model, by contrast, has the potential to break the impasse created by traditional models. Because the critical model is concerned primarily with guiding lawyer discretion, rather than constraining it, the model escapes many of the seemingly irreconcilable conflicts posed by traditional approaches and offers greater insight into the situation of government attorneys.
Application of the critical model to government lawyers offers several potential benefits. It reconciles the need for agency lawyer accountability with the strong moral intuition that government lawyers should bear some responsibility for considering public values in carrying out their duties. By specifying that the incorporation of public values into the government lawyer's duties takes place in the context of the lawyer's responsibility to shape the agency's position, the critical approach has the further benefit of potentially making agencies themselves - not just their lawyers - more responsive to public values. Further, by insisting on an independent role for lawyers to evaluate both the legality of agency action and the means by which public participation is sought, a critical approach to government lawyering may have the added benefit of providing an internal check on agency discretion to complement the external checks of judicial review and congressional oversight. Because this check operates before the agency has reached a final decision, it is also likely to be a more efficient means of ensuring that the agency complies with its congressionally sanctioned mandate.
The primary deficiency of the critical model is that it does not provide the government lawyer with definitive rules to guide her conduct. However, a large part of the government lawyer's expertise can be characterized as the ability to make difficult judgments with reference to law and democratic values. Thus, to the extent that discretion in agency lawyering is inescapable, the critical model places that discretion with the actor in the best position to exercise it. In addition, because the critical model does not encourage the lawyer to "go it alone" but rather to pursue her vision of the best course of action within the agency decisionmaking process, the lawyer's discretion is constrained by the need to convince others of the correctness of her view. Moreover, despite its absence of rules, the critical model does provide considerations that, if taken seriously, will narrow the range of the government lawyer's discretion.
The exercise of discretion by government officials - including government lawyers - is necessary for a responsive and effective government. Approaches to government lawyers' ethics that try to deny or displace that discretion can therefore never adequately address the difficult questions of these lawyers' responsibilities. The very nature of discretion requires an approach that is able to consider context and to balance competing considerations. The critical model is such an approach. By contrast, it is the very contingency necessary to a consideration of ethics in a discretionary environment that traditional approaches have tried to avoid. Nevertheless, to the extent that one is interested in developing roles for government lawyers that support good government, rather than simple compliance with abstract ethical codes, one would do well to consider the critical model.
1 Paul R. Tremblay, The New Casuistry, 12 Geo. J. Legal Ethics 489, 504-05 (1999).
2 Monroe Freedman, Understanding Lawyers’ Ethics 71-73 (1990).
3 Id. at 73-82.
4 The term “dominant” comes from William Simon’s discussion of the principal models of lawyers’ ethics. William H. Simon, The Practice of Justice 7 (1998).
5 See Model Rules of Prof’l Conduct pmbl. (1986); see also Simon, supra note 4, at 8.
6 See generally Freedman, supra note 2; Geoffrey C. Hazard, Jr., Ethics in the Practice of Law (1978); Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613.
7 See Freedman, supra note 2, at 57.
8 Pepper, supra note 6, at 617-18.
9 The term “public interest” also comes from Simon. Simon, supra note 4, at 8.
10 Id.
11 See generally David Luban, Lawyers and Justice (1986).
12 See, e.g., id. at 306-10.
13 See, e.g., id. at 31-49.
14 For a fuller description of the traditional models’ stance regarding client interests, see William H. Simon, Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469, 470-78 (1984).
15 Id. at 469. In thinking about the applicability of these models to government lawyers, it is important to note that one of these predetermined features is the adversary system.
16 See id. at 474-75.
17 Simon, supra note 4, at 9. Categorical judgments refer to the models’ penchant for either/or ethical distinctions.
18 Id. In this context, transsubstantive means that a given action has the same ethical valence regardless of the factual context in which the action is taken.
19 Id.; see also A Gathering of Legal Scholars To Discuss Professional Responsibility and the Model Rules of Professional Conduct, 35 U. Miami L. Rev. 639, 652-55 (1981) (presenting various views on whether it would be appropriate to find different ethical results in different factual situations).
20 See, e.g., Freeport-McMoRan Oil & Gas Co. v. Fed. Energy Regulatory Comm’n, 962 F.2d 45, 47 (D.C. Cir. 1992).
21 See, e.g., Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64 S. Cal. L. Rev. 951, 1012-17 (1991); Jonathan R. Macey & Geoffrey P. Miller, Reflections on Professional Responsibility in a Regulatory State, 63 Geo. Wash. L. Rev. 1105, 1116 (1995).
22 The most complete exposition of the “agency as client” approach can be found in Lanctot, supra note 21, especially at 975-1012.
23 Id.
24 E.g., Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. Chi. L. Rev. 1293, 1294-95 (1987); Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits, Law & Contemp. Probs., Winter 1998, at 83, 85-86.
25 E.g., Lanctot, supra note 21, at 971-73.
26 The McDade Amendment makes government attorneys “subject to State laws and rules and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties.” 28 U.S.C. 530B(a) (Supp. IV 1998).
27 See Fed. Bar Ass’n, Model Rules of Prof’l Conduct for Fed. Lawyers (1990). Although Federal Bar Association Model Rule 1.13 states “a Government lawyer represents [her] Federal Agency,” id. R. 1.13, the comment to the rule notes “the conclusion that the government lawyer’s client is the lawyer’s employing agency does not answer every ethical question.” Id. R. 1.13 cmt. The comment continues “for example, the Government lawyer has a responsibility to question the conduct of agency officials more extensively than a lawyer for a private organization would in similar circumstances.” Id.
28 See, e.g., sources cited supra note 21.
29 See Lanctot, supra note 21, at 1015; Macey & Miller, supra note 21, at 1116. Most adherents of the agency loyalty approach offer increased democratic accountability as the model’s primary benefit. See, e.g., Miller, supra note 24, at 1296-97.
30 E.g., Miller, supra note 24, at 1296-97.
31 Id.
32 For example, a number of commentators have addressed the difficulties of applying Rule 1.13, which governs the representation of organizational clients. These difficulties are only exacerbated when the lawyer acts as an advisor or counselor, rather than as an advocate, as is often the case in the government context. See, e.g., Ann Southworth, Collective Representation for the Disadvantaged: Variations in Problems of Accountability, 67 Fordham L. Rev. 2449, 2452-55 (1999). It is a common lament that the Model Rules offer little guidance to the government attorney. E.g., Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B.C. L. Rev. 789, 798-99 (2000); Lanctot, supra note 21, at 971-73.
33 In none of the most recent three presidential elections did the winning candidate garner a majority of the popular vote. See Nat’l Archives & Records Admin., U.S. Electoral College Electoral Results, http://www.nara.gov/fedreg/elctcoll/ (last visited Jan. 13, 2002).
That the winners of these elections did not receive a majority of the popular vote does not mean that they have no democratic accountability. It does, however, weaken the claim of some commentators, see, e.g., Miller, supra note 24, at 1298, that the executive acts in furtherance of an electorally sanctioned mandate.
34 The debate over this question is one of the most hotly contested in administrative law. For a thoughtful analysis, including substantial historical exegesis, see generally Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994).
35 See, e.g., Thomas W. Merrill, High-Level, “Tenured” Lawyers, Law & Contemp. Probs., Spring 1998, at 82, 84-85.
36 See Thomas O. McGarity, The Role of Government Attorneys in Regulatory Agency Rulemaking, Law & Contemp. Probs., Winter 1998, at 19, 20-21.
37 E.g., Berger v. United States, 295 U.S. 78, 85 (1935).
38 See, e.g., Berenson, supra note 32, at 831-32; Jack B. Weinstein & Gay A. Crosthwait, Some Reflections on Conflicts Between Government Attorneys and Clients, 1 Touro L. Rev. 1, 25-27 (1985).
39 E.g., Lanctot, supra note 21, at 1013-15; Miller, supra note 24, at 1295.
40 E.g., Macey & Miller, supra note 21, at 1116-20.
41 Berenson, supra note 32; see also Bruce A. Green, Must Government Lawyers “Seek Justice” in Civil Litigation, 9 Widener J. Pub. L. 235 (2000) (arguing that the same considerations that guide criminal prosecutorial discretion can guide government lawyers in civil contexts).
42 Berenson, supra note 32, at 817-21; see also William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988).
43 Berenson, supra note 32, at 817-21.
44 Michael Herz, The Attorney Particular: Governmental Role of the Agency General Counsel, in Government Lawyers 143, 147-50 (Cornell W. Clayton ed., 1995).
45 Id.
46 E.g., Lanctot, supra note 21, at 1013-14.
47 E.g., Berenson, supra note 32, at 822.
48 In the federal government, DOJ generally is the only agency authorized to litigate in court. In most cases, a DOJ attorney will litigate a case on behalf of the agency in question with input and assistance from the agency’s in-house lawyers. Although this arrangement creates a number of difficult questions, see generally James R. Harvey III, Note, Loyalty in Government Litigation: Department of Justice Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569 (1996), those questions do not bear directly on the analysis presented here, and DOJ attorneys will be treated no differently from other agency lawyers in this Note.
49 Id. at 1573-74.
50 Herz, supra note 44, at 146.
51 For a thorough analysis of public participation in agency decisionmaking, see Dennis Thompson, Bureaucracy and Democracy, in Democratic Theory and Practice 235, 237-50 (Graeme Duncan ed., 1983).
52 McGarity, supra note 36, at 24-26.
53 5 U.S.C. 553 (2000).
54 See id.
55 McGarity, supra note 36, at 30.
56 Discussions of the role of private attorneys in this Note are based on the role assumed by the dominant model. Many commentators question this definition of the private lawyer’s role. See generally Susan Sturm, From Gladiators to Problem-Solvers: Connecting Conversations about Women, the Academy, and the Legal Profession, 4 Duke J. Gender L. & Pol’y 119 (1997).
57 See, e.g., Geoffrey C. Hazard, Jr., Conflicts of Interest in Representation of Public Agencies in Civil Matters, 9 Widener J. Pub. L. 211, 219-22 (2000); William Josephson & Russell Pearce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict?, 29 How. L.J. 539, 539-41 (1986) ; Lanctot, supra note 21, at 967; Harvey, supra note 48, at 1570.
58 The Preamble to the Model Rules seems to recognize this point when it states that in the case of the government lawyer many of the decisions normally made by the client will be made by the lawyer instead. Model Rules of Prof’l Conduct pmbl. (1986).
59 On theories of the legitimacy of the administrative state, see generally Christopher F. Edley, Jr., Administrative Law 13-71 (1990).
60 Simon first developed the model in two articles: The Ideology of Advocacy, 1978 Wis. L. Rev. 29, and Visions of Practice in Legal Thought, supra note 14. Subsequent scholarly work has applied the model in particular settings. See, e.g., Shauna Marshall, Mission Impossible?: Ethical Community Lawyering, 7 Clinical L. Rev. 147 (2000) (applying aspects of the model to poverty law practice). Additionally, other scholars have provided parallel critiques without addressing the critical model per se. See, e.g., Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients To Speak, 16 N.Y.U. Rev. L. & Soc. Change 535 (1987-88) (arguing that litigation should focus on education and organizing as well as classroom success). Because Simon’s work remains the only comprehensive systematic elaboration of the model, the description of the model in this Note is drawn primarily from his writings.
61 Simon, supra note 14, at 485.
62 Id. at 488-89.
63 Id.
64 Id. at 484.
65 Id. at 488-89.
66 Id.
67 Id.
68 Id.
69 Supra p. 1172.
70 Simon, supra note 4, at 139-56.
71 Cf., e.g., Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460-61 (1897) (discussing the phenomena of multiple causes in the context of tort law). Multiple causation, in this context, means that there are a variety of factors and effects that contribute to the ethical quality of an action. How these effects are organized and prioritized will determine whether the action is seen as ethical or unethical.
72 Simon, supra note 4, at 144.
73 Simon, supra note 14, at 497-98.
74 Simon, supra note 4, at 35-37.
75 Id.
76 See supra p. 1172.
77 Simon, supra note 4, at 43-44.
78 See id. at 195-97.
79 See id.
80 See supra pp. 1177-78.
81 Note that the critical approach’s rejection of transsubstantive judgments, see supra p. 1185, also applies here. Because the critical model suggests that ethical values are context-dependent, the content and application of the public interest will necessarily vary according to the situation.
82 The suggestion that the public interest is a contingent value to be defined in the process of agency decisionmaking may seem odd to those who view the public interest as a fixed and discoverable concept. However, as many commentators have noted, the definition of the public interest will always be in dispute. Given this fact, “the public interest” as defined in the critical model refers to the provisional resolution of the competing claims on the public good arrived at through accepted government processes. That the government declares some action to be in the public interest is not sufficient to legitimate that claim, however. The legitimacy of any declaration of the public interest is directly related to the legitimacy of the process by which it is reached. Thus, by attending to democratic values and procedural legitimacy, the government lawyer serves the public interest by contributing to the legitimacy of the agency’s action.
83 The use of the term “realize” is purposeful because it simultaneously conveys an act of discovery, of bringing into being, and of achievement, all of which are goals of the government lawyer in the critical model.
84 Federal law sanctions this role for the government lawyer by providing protection from adverse employment consequences for lawyers who call attention to agency misconduct. See Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 U.S.C.); see also Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 Geo. J. Legal Ethics 291 (1991) (analyzing the application of the act to government attorneys).
85 Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
86 Philip B. Heymann & Lance Liebman, The Social Responsibilities of Lawyers 139 (1988).
87 Id. at 139-40.
88 Id. at 147-49.
89 Id. at 181.
90 Id.
91 Not only does the general need for agency legitimacy suggest that efforts on the agency’s part to evade public scrutiny are illegitimate, but Congress has also chosen to protect those agency employees who bring such action to light. See supra note 84.
GOVERNMENT LAWYERS AND CONFIDENTIALITY NORMS
5KATHLEEN CLARK
7INTRODUCTION
9Alberto Mora served as General Counsel of the Department of the Navy from 2001 to 2005. Mora was concerned about the government’s treatment of prisoners at Guantanamo Bay. He had led an internal Defense Department effort to ensure that the government would begin to treat those prisoners humanely. But he had met powerful opposition-including Secretary of Defense Donald Rumsfeld and Defense Department General Counsel William Haynes-who wanted the government to have a free hand to treat the Guantanamo Bay prisoners more harshly during interrogations. Mora fought an internal, bureaucratic battle on this issue, marshalling allies from within the uniformed services, but he never revealed to anyone outside the government this internal struggle over prisoner treatment. Eventually, after the Abu Ghraib scandal, he wrote a lengthy memorandum to the Navy Inspector General describing how he and Judge Advocate General lawyers argued for humane treatment, and how Haynes and other Defense Department officials responded. [1]
10Mora left the Defense Department in December of 2005 and was approached by a journalist, Jane Mayer of the New Yorker, who had obtained a copy of his memorandum. Mayer wanted to speak with Mora to better understand the policy battle that had taken place within the Defense Department. Mora agreed to speak with her, and Mayer wrote about the internal Defense Department battle and profiled Mora in the New Yorker. [2]
12When asked why he agreed to speak with a journalist about this issue after remaining publicly silent for so long, Mora noted that his memorandum to the Inspector General was unclassified, and thus the government had deemed that release of the information could not cause damage to national security. Someone had provided Mayer with a copy of the memorandum, and so Mora thought that he could legitimately amplify and give her additional background on the memorandum. When asked whether his duty of confidentiality as a lawyer prevented him from revealing further information, Mora responded that because Mayer already had some information, it seemed that the duty of confidentiality had been waived. [3]
13A lawyer’s duty of confidentiality is not subject to the kind of waiver that Alberto Mora posited. A client’s revelation of some information about a topic does not give her lawyer the option of revealing additional information about that same topic. [4] In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers. [5] Thus, government lawyers appear to be bound by the same broad confidentiality obligation as lawyers for private sector clients. [6]
15This broad confidentiality obligation would seem to prohibit a former government lawyer like Mora from giving any information about his work. Although there are exceptions to this duty of confidentiality (the professional confidentiality rule identifies eight in particular [7]), it is not clear that any of these exceptions would permit Mora’s disclosure. [8]
16Was Mora permitted to discuss these internal Defense Department debates about prisoner treatment? This Article is an attempt to answer that question for Mora and for the more than 100,000 federal, state, and local government lawyers who need to determine which information they can ethically reveal. [9]
17Surprisingly little has been written on the question of government-lawyer confidentiality. [10] A spate of law review articles and student notes about the government’s attorney-client privilege were published after the high-profile legal battle on this issue between Independent Counsel Kenneth Starr and President Bill Clinton. [11] But outside the context of Freedom of Information requests, the issue of attorney-client privilege arises relatively rarely for government lawyers. On the other hand, government lawyers face the confidentiality issue every day when they decide which information they can share with friends and colleagues both inside and outside of government.
19This Article makes several significant contributions to the literature on government lawyers. First, it provides a theoretical basis for identifying the client of a government lawyer. There is no single answer to the question of client identity for government lawyers. Instead, one must examine the structure of authority within government to identify which of several possible entities is actually the client.
21Second, the Article explains how government and private sector lawyers’ confidentiality duties differ even though the ethics rules do not differentiate between them. Government lawyers’ confidentiality duties are not based solely on the broad mandate of confidentiality found in the legal ethics rules, but also on the complex regime for control of government information. While lawyers are normally bound by a broad duty of confidentiality (applying to all “information relating to representation”) under the legal ethics rules, a client can consent to disclosure of otherwise confidential information.[12] One of the insights of this Article is that government clients have consented to large amounts of disclosure by their lawyers through enactment of open government laws.
23In other words, to determine whether the client of a government lawyer has consented to a specific disclosure, the lawyer need not rely solely on a particular government official’s ad hoc decision about whether to consent. Instead, that official is bound to respect the legal regime controlling government information. If that legal regime requires that information be disclosed, then the institutional client has consented to its disclosure. If that legal regime prohibits the information from being disclosed, then the institutional client has withheld consent to disclosure.
25The third significant contribution of this Article is that it identifies for the first time the need to revise the confidentiality rule to clarify that government lawyers have the discretion to disclose government wrongdoing. Examination of case law and statutes suggests a norm that governments—unlike private sector clients—do not have a legitimate interest in keeping secret information about their own wrongdoing. Other scholars have not previously recognized that the implication of this norm is that government lawyers may be able to disclose government wrongdoing.
27Part I of this Article outlines the lawyer’s confidentiality obligation, which is both strict and broad. One of the exceptions to that obligation, however, is that clients can consent to disclosure. Thus, Part II examines in some depth the identity of the government lawyer’s client, and concludes that no single definition of a client applies to all government lawyers. Instead, one must examine the structure of authority within the particular government context where the lawyer works. Only with such a contextualized and structural analysis can one properly identify the government lawyer’s client and the extent of the lawyer’s authority to make decisions on behalf of that client. In addition, Part II notes that certain government lawyers are authorized to make decisions that are normally in the hands of clients.
29Part III explains the specific ways in which government lawyers’ confidentiality obligations differ from those of private sector lawyers. First, policy concerns and specific whistleblowing protection laws suggest that government lawyers may disclose government wrongdoing. Second, as a substantive matter, government lawyers must be permitted to disclose information that is subject to mandatory disclosure under open government laws. Since this could result in a chaotic situation with each government lawyer applying her own conception of open government laws, this Article recommends that governments adopt a set of procedures that lawyers can use to get approval of such disclosures. To that end, Part III sets out the substantive standard for the government lawyer’s confidentiality obligation. Part IV recommends the adoption of specific procedures so that government lawyers can make these disclosures in an orderly fashion, providing their clients with advance notice and protecting legitimate government interests.
31I. SECRECY AND TRANSPARENCY IN LAWYER-CLIENT RELATIONS AND IN GOVERNMENT
33In the early 1970s, Mark Felt, a law school graduate and licensed lawyer, was the Associate Director of the Federal Bureau of Investigation (FBI). On several occasions, Felt had provided information to Bob Woodward, an acquaintance of his who was a reporter for the Washington Post. When Woodward was assigned to cover the Watergate break-in in June 1972 he asked for Felt’s assistance, and Felt provided it. As the number two official at the FBI, Felt had “full responsibility for the day-to-day Watergate investigation.”[13] Felt surreptitiously provided Woodward with leads and confirmed information that Woodward learned from other sources.[14] In the book chronicling the Watergate investigation, Woodward referred to Felt as “Deep Throat” and credited this source with a critical role in the Post’s investigation.[15] While there was much speculation about the identity of this anonymous source, Woodward indicated he would not reveal Deep Throat’s identity until after the source died. But in 2005, Felt came out as Deep Throat in a Vanity Fair profile written by a Felt family friend, and Felt later published a revised memoir acknowledging his role in the Watergate investigation.[16] Felt’s memoir asserts that he was motivated by a desire to protect the FBI from interference by the White House.[17] Frustrated that the White House had prevented the FBI from fully investigating the ties between the Watergate burglars and the Nixon White House, Felt used Woodward to instigate public and congressional pressure for a more thorough investigation.[18]
35When Felt leaked information about the FBI’s investigation to Bob Woodward, he was apparently trying to protect the FBI’s institutional interest in its independence from the White House.[19] Yet by providing information to Woodward, he violated the FBI’s own rules for protection of confidential information. If Felt had been acting as a lawyer rather than as an administrator, would this leak have violated his professional duty of confidentiality?[20] If Felt’s role as Deep Throat had been revealed while his law license was current, could he have been disciplined for revealing this information to Woodward, or was he legally justified in making these disclosures?[21] To understand the legal status of any government lawyer’s disclosure, one must consider two distinct legal regimes: that which applies to all lawyers and that which applies to all government employees. This Article explains how these two legal regimes intersect. In the lawyer-client setting, there is an overriding expectation of confidentiality, with only limited exceptions to confidentiality. In the government setting, by contrast, there is an expectation of transparency, with important but limited exceptions to that transparency. This part of the Article examines the theoretical underpinnings for confidentiality and transparency in the lawyer-client and government settings, respectively.
37A. Secrecy in Lawyer-Client Relationships
39The secrecy of lawyer-client information is protected by two distinct legal doctrines that are sometimes conflated: the lawyer’s confidentiality duty and the attorney-client privilege. The lawyer’s confidentiality duty prevents a lawyer from voluntarily disclosing a client’s information.[22] Under the professional rules, lawyers owe clients a confidentiality obligation that is both strict and broad. Most states require lawyers to keep confidential all “information relating to representation” unless a client consents to disclosure or unless another specific exception applies.[23] The confidentiality obligation applies not just to information that the client has told the lawyer in confidence, but to all other factual information that the lawyer learns in connection with the representation.[24] The confidentiality duty continues even after the representation has ended.[25] Lawyers who violate the duty of confidentiality can be disciplined by bar authorities or held liable to their clients for breach of fiduciary duty.[26]
41The principle underlying the confidentiality duty is the lawyer’s status as a fiduciary and the client’s status as a beneficiary. The client entrusts the lawyer with information so that the lawyer can provide a service to the client. The information belongs to the client, and it would be misappropriation for a lawyer to disclose or use the information, just as it would be misappropriation for a lawyer to use a client’s financial asset for the lawyer’s benefit.
43A lawyer’s confidentiality duty is subject to several exceptions, and these exceptions reflect a policy judgment that a client’s interest in confidentiality may give way to a societal interest (such as the prevention of crime, fraud, bodily harm, and death27) or even the lawyer’s interest (such as the lawyer’s need to obtain legal advice or defend herself).[28] Two other exceptions actually further client interests. First, a lawyer may reveal otherwise confidential information if the client gives informed consent.[29] This consent exception recognizes that clients have autonomy and can consent to conduct that would otherwise constitute a violation of fiduciary duty if done without consent. Second, a lawyer representing an entity client may under certain circumstances disclose otherwise confidential information in order to protect the entity from a disloyal employee.[30] If an entity’s lawyer learns that an entity employee has engaged in serious wrongdoing that could harm the entity or that could be attributed to it, the lawyer is required to refer the matter to a higher authority within the entity and ensure that the entity adequately addresses the issue.[31] If the higher authority fails to adequately address the issue, then the lawyer may reveal the information outside the entity in order to prevent substantial injury to the entity.[32] This exception recognizes that entity clients sometimes need to be protected from their agents and that outside disclosure may be necessary to effect that protection.
45The attorney-client privilege, by contrast, is an evidentiary privilege. In court and other official proceedings, the state can compel individuals and entities to provide information unless a privilege prevents such mandatory disclosure. The attorney-client privilege prevents the state from requiring the disclosure of certain communications between a lawyer and client regarding legal representation. The privilege is narrow in scope and covers only those communications between a lawyer and client that were made in confidence and for the purposes of providing or obtaining legal advice.[33] If the client reveals the contents of the lawyer-client communication to anyone, then the client waives the privilege.[34]
The principle underlying the attorney-client privilege is the recognition that the public interest in the availability of evidence sometimes must give way to the countervailing interest of individuals and entities in obtaining legal advice to guide their actions. The privilege is based on two assumptions: first, that a lawyer can adequately advise a client only if the client provides complete information about the circumstances relevant to the legal issue, and second, that a client will communicate that information only if assured that the communication is protected by the attorney-client privilege.[35]
The confidentiality duty is robust. Even if a client recounts to a third party the client’s conversation with his lawyer, the lawyer must still keep that information confidential. The attorney-client privilege, by contrast, is easily lost through waiver. If the client has shared the information with a third party, then the client can no longer claim the protection of the privilege to prevent mandatory disclosure in a state proceeding.
49The professional rules seem to require lawyers to keep client information confidential in perpetuity.[36] Some commentators have argued for a “historical interest” exception to confidentiality that would allow disclosure long after the representation has ended.[37] At present there is no formal recognition of a “historical interest” exception to lawyer confidentiality.
51In the government setting, by contrast, one can find support for the idea that the government’s interest in confidentiality diminishes after time. In Attorney-General v. Jonathan Cape Ltd., a British court was asked to enjoin publication of a former cabinet minister’s memoir because it revealed confidential cabinet deliberations.[38] The court acknowledged that cabinet discussions are confidential in character, but noted that there was no single rule regarding how long such discussions must be kept confidential and observed that different types of information require different lengths of confidentiality.[39] The court explained that at some point the government’s interest in the confidentiality of these discussions would lapse, but noted the difficulty in determining exactly when that would occur.[40] The court ruled that it should enjoin publication only if the continuing confidentiality of the material could be clearly demonstrated and concluded that this was not that case.[41]
53In the national security field there is a presumption that confidential national security-related information can be released ten years after its creation, unless the sensitivity of the information requires that automatic declassification occur in twenty-five years.[42] One also finds some support for the concept of diminishing confidentiality over time with respect to the secrecy of criminal investigations. Courts have noted that the need for secrecy may end when the investigation ends.[43] On occasion, courts have noted that some government interests in secrecy diminish over time,[44] and have ruled that the historical significance of particular events combined with “the long passage of time”-measured in decades-may justify disclosure of secret grand jury proceedings.[45]
55B. Secrecy and Transparency in Government
57While the overriding norm regarding lawyer-client information is secrecy unless there is a good reason for disclosure, the overriding norm regarding government information in the modern era is disclosure unless there is a good reason for secrecy. One finds this principle not in the U.S. Constitution, but in constitutive statutes that determine how governments will operate. The federal open government laws include the Freedom of Information Act (FOIA),[46] Privacy Act of 1974,[47] Government in the Sunshine Act,[48] Federal Advisory Committee Act,[49] and the Presidential Records Act of 1978.[50] These statutes establish a baseline of providing the public with access to government information, both in terms of government documents and government meetings. Under the FOIA, executive-branch agencies are required to publish their rules, regulations, and policies; final opinions made in the adjudication of cases; and information about how the agencies are organized.[51] The statute makes all other government documents public upon request, unless there is a good reason for the government to keep the document secret.[52] The FOIA sets out nine specific exceptions to this mandated disclosure upon request.[53] When someone seeks disclosure of government information, there is a presumption that the information will be made available. Where the government refuses to disclose it, the burden is on the government to justify the refusal.[54] This presumption in favor of disclosure is consistent with principles of robust democratic government.
59Our government is based on the premise that the government is of, for, and by the people.[55] But if the people do not have access to information about what the government is doing, then this premise is little more than an empty promise.[56] One can find a constitutional basis for the right to know only indirectly in the U.S. Constitution.[57] The First Amendment prohibits the government from restricting the freedom of press, but does not directly give the press access to government information. On the other hand, the First Amendment does ensure that government employees may speak about their work unless there is a compelling reason to restrict their speech.[58]
61C. Harmonizing the Lawyer-Client Secrecy Norm with the Governmental Openness Norm
63Returning to the story that began this section, how would one evaluate Mark Felt’s disclosure of the details of the FBI’s Watergate investigation if Felt had been acting as a lawyer? This analysis requires several counterfactual assumptions. First, one must identify Felt’s client. Felt believed that his primary loyalty was to the FBI.[59] When the White House attempted to thwart the FBI’s Watergate investigation, Felt was severely limited in what he could do through official government channels. The FBI could investigate the connections between the Watergate burglars and other activities of the Nixon reelection campaign only with the permission of the Justice Department, which was under the control of the White House. So Felt went outside of official government channels and used his leaks of information to Woodward to spur congressional and public pressure for a more complete investigation of the Watergate-White House ties.
65Applying today’s legal ethics standards to this situation, could Felt legally justify his disclosures to Woodward? The exception that comes closest is the entity exception to confidentiality.[60] While Felt had primary loyalty to the FBI, it would be more accurate to identify his putative client as the executive branch of the federal government.[61] Under the current ethics rule for entity clients, if Felt knew that executive-branch officials had engaged in “a violation of law that reasonably might be imputed to” the executive branch and that was “likely to result in substantial injury to” the branch, then he had an obligation to “refer the matter to higher authority.” [62] In this situation, higher authority would be the Director of the FBI, the Attorney General, and the President. There is no indication that Felt ever confronted any of these officials over the alleged transgressions. So even under the current more lax confidentiality rules now in place, Felt would not be able to legally justify his leaking this information to Woodward.
67II. IDENTIFYING THE CLIENT OF A GOVERNMENT LAWYER
69In 2000, Cindy Ossias was a lawyer in the California Insurance Department, where she investigated California insurance companies. Ossias had investigated the companies’ practices in settling cases arising out of the 1994 Northridge earthquake, concluded that the companies had violated state law, and recommended that the companies be fined. Instead, California Insurance Commissioner Chuck Quackenbush, the head of the Insurance Department and an elected official, authorized secret settlements under which the companies would donate to private foundations formed by Quackenbush. When Ossias learned of these secret settlements, she believed they were improper and disclosed them to state legislators who were investigating the Insurance Department. When Quackenbush discovered that Ossias had disclosed this information to the legislators, he placed her on administrative leave, and state bar authorities investigated whether Ossias had violated her professional duty of confidentiality.[63] Ossias argued that her disclosure was authorized by state whistleblower protection laws, and bar authorities ultimately decided not to discipline her.[64] The state bar proposed a rule allowing government lawyers to disclose government misconduct, but the state supreme court rejected the proposed rule.[65] The California legislature passed legislation that would have clarified that a government lawyer does not violate confidentiality by disclosing government wrongdoing, but the Governor vetoed the legislation.[66]
71To whom did Ossias owe a duty of confidentiality? Was it to the California Insurance Department, or its head, Chuck Quackenbush? The government of California? The people of California?
73A. A Wide Range of Possible Clients
75Government officials, courts, and commentators have identified a wide variety of possible clients that the government lawyer might represent.[67] One can find some support for the following as clients: the “public interest,”[68] the public at large,[69] the entire government,[70] the branch of government employing the lawyer,[71] the particular agency employing the lawyer,[72] and a particular government official (such as the head of a government organization) in his official or individual capacity.[73]
77In some situations a government lawyer is assigned to defend an individual government employee rather than represent a government entity. Such is routinely the case for Judge Advocate General military defense lawyers, who take on a traditional lawyer-client relationship with their individual clients.[74] Justice Department lawyers representing government officials who have been sued in their individual capacity face a more complex situation. Federal government lawyers represent individual government officials only if the Attorney General has determined that it is “in the interest of the United States” to provide such representation.[75] Under Justice Department regulations, the government lawyer’s confidentiality duty toward her individual client is more limited than in a traditional lawyer-client relationship. The lawyer must keep confidential only that information that is covered by the attorney-client privilege.[76] Any nonprivileged information need not be held confidential, and Justice Department attorneys have been required to disclose information adverse to their individual client where the lawyer learned it from a source other than a client communication.[77]
79In most situations, the government lawyer represents a government entity rather than an individual government employee.[78] While the professional rules provide guidance for entity representation,[79] they generally leave open the key question for government lawyers: which government entity does the lawyer represent?[80]
81The identity of the client has important implications for lawyer confidentiality. If a government lawyer represents “the people,” then presumably she could disclose information to anyone who is one of “the people.”[81] If a government lawyer represents an agency, then the entity exception to confidentiality will apply,[82] but if she is representing the agency head, then it will not.[83] If a Justice Department lawyer represents the entire government, then she can reveal information to a member of Congress, but if she represents the executive branch, she cannot. If a state natural resources department lawyer represents her agency, then she cannot reveal information about wrongdoing at the department to anyone outside of the department, including the state attorney general.[84] If a lawyer in the California Insurance Department (such as Cindy Ossias) represents the entire government of California, then she can reveal information to state legislators. But if she represents only the Insurance Department, then she cannot—unless an exception to confidentiality applies.
83Writing years before the American Bar Association adopted its Model Rules of Professional Conduct-including its rule specifically dealing with entity clients-Robert Lawry argued that client identity was the wrong question for government lawyers to ask.[85] Lawry correctly noted that identifying the client does not end the inquiry regarding a government lawyer’s confidentiality duty.[86] But client identity is an appropriate starting point for an inquiry about confidentiality. Correctly identifying the government lawyer’s client will help the lawyer determine the set of individuals to whom she can reveal information.
85Some have attempted to provide a universal answer to the question of the identity of the government lawyer’s client. Politicians often claim that the government lawyer’s client is “the public,”[87] and a few commentators assert that government lawyers should pursue “the public interest.”[88] But these formulations fail to identify who can give direction to the lawyer on behalf of the client.[89] Some assert that the government lawyer represents the government as a whole,[90] but Geoffrey Miller persuasively rebuts that notion as it pertains to a government with separated powers.[91] Miller notes that lawyers in the executive branch do not generally represent Congress or the judiciary.[92] Many assert that the client is the particular agency that employs the lawyer,[93] but this approach is singularly inappropriate for the hundreds of Justice Department lawyers who represent other government agencies and departments in court.
87There are problems with each of these formulations. Given the wide variety of roles that government lawyers play, it is no wonder that a universal definition of the government lawyer’s client evades us. The next section develops an alternative approach. It identifies the government lawyer’s client by examining the specific context in which the government lawyer works, paying particular attention to the structure of government authority.
89B. Client Identity Depends on Context and Structure of Governmental Power
91While there is no universal answer to the question of identifying a government lawyer’s client, one can determine a particular government lawyer’s client by examining the particular context and the precise structure of governmental authority.[94] This section describes the process for identifying a government lawyer’s client and gives examples of that analysis. It does not purport to provide a comprehensive list of clients for all government lawyers. Instead, it explains how one can identify a particular lawyer’s client and provides some examples of this method.
93To determine the identity of the client, one must examine the range of possible clients of the government lawyer and consider the relationships among those putative clients. Is one of those entities subordinate to another or do they act independently? One must then consider the relationship between the lawyer and those entities. A few concrete examples will show how complex and contextual the issue of client identity can be in the government context.[95]
95The issue of client identity often comes up in cases involving claims of attorney-client privilege or conflicts of interest. For example, an attorney-client privilege case arose when a federal grand jury subpoenaed the minutes from the Detroit City Council’s closed sessions. The Detroit corporation counsel had attended those sessions and the federal prosecutor argued that the corporation counsel represented only the executive arm of city government, not the Detroit City Council.[96] Under this theory, the presence of corporation counsel would waive the City Council’s attorney-client privilege. The Sixth Circuit closely examined the particular legal context of these closed sessions, which dealt with condemnation proceedings. The Detroit city government is normally bifurcated, with the corporation counsel representing the city administration rather than the City Council. But in condemnation proceedings, the City Council actually instructs the corporation counsel whether to proceed. So, the City Council was able to assert attorney-client privilege for its meetings with corporation counsel.[97]
97The Sixth Circuit used a similar structural, contextual approach to come to a different conclusion in a case involving Murfreesboro, Tennessee city council members, the city manager, and a lawyer for the city.[98] The issue was again application of the attorney-client privilege. The court found that the city-council members were investigating an executive decision and had interests adverse to those of the city manager. Thus, the city council members were not clients of the city attorney and the city could not assert attorney client privilege because the meeting with the lawyer occurred with non-clients (i.e., city council members) present.[99]
99In a California case, the issue was a possible conflict of interest by a county counsel who had given legal advice to the county’s civil service commission.[100] The court ruled that ordinarily a county counsel’s client is the entire county rather than a constituent agency of the county, even when the lawyer is giving specific legal advice to such an agency. But the court identified an exception to this general rule where the agency has the authority to act independently of the county.[101] In this particular case the court found that the civil service commission had independent authority because when the county opposed a commission decision, the county had to take the commission to court rather than simply overrule it.[102] Since the county counsel had given legal advice to a commission with independent authority, the commission itself was a distinct client of the county counsel.[103]
101In another conflicts of interest case, employees of the Rhode Island Department of Children, Youth and Families sued the department for alleged civil rights violations.[104] The employees’ lawyer also did legal work for two Rhode Island state boards, and the state’s attorney general argued that representation of the employees constituted an improper conflict of interest. The issue was whether the lawyer represented just the two specific state boards, or instead represented the entire state government. The court noted that governmental agencies sometimes oppose each other in litigation, and thus the agency, rather than the government as a whole, is the client.[105] It examined Rhode Island’s restrictions on its employees and found that state employees are prohibited from serving as lawyers for a party suing the particular agency where they are employed.[106] By contrast, federal law prohibits executive branch employees from serving as lawyers for a party suing the executive branch.[107] Thus, the court found that the clients of this lawyer were the particular boards he represented, rather than the entire state government.
103While this kind of structural analysis is the most satisfying way to identify a government lawyer’s client, not all courts that have decided the issue of client identity use the structural approach. In a case involving the possible disqualification of a private law firm that arguably represented the State of New York but was now representing a tobacco company being sued by the state, the court concluded that the firm represented only specific agencies rather than the state as a whole, analogizing in a rather strained fashion to the situation of a firm that represents an association’s members but not the entire association.[108] In a case involving a county’s claim of attorney-client privilege for communications between the county attorney and a county employee, where those communications had also been shared with “the county personnel office, the county auditor’s office, and the county judge’s office,” a Texas state court found that those other offices constituted third parties outside the lawyer-client relationship, thus waiving the attorney-client privilege.[109] But the court failed to consider whether those offices were all part of the county attorney’s client.[110]
105The identity of the client is determined by examining the structure of authority within the government. Applying this structural analysis to the federal government’s executive branch, client identity depends on one’s theory about the structure of executive-branch authority. Proponents of the unitary-executive view have asserted that all executive-branch lawyers have as their client the entire executive branch, with the President ultimately responsible for defining client interests.[111] But this unitary-executive view is not universally held. Some commentators note that individual departments have some independent authority based on congressional enactments, even though the President can put political pressure on a department secretary, or even fire the secretary.[112] These commentators would likely conclude that the client of a department lawyer is the department itself rather than the entire executive branch.[113] For many of the lawyers employed by independent agencies, such as the Securities and Exchange Commission (SEC) or the Federal Communications Commission, their client is the agency itself.[114] Such an agency is even more insulated from presidential control and thus can take positions that will dissatisfy the President. An SEC lawyer who disagrees with an agency decision can appeal that decision up to the Commission itself, but not beyond the Commission. A Justice Department lawyer who is defending a lawsuit against the Agriculture Department may in common parlance refer to that department as her client. But by statute the Justice Department controls the litigation and is concerned with the effect of any rulings on the rest of the executive branch.[115] Even if the Secretary of Agriculture would prefer a particular position, the Attorney General can overrule that position if he deems it in the interest of the executive branch. So it would be more accurate to say that the client of the Justice Department lawyer is the entire executive branch.[116] Federal prosecutors have as their clients the executive branch, and they have significant independence in how they go about their duties.[117]
107Most congressional lawyers have as their clients individual legislators, while a few represent entities within the legislative branch.[118] The former work either on the personal office staff or the committee staff of a particular member of the House of Representatives or Senate. They owe duties of loyalty and confidentiality to the individual legislator. Similarly, lawyers in the Office of the Legislative Counsel have transitory lawyer-client relationships with the individual legislators to whom they give legal advice on the drafting of legislation.[119] By contrast, there are a few lawyers on Capitol Hill whose clients are legislative entities rather than individual legislators. For example, the Senate Legal Counsel represents the Senate as an institution, regularly defending the Senate in lawsuits and pursuing subpoena enforcement actions in connection with Senate Committee investigations.[120]
109In the judicial branch, although judges are lawyers, they do not act in a representative capacity and therefore do not have any clients. Judicial clerks give legal advice to the judges for whom they work, so one might classify the judge as the clerk’s client. But many judicial clerks are not yet licensed as lawyers when they begin their clerkships. So it is unclear that judicial clerks are lawyers at all, let alone whether their judges are their clients.[121] For example, Edward Lazarus clerked for Justice Blackmun during the 1988-89 Term and ten years later published a book that critiqued the Supreme Court’s handling of certain highly charged cases.[122] Lazarus’s book was met with a chorus of criticism.[123] Lazarus was accused of violating the confidentiality inherent in the clerk-Justice relationship and of violating the confidentiality provision in the Supreme Court’s rules for clerks.[124] But there was little discussion of whether he violated the confidentiality rule for lawyers.[125]
111With regard to local governments, normally the client is the local government itself rather than the local officials who run the government.[126] One would need to look closely at the structure of the particular local government to determine whether the client is the entire local government, the local legislature, the local government’s executive branch, or some other subset of the government.
113C. Some Government Lawyers Have Authority to Make Decisions That Are Normally in the Hands of the Client
115The previous section showed how complicated it can be to determine the identity of a particular government lawyer’s client. This section addresses two related issues: the fact that the lawyer-client relationship in government is sometimes—but not always—fundamentally different from the lawyer-client relationship in the private sector and the fact that some government lawyers may, and indeed should, consider the public interest in making decisions about the representation.[127]
1171. “Runaway” Lawyers128
119Some government lawyers have a traditional lawyer-client relationship with their government client. The client decides on the objectives of the representation and the lawyer pursues those objectives.[129] Other government lawyers serve both as the lawyer and essentially as a trustee, entrusted to make decisions that clients normally make.[130] The professional rules require a lawyer to abide by a client’s decision on whether to settle a case or whether to appeal an adverse decision.[131] Yet some government lawyers routinely decide whether to litigate or settle cases on behalf of their clients.[132] Prosecutors decide themselves whether to seek indictments and whether to allow plea agreements and cannot allow other officials in the government to make these decisions.[133] In addition, many state attorneys general have this client-like authority in civil cases. For example, in a case where the South Carolina Attorney General was representing the state tax commission, the Attorney General was permitted to settle a tax dispute even though two of the three members of the commission objected to the settlement.[134] In Massachusetts, after the Attorney General unsuccessfully defended the civil service commission in a sex discrimination lawsuit, the commission voted not to appeal the decision. But the Attorney General took the appeal anyway against the wishes of his client.[135] The Massachusetts Supreme Court found that the Attorney General’s “relationship with the State officers he represents . . . is not constrained by the parameters of the traditional attorney-client relationship.”[136] In another case, the Massachusetts Attorney General refused to appeal an adverse judgment even though the state officer being sued wanted to appeal.[137]
121At the federal level, Congress has set out by statute that the Department of Justice controls most litigation decisions.[138] Justice Department lawyers represent executive-branch agencies in court, but it is the Justice Department—not the agencies—that decides whether to bring litigation and whether to settle it.[139] The Solicitor General “is not bound by the views of his ‘clients.’ He may confess error when he believes they are in error. . . . He may refuse to approve their requests to petition the Court for writs of certiorari.”[140]
123As part of the Congressional Accountability Act of 1995, Congress made itself subject to employment discrimination laws and set up a mechanism allowing congressional employees to seek redress despite the Constitution’s Speech or Debate Clause immunity.[141] When a Senate employee alleges discrimination, he can file suit against the office where he was employed (rather than against the particular senator or the Senate itself). The Senate Chief Counsel for Employment represents the defendant office, and any monetary judgment is paid out of general Senate coffers rather than a particular senator’s allotment.[142] Under this arrangement, Senate employees can obtain compensation for wrongful discrimination, but individual senators are not subject to liability. The Senate as an institution has determined that it has an interest in assuring that its employees are able to seek compensation for discrimination, while individual Senate offices presumably have an interest in avoiding any finding of wrongful discrimination. The Senate Chief Counsel for Employment apparently takes direction from the particular offices that she represents and has vigorously defended offices accused of discrimination, repeatedly arguing for broad immunity under the Constitution’s Speech or Debate Clause.[143] This situation finally came to a head in a discrimination case when the senator whose office the plaintiff was suing retired before the case had been adjudicated.[144] The Senate Chief Counsel for Employment argued for broad speech or debate immunity,[145] while the Senate itself filed an amicus brief disclaiming immunity applied in the case.[146] Perhaps even more remarkable, the Senate Chief Counsel for Employment argued that her client, the Office of Senator Dayton, no longer existed and that the case was moot because the senator’s term had expired and he had not sought a new term.[147] But if her client no longer existed, one wonders from whom she was taking direction in the case. Congress needs to clarify whether the Senate itself—rather than a particular senator whose office is being sued—controls the defense of these lawsuits, just as the Senate itself is ultimately responsible for any monetary judgment.[148] Under the current arrangement, the Senate Chief Counsel for Employment appears to be untethered to any client and has made arguments that undermine the institutional interests of the Senate.[149]
125At the state level, the situations vary considerably. Many states allocate to a state attorney general decisions on whether to bring and settle lawsuits.[150] The Illinois Attorney General, for example, has the authority to “direct the legal affairs of the State and its agencies.”[151] In such a situation, the relationship between the state attorney general and the agency is not “precisely akin” to that between a private sector lawyer and client.[152] Because the lawyer-client relationship is different, the state attorney general is permitted to do things that conflict-of-interest standards would normally prohibit. Thus, a state attorney general’s office has been permitted to represent opposing parties in a lawsuit—two separate state commissions that disagreed about application of state law.[153] State attorneys general routinely file lawsuits against state agencies and officials that they normally represent.[154]
127In other states, attorneys general have a more traditional lawyer-client relationship with client agencies.[155] The agencies make legal policy decisions and the attorney general defends those decisions in court.[156] These government lawyers must defer to their clients’ decisions, even when the lawyers believe that the clients are acting against the public interest.[157] For example, in a Texas case, the Attorney General asked a court to overturn a state agency’s water regulation because of alleged violations of equal protection.[158] The court ruled that the Attorney General could not sue a state agency.[159]
129Occasionally, government lawyers who do not have this trustee-like power will nonetheless make decisions as though they did have the power. The results can be rather strange. For example, in a 1997 case involving a voter initiative, the “Legal Division” of the California Fair Political Practices Commission filed an amicus brief in a case on behalf of the Legal Division itself, even though the Commission had not taken a position on the case.[160] When a lawyer is not tethered to a client, the lawyer may make arguments with which the client would disagree.[161] The West Virginia Attorney General was called upon to defend the Secretary of State in a federal case challenging the state’s apportionment plan for congressional districts.[162] But rather than pursuing the wishes of the Secretary of State and conceding the unconstitutionality of the plan, the Attorney General sought to defend the apportionment plan. So, the Secretary of State obtained a mandamus from the state’s supreme court, directing the Attorney General to pursue the Secretary of State’s objectives in the apportionment litigation.[163]
1312. Basing Decisions on the Public Interest
133Although one finds some support for consideration of the public interest, most commentators have criticized this approach. Geoffrey Miller, in particular, wrote a convincing critique of government lawyers’ considering the public interest, pointing out that this approach would lead to chaos since different lawyers have different conceptions of the public interest.[164] This is a valuable insight, but it is limited in its application. For there is a set of government lawyers who should consider the public interest: those who can make client-like decisions.
135Government lawyers who have this client-like decision-making authority essentially serve as trustees for the client.[165] When making those client-like decisions in their role as trustees, it is appropriate for government lawyers to consider the public interest.[166] For example, the California Attorney General has the authority to bring lawsuits on behalf of the State and has a “paramount duty to represent and protect the public interest.”[167]
137While some have asserted that, for these lawyers, the “public interest” is their client, it makes more sense to conceive of these lawyers as trustees of the client (such as the state government) who can consider the public interest in making their decisions. So, it is not that the public interest is the client, but rather the state is the client, and the state attorney general is entrusted to make decisions about what is in the best interest of the State, and then to implement those decisions through her legal work.[168] The attorney general is both the lawyer and the trustee of the client. The attorney general has the power as trustee to make the determination of what is in the interest of the State.
139If a government lawyer has the authority to make client-like decisions (such as whether to bring or settle cases), then she also has the responsibility to act not just like any client, but in a way this particular client—a sovereign—should act. In our legal tradition, the sovereign is not free to act in the same way as any private litigant but is expected to act fairly and impartially.169 This obligation of fairness is seen most prominently in criminal prosecutions. As the United States Supreme Court declared in Berger v. United States,
141bq.The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.[170]
143This requirement that government lawyers be fair is reflected in prosecutors’ obligations to provide criminal defendants with information that can help the defense, a deviation from the normal adversary process.[171] This obligation to act fairly is so central to the government lawyer’s mission that the Justice Department building has this quotation inscribed near the entrance to the Attorney General’s office: “The United States wins its point whenever justice is done its citizens in the courts.”[172]
145As the Supreme Court explained in Berger, the obligation to do justice is based on the government’s obligation as a sovereign “to govern impartially.”[173] As such, the obligation to govern impartially and do justice would seem to apply with equal force to the government’s civil litigation.[174] One finds strong support for this principle in civil condemnation cases, where courts have found that government lawyers have an obligation to develop a full and fair record to arrive at just compensation, not just to minimize the financial payout by the government.[175] Judge Jack Weinstein has explained that when he was a county attorney handling a condemnation action against an unsophisticated elderly couple, he rejected a proposed settlement because it did not adequately compensate the couple for their valuable land.[176]
147Aside from civil condemnation cases, one finds only a few cases supporting the obligation to be fair.[177] One academic commentator, Steven Berenson, has looked at these few civil cases and concluded that government civil litigators “should be much more concerned with pursuit of the public interest than their counterparts who represent private clients.”[178] But in each of the identified cases, the assertion that government civil litigators must do justice was merely dictum and had no impact on the outcome of the case. For example, in Freeport-McMoRan Oil & Gas Co. v. FERC, Judge Abner Mikva noted that while “[t]he Supreme Court was speaking of government prosecutors in Berger, . . . no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government’s civil lawyers.”[179] But Mikva’s assertion had no impact on the outcome of this case, in which the court dismissed an appeal as moot. Instead, Judge Mikva was simply excoriating the FERC lawyer for pursuing an appeal after the case had clearly become moot and for “so unblushingly deny[ing] [at oral argument] that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.”[180]
149Most of the academic commentary on this issue rejects the notion that government lawyers should consider the public interest, concluding that it is too vague a standard for government lawyers to apply in specific situations.[181] While government lawyers who have client-like decision-making authority should consider the public interest, those who are acting in more traditional lawyer roles vis- à-vis their government clients should defer to their clients’ decisions about what is in the public interest.
151One can find some support for the position that government lawyers should take into account the public interest when making decisions about whether to disclose information. For example, the Hawaii Rules of Professional Conduct specifically empower government lawyers to assess “the public good” in deciding whether to disclose information about government wrongdoing.[182]
153A more modest, alternative formulation of the public interest approach is that the public interest is embodied in a government’s duly enacted statutes, regulations, and rules. A government lawyer promotes the public interest by ensuring compliance with the law.[183] This Article argues that those statutes and regulations that constitute the government’s information-control regime are the substantive standards that define a government lawyer’s confidentiality obligation.[184]
155Usually, the government structure makes it clear that there is an elected or appointed government official who has the authority to make decisions on behalf of the public. Unless the government lawyer has been delegated the authority to make such a determination, she should defer to the appropriate government officials and their determination of what is in the public interest and should take direction from them, rather than implement her own concept of what “the people” desire.[185]
157Returning to the factual scenario that began this Part, Ossias’s client would be the Department of Insurance, which has as its head an elected official, Charles Quackenbush. Even if Ossias believed that Quackenbush was violating the law, she was not permitted to disclose that information to anyone outside the client.[186] Under California law, Ossias had the option of raising the issue with Qackenbush personally,[187] but there is no indication that she did so. The following Part develops an approach to government-lawyer confidentiality that would have specific application to a situation like the one Ossias faced: where a government lawyer comes across information about government wrongdoing.
159III. A GOVERNMENT LAWYER’S CONFIDENTIALITY OBLIGATION
161This Part examines two characteristics of governments that bear on the question of confidentiality. The first characteristic concerns the legitimacy of the government’s keeping secret its own wrongdoing. While the private sector may legitimately keep secret past wrongdoing, several sources— including statutes, court decisions, and commentators—suggest that a government has no such right. This Part will explore the support for the proposition that, as a substantive matter, government lawyers may disclose government wrongdoing.
163The second characteristic concerns the way that the government controls its information. Private sector clients may make disclosure decisions on an ad hoc basis, but most governments have a complex legal regime for controlling their information.[188] This regime includes statutes and regulations prohibiting the disclosure of certain information (such as acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the [lawyer] shall not violate his or her duty of protecting all confidential information . . . . private information about a particular taxpayer);[189] rules requiring disclosure of other types of information (such as an agency’s organizational structure and its final decisions);[190] rules requiring disclosure of certain information upon request (such as unclassified, unprivileged information that must be disclosed under the Freedom of Information Act (FOIA));[191] and additional rules allowing the government to withhold some of the requested information (such as documents subject to FOIA exceptions).[192] This Part asserts that, as a substantive matter, government lawyers may disclose information that the government is required to disclose—either in general or in response to a FOIA request.
165A. Norm of Openness Regarding Government Wrongdoing
167One state has adopted a specific exception to confidentiality for government wrongdoing. Hawaii’s confidentiality rule explicitly permits government lawyers to disclose information about both future and past wrongdoing by government officials. Government lawyers licensed by Hawaii may disclose information in order to prevent a government official or agency “from committing a criminal or illegal act” that the lawyer believes would “result in harm to the public good”[193] or to rectify the consequences of a government official’s or agency’s “criminal or illegal” act that the lawyer reasonably believes was “harmful to the public good.”[194]
169But are lawyers licensed outside of Hawaii free to disclose government wrongdoing even though there is no explicit exception?[195] This section argues that many governments have consented to the disclosure of past misconduct by government employees—including lawyers. One finds such consent in laws encouraging all government employees to come forward with information about misconduct and in whistleblower protection statutes. This section discusses whistleblower protection statutes and how they interact with the lawyer’s ethical obligation of confidentiality.
1711. Statutes Encouraging Government Employees to Disclose Government Wrongdoing
173Jesselyn Radack was working at the Justice Department’s Professional Responsibility Advisory Office in December 2001 when she received a phone call from an FBI lawyer who wanted to find out whether the FBI could legally interrogate John Walker Lindh, an American in Afghanistan who was being held by American forces. CNN had broadcast an interview with Lindh, and the Attorney General had announced that the government would prosecute Lindh to the full extent of the law. In response, Lindh’s father hired a lawyer to represent him. Lindh’s lawyer faxed a letter to the Attorney General and the FBI Director informing them that Lindh was represented by counsel. The FBI lawyer wanted to know whether the government could legally interrogate Lindh, since a legal ethics rule prohibits a lawyer from speaking to another lawyer’s client without that other lawyer’s permission.[196] Radack told the FBI lawyer that the ethics rule prohibited such an interrogation. A couple of days later, the FBI lawyer informed Radack that the interrogation had occurred and together they strategized about how the government should handle the situation. The FBI lawyer and Radack exchanged numerous emails, which Radack printed out and put into the case file.
175About a month later, Radack was given a poor performance evaluation and told that unless she left the Justice Department, the evaluation would become part of her personnel file. Radack began looking for a different job. A few weeks later, the FBI lawyer contacted Radack again because the district court in the Lindh prosecution had ordered the Justice Department to disclose all documents related to the legality of the Lindh interrogation. Radack looked through the case file for the emails on this issue and could find only two of them. After consulting a more experienced colleague, Radack concluded that someone had cleansed the file. Radack asked the information technology specialists to recover the e-mails electronically, and they were able to recover some of them. When Radack informed her supervisor of the action she had taken in recovering the missing e-mails, the supervisor was not pleased.
177Radack eventually left the Justice Department and started her new job. One morning, Radack heard Newsweek’s David Isikoff report that the Attorney General said the Justice Department had never taken the position that its interrogation of Lindh had been illegal. Radack thought that this meant that Justice Department did not disclose her e-mails to the district court judge. She had retained copies of those e-mails and faxed them to Isikoff, who put them on the Newsweek website. After an Inspector General investigation pointed to Radack as the likely source for the leak of these e-mails, the Justice Department opened a criminal investigation of Radack and filed ethics charges against her in the two jurisdictions where she was licensed as a lawyer, Maryland and the District of Columbia. The Maryland bar authorities decided not to pursue a case against Radack. The District of Columbia has not yet made a decision on the Justice Department complaint.[197]
179A variety of statutes indicate that the government does not claim to have a legitimate interest in keeping secret information about government wrongdoing. In 1958, Congress adopted a resolution calling upon all government employees to “[e]xpose corruption wherever discovered.”[198] More concretely, federal, state, and local governments have passed dozens of whistleblower statutes prohibiting retaliation against government employees who disclose government wrongdoing.[199]
181At the federal level, federal law prohibits retaliation against certain executive-branch employees who disclose information that they “reasonably believe[] evidences . . . a violation of any law, rule, or regulation, . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”[200] The statute applies to many but not all executive-branch employees. In general, it applies to civil service employees, to career appointees in the Senior Executive Service, and to employees in the “excepted service” unless their positions have been “excepted from the competitive service because of [their] confidential, policy-determining, policy-making, or policy-advocating character.”[201] It does not apply to military service members or to employees of the FBI, CIA, NSA, or any other agency or unit of an agency that the President determines has as its “principal function . . . foreign intelligence or counterintelligence.”[202] Employees of the judicial and legislative branches are also excluded from its coverage.[203]
183Employees can blow the whistle internally by disclosing the information to another government official, such as an inspector general, or externally by disclosing it to someone outside government, such as a member of the press.[204] Where disclosure of the information is not “specifically prohibited by law,” the employee may choose either internal or external disclosure.[205] But if disclosure of the information is “specifically prohibited by law,” then in order to be protected from reprisal, the government employee must disclose the information internally to one of several identified government officials.[206]
185Many government lawyers are within the class of employees protected by the statute.[207] For these lawyers, what effect does the Federal statute have on their professional obligation of confidentiality under state ethics rules? Several commentators have attempted to answer this question.
187The first to examine this question was Roger Cramton, who in 1991 concluded that the whistleblower statute supersedes state ethics rules because of the Constitution’s Supremacy Clause.[208] But Cramton was writing before Congress’s 1998 enactment of the McDade Amendment, which requires that federal government lawyers comply with state legal ethics rules.[209] In the post-McDade Amendment era, one can no longer rely on the Supremacy Clause to privilege federal whistleblower protection over state confidentiality rules.
189A second commentator, Jesselyn Radack (who blew the whistle on alleged government misconduct as described at the beginning of this section), has argued that government lawyers are permitted to make whistleblowing disclosures because the confidentiality rule has an exception permitting disclosure of information in order “to comply with other law.”[210] But Radack’s argument would be persuasive only if the federal whistleblowing law actually required government employees to blow the whistle on government wrongdoing. A third commentator, James Moliterno, recently asserted that the federal whistleblowing statute functions as the government’s consent to lawyers’ disclosure of wrongdoing.[211] But Moliterno never addresses whether the statute’s provision restricting disclosures that are “specifically prohibited by law” prevents government lawyers from blowing the whistle externally.[212]
191What is the proper application of the whistleblowing statute to government lawyers? For purposes of blowing the whistle on wrongdoing, are lawyers no different from other government employees? Does their professional duty of confidentiality simply melt away in the face of information evidencing “a violation of any law, rule, or regulation, . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety”?[213] Does the restriction on disclosures “specifically prohibited by law” apply to information that is covered by a lawyer’s ethical duty of confidentiality? If so, then a government lawyer may blow the whistle only through internal disclosure to the specified government officials.
193The Merit Systems Protection Board, the administrative agency that adjudicates whistleblower claims, has ruled that when the statute specifies disclosures that are “specifically prohibited by law,” it refers only to disclosures that are prohibited by statute or by executive orders dealing with classified information.[214] Legislative history supports a narrow reading of this provision, as Congress was concerned that agencies would restrict the ability of employees to blow the whistle on wrongdoing by issuing regulations mandating confidentiality.[215]
195Congress did not differentiate between government lawyers and other government employees in its whistleblower protection. One may question whether it is appropriate to allow government lawyers to be as free to publicly disclose alleged government misconduct as are other government employees.[216] As Roger Cramton has noted, government lawyers should be able to reveal an alleged “cover-up of corrupt conduct,” but the federal whistleblowing statute may go “too far in eroding the loyalty and confidentiality that government lawyers owe to the governmental client.”[217] In light of a lawyer’s obligation to communicate with her client,[218] should not a lawyer be required to attempt to solve the problem internally, and go outside only if internal measures are ineffective?[219]
197As a policy matter, the federal government’s whistleblower protection seems to go too far in allowing government lawyers to blow the whistle externally without first requiring them to try internal whistleblowing. Until Congress does differentiate between government lawyers and other government employees in its whistleblower protection, the federal statute signals the government’s consent to its lawyers’ disclosure of government wrongdoing.
199This Part has discussed in detail how the federal government’s Whistleblower Protection Act applies to executive-branch lawyers. State and local government lawyers may receive similar protections, depending on the scope of the applicable whistleblower laws and their state ethics rules.[220] A similar analysis of particular state and local whistleblower protection laws would be required to determine whether those laws serve as the government’s consent to disclosure by government lawyers.
2012. Common-Law Doctrines Regarding the Disclosure of Government Wrongdoing
203The coverage of whistleblower statutes is broad, but not comprehensive. But even government lawyers who fall outside the protection of whistleblower statutes may be able to disclose past government wrongdoing. Two lines of common-law decisions support the government lawyer’s ability to disclose past government wrongdoing. First, in construing the government’s evidentiary privileges, courts have found exceptions to those privileges for government wrongdoing. Second, courts have permitted lawyers for a fiduciary to disclose the fiduciary’s wrongdoing to the beneficiaries. The following section addresses these common-law doctrines.
205The norm of exposing government wrongdoing surfaces not just in whistleblower protection statutes, but also in court decisions construing the government’s evidentiary privileges to allow the exposure of government wrongdoing. These courts have found that a government’s very legitimacy depends on its abiding by its own laws.[221] They have found a “strong public interest in honest government and in exposing wrongdoing by public officials”[222] and have concluded that concealing government wrongdoing “would represent a gross misuse of public assets.”[223] One long-time observer put it this way: “‘[I]f there is wrongdoing in government, it must be exposed. . . . [The government lawyer’s] duty to the people, the law, and his own conscience requires disclosure . . . .”’[224]
207One finds these statements in cases dealing with the government’s evidentiary privileges.[225] Across a range of different evidentiary privileges, courts have limited the government’s ability to keep secret information about government officials’ wrongdoing. This Part examines governmental attorney-client, deliberative-process, state-secrets, and presidential-communications privileges. In each of these areas, courts have rejected governmental privilege where the privilege would prevent disclosure of government wrongdoing.
209In the last decade, four federal appellate courts have examined whether governments can assert attorney-client privilege in the face of federal grand jury investigations of alleged corruption.[226] The first two of these decisions arose out of Independent Counsel Kenneth Starr’s investigation of the Clinton White House227 and involved a federal executive-branch lawyer disclosing information about alleged wrongdoing to another federal executive-branch lawyer, the Independent Counsel, through the mechanism of a grand jury subpoena. Since most executive-branch employees have a statutory obligation to disclose evidence of wrongdoing to the Attorney General,[228] and the Independent Counsel stood in the role of the Attorney General for matters under its jurisdiction,[229] these cases might be seen as simple applications of the mandatory-reporting statute in the Independent Counsel context. Alternatively, one might argue that there was no breach of lawyer confidentiality in these cases at all, as long as one conceives of the lawyer’s client as the entire executive branch.[230] But the courts in these cases did not base their decisions on these theories. Instead, the courts seemed to assume that the client was a particular government agency, and that disclosing the information would breach the lawyer’s confidentiality obligation to that agency.[231] The courts justified allowing this breach of confidentiality with general statements about the repugnance of keeping government wrongdoing secret.[232]
211The remaining two appellate cases involved federal criminal investigations of corrupt state governments. In a case arising out of a federal investigation of former Illinois Secretary of State George Ryan, the Seventh Circuit ruled that the state’s interest in lawyer confidentiality must give way to the federal government’s interest in rooting out government wrongdoing.[233] In a case involving former Connecticut Governor John Rowland, the Second Circuit ruled that the state’s interest in lawyer confidentiality prevailed over the federal government’s law enforcement interest, relying in part on a Connecticut statute indicating that the state government can assert attorney-client privilege in any governmental proceeding.[234]
213With respect to all three types of executive privilege (presidential communications, deliberative process, and state secrets), courts have rejected government claims of privilege where application of the privilege would conceal government wrongdoing. The Supreme Court ruled in United States v. Nixon that President Nixon’s claim of the presidential-communications privilege had to give way to the governmental interest in uncovering evidence of wrongdoing.[235] In a case rejecting a claim of the deliberative-process privilege, a federal district court noted that while there is a public interest in the deliberative-process privilege, there is also a competing public interest in ensuring “the basic right of the citizen to petition his government for the redress of grievances.”[236] With respect to both the presidential-communications and deliberative-process privilege, the executive branch itself has publicly disclaimed any desire to withhold information that would disclose government wrongdoing.[237] Similarly, in a case arising out of the government’s unlawful, warrantless surveillance of a private citizen in 1963, the government admitted that its conduct had been illegal but nonetheless claimed the state-secrets privilege shielded documents regarding the surveillance.[238] The district court refused to recognize this claim of executive privilege because it would prevent discovery of government conduct that was admittedly illegal.[239]
215The cases described above all deal with a government’s evidentiary privileges and exceptions to those privileges allowing one arm of the government to compel disclosure of information related to government officials’ misconduct. Such exceptions to evidentiary privileges do not necessarily imply an analogous exception to a confidentiality duty.[240] But these exceptions do suggest that the government has a lessened interest in keeping confidential information about its own misconduct.
217Additional support for the government lawyer’s ability to reveal wrongdoing can be found in cases dealing with the obligations of lawyers who represent fiduciaries. A lawyer who represents a fiduciary may reveal the fiduciary’s wrongdoing to the beneficiary.[241] Since government officials are fiduciaries of the public, these court decisions suggest that government lawyers may disclose government officials’ wrongdoing to the public.[242]
219This Part has argued that both whistleblowing statutes and common-law doctrines support government lawyers’ ability to disclose government wrongdoing. Applying this analysis to Jesselyn Radack’s disclosure discussed at the beginning of this Part, she may have believed that the government made an incomplete disclosure to the federal court hearing John Walker Lindh’s criminal case. But, as discussed later in this Article, she should have pursued her concerns within the Justice Department prior to breaching confidentiality. The following Part asserts that government lawyers may disclose information that would be subject to mandatory disclosure under freedom of information laws.
221B. Open Government Laws Should Be Construed as Client Consent to Disclosure
223Jeffrey Toobin, a federal prosecutor, wrote a memoir about his experiences working on the Iran-Contra investigation.[243] While working on that case, Toobin was subject to two separate confidentiality regimes: the legal ethics obligation of confidentiality244 and the secrecy and prepublication-review requirements for government officials who have access to highly classified national security information.[245] In connection with the latter obligations, Toobin submitted his manuscript to the Central Intelligence Agency, which reviewed it to ensure that it did not contain any confidential national security-related information, and it passed that review.[246] His former supervisor, Iran-Contra Independent Counsel Lawrence Walsh, was concerned about the disclosure of information about the Independent Counsel’s office. Walsh threatened to file a bar disciplinary complaint if Toobin went forward with publication. Toobin and his publisher filed suit preemptively, seeking a declaratory judgment that publication would not violate his ethical obligation of confidentiality. Walsh countersued, claiming that publication would breach lawyer confidentiality, grand-jury secrecy, and the federal regulation barring employees from disclosing nonpublic government information. While the district court refused to rule on the legal ethics claim, it rejected Walsh’s argument that grand-jury secrecy was so broad that it prohibited the manuscript’s physical descriptions of the prosecutors and rejected Walsh’s regulatory claim because it found that the only nonpublic government information revealed was trivial.[247] This district court decision has no precedential value, however, because the appellate court eventually vacated it in response to the publisher’s decision to publish the book before the appellate court had an opportunity to hear the oral arguments in the case.[248]Although Walsh sent a draft ethics complaint to Toobin’s then-current employer (the federal prosecutor for the Eastern District of New York), he never did file a complaint with bar authorities.
225One difference between governments and private clients is the way they control their information. This difference is significant because lawyers are permitted to disclose client information if the client consents. Private individual clients generally have an ad hoc approach to controlling their information. A lawyer who represents a private client and wants to disclose particular information can seek that client’s consent. Even in the case of an entity client, the lawyer could go to the appropriate representative of the entity and ask for consent to make the disclosure.[249] That individual can make the decision of whether to grant or withhold the entity’s consent on an ad hoc basis.
227Governments, on the other hand, generally have a complex legal regime for the control and disclosure of their information. A government official cannot consent to a lawyer’s disclosure of this information without first considering that complex legal regime. This regime can be divided into four categories: laws that prohibit the government from disclosing information, laws that require the government to disclose information, laws that require the government to disclose certain information upon specific request, and laws that exempt some information from mandatory disclosure upon that request.
229Some statutes and regulations prohibit the government from disclosing information.[250] These include laws that protect information about individuals’ privacy, such as the Privacy Act,[251] statutes that prevent the government from revealing information from individuals’ tax returns,[252] and statutes, executive orders, and regulations that prevent the government from revealing security-related information, such as the requirements that the Director of National Intelligence protect intelligence sources and methods and that atomic and cryptographic information be safeguarded.[253] In addition, executive-branch regulations prohibit employees from disclosing “nonpublic” information for their own or a third party’s benefit.[254] The difficulty comes in determining which government information is considered to be “nonpublic.”
231A second category of information-related laws actually requires the government to disclose certain information. For example, at the federal level each executive-branch agency is required to disclose a description of how it is organized, statements of its functions and procedures, descriptions of forms, “statements of general policy or interpretations of general applicability,”[255] statements of policy and interpretations, final opinions and orders made in the adjudication of cases, and manuals and instructions that affect members of the public.[256] Similarly, the federal government and the states have myriad open meeting laws requiring much of the government’s business to occur in public.[257]
233A third category of information-related law requires the government to disclose information upon request. The Federal Freedom of Information Act (FOIA) imposes this obligation on all executive-branch agencies, but exempts the legislative and judicial branches.[258] But some of what the government giveth with one hand, it taketh away with the other. The Federal FOIA has nine exceptions, the most important of which are the following: where a statute prohibits the government from disclosing the information;[259] where an executive order authorizes the government to keep the information secret;[260] where an evidentiary privilege would protect that document from disclosure in litigation;[261] certain law enforcement documents;[262] and personnel or medical files that, if released, would constitute a violation of personal privacy.[263]
235It is by no means obvious how open government laws should mesh with the law of attorney-client confidentiality. But courts and commentators have tackled this type of issue scores of times in an attempt to harmonize open meeting laws with the law on attorney-client privilege. Courts generally acknowledge the conflicting principles behind these two areas of law and attempt to find an accommodation between these two principles.[264]
237Government employees who make unauthorized disclosures of government information can be disciplined administratively or by bar authorities if they are lawyers, and they can even be subjected to criminal prosecution under limited circumstances. The government has criminally prosecuted leaks of national security and other information as thefts of government property.[265]
239This Article argues that to determine the scope of a government lawyer’s confidentiality duty, one must look not just at legal ethics doctrine but also at the government’s information-control regime. Dozens of courts have taken a similar approach in a related legal context: determining the scope of the government attorney-client privilege. State courts across the country have determined what information state and local governments can claim to be privileged by looking closely at state open meeting laws and coming to an accommodation between these open government laws and the traditions of confidential lawyer-client relations.[266]
241As discussed above, the government, like any client, can consent to disclosure of information that would otherwise be protected by lawyer confidentiality. But, unlike other clients, the government’s decision about consent is constrained by its legal regime for the control of its information. To determine the scope of the government’s consent to lawyer disclosure, one must examine the government’s information-control regime. Government consent occurs as follows: If the information-control regime requires the government to disclose particular information (such as an agency’s final decision in an adjudication267), then the government has consented to disclosure of that information.[268] If the government is prohibited from disclosing particular information, then the government has withheld its consent. But a great deal of government information will fall between these two extremes and the government will have the discretion to disclose or withhold the information. If the information is subject to mandatory disclosure upon request, then, as a substantive matter, the government has consented to disclosure. But as a procedural matter, the government lawyer should seek the assent of a disinterested government official.[269]
243In addition, unlike private sector clients, governments generally have policies favoring disclosure of information unless there is a specific reason not to disclose. Demonstrative of this policy are freedom of information laws, which set out a general right of access to government records and then specify exceptions to that right of access. In other words, when someone seeks disclosure of government information, there is a presumption that the government will make the information available. Where the government refuses to disclose it, the burden is on the government to justify the refusal.[270] This presumption in favor of disclosure is consistent with principles of robust democratic government. It also has a constitutional basis, in that the First Amendment requires that government employees be permitted to discuss their work unless there is a good reason that such disclosures cannot be allowed.[271]
245One jurisdiction has already made explicit this type of exception to confidentiality in the government context. Lawyers licensed by the District of Columbia are permitted to disclose “when . . . required by law or court order,”[272] but a government lawyer may also disclose when “permitted or authorized by law.”[273] This language seems to suggest that a government lawyer may disclose information whenever disclosure would be permitted under open government laws, such as the FOIA.[274]
247Applying this analysis to Jeff Toobin’s memoir (discussed at the beginning of this Part), Toobin’s disclosure appears to be consistent with the types of information that are subject to disclosure under the FOIA. Also, Toobin followed a disclosure-approval procedure similar to the procedure that the next Part recommends be adopted for all government lawyers.
249IV. THE NEED FOR AN ORDERLY PROCEDURE FOR DISCLOSURES
251The previous Part identified two ways in which a government lawyer’s duty of confidentiality is different from that of a private sector lawyer: government lawyers may reveal information about past government wrongdoing and may reveal information that the government client must reveal under freedom of information (FOI) laws. But the substantive standard is only part of the story. There also needs to be a procedure for making such disclosures. With regard to misconduct, state supreme courts need to set up a procedure requiring the lawyer to give the government advance notice of her plan to disclose, similar to the current procedure for entity lawyers disclosing misconduct.[275] With regard to information covered by FOI laws, governments need to set up a procedure so that someone other than the lawyer wishing to disclose makes the determination whether this information must be disclosed under the law. Otherwise, lawyers attempting to apply the FOI laws themselves are likely to have a bias favoring disclosure. [276] This Part sketches out a few ideas about the appropriate procedures for government lawyers’ disclosing government wrongdoing and other government information.
253A.Procedures for Disclosing Government Wrongdoing
255bq.Lieutenant Commander Matt Diaz had spent eighteen years in the Navy when he was assigned to be a legal advisor at Guantanamo in 2004. While there, he became concerned that the U.S. government was treating prisoners inhumanely and violating their rights under the Geneva Conventions and the U.S. Constitution. Earlier, a human rights organization had filed a lawsuit on behalf of the prisoners, requesting a list of all those being held at Guantanamo. The government had resisted that demand. Just before his Guantanamo assignment was to end, Diaz anonymously sent a list of the Guantanamo prisoners to a lawyer at the human rights organization. The lawyer turned the list over to the judge in the case, who gave it to court security personnel. Fingerprint analysis pointed to Diaz, who was eventually convicted after a court martial. Diaz said, “Obviously I chose the wrong path . . . . [M]y career is in . . . much more serious jeopardy than it would have been if I had raised the issue to my chain of command.”[277]
257There are better and worse ways for government lawyers to blow the whistle on misconduct. Contrast the approach of Navy JAG Matt Diaz, who, without consulting other government officials, secretly and anonymously sent a list of Guantanamo detainees to a human rights organization, with that of Navy General Counsel Alberto Mora, who joined with other government employees who also opposed mistreatment of prisoners and argued internally for a change in policy.[278] Diaz was prosecuted and sentenced to six months in prison for the unauthorized release of defense information.[279] Mora received a “Profile in Courage” award from the JFK Library.[280] Diaz’s situation points out the need for an orderly procedure for disclosures.
259This Article has argued that, as a substantive matter, government lawyers are permitted to disclose government wrongdoing. But even if a government lawyer’s confidentiality duty has an exception for wrongdoing, the lawyer still must communicate adequately with and be loyal to her client.[281] Because of these other duties, the lawyer needs to take certain steps prior to disclosing government wrongdoing. Responsible officials may not even be aware of the wrongdoing, and the lawyer should alert such officials to the problem prior to disclosing the wrongdoing to the public.[282] If the wrongdoing is ongoing, the government needs to make changes so that it does not continue the misconduct. If the wrongdoing has already occurred, the government may need to rectify the harm that the past wrongdoing has caused. In either case, the client deserves the opportunity to plan for the forthcoming disclosure of the wrongdoing.
261In light of these considerations, the lawyer needs to bring the wrongdoing to the attention of a responsible party within the government client prior to disclosing the wrongdoing outside the client. The responsible party should be given the opportunity to make the appropriate changes to prevent future wrongdoing or remedy the harm caused by the past wrongdoing. Only after ensuring that a responsible party has received notice would it be appropriate for the government lawyer to disclose the wrongdoing outside the client.
263Outside disclosure should proceed first to another government official or entity that properly has the authority to respond to the specific allegations of wrongdoing. For example, if Cindy Ossias had attempted to convince the California Insurance Commissioner of the need to change his policies and had been unsuccessful, then she could have appropriately approached either the state attorney general, state auditor, or state legislature, all of which would have had authority to investigate the alleged misconduct. Only if other government agencies are unwilling or unable to take action may the lawyer then disclose the misconduct to the public or the press. [283] This step- wise disclosure approach is more moderate and nuanced than that present in most state and federal whistleblower protection statutes, which permit disclosure to anyone.
265This proposed procedure is similar to—but not exactly the same as— the procedure prescribed for entity lawyers in the new legal ethics rule for entities that the American Bar Association adopted after Sarbanes-Oxley.[284] Under the rule, an entity lawyer must attempt to remedy the illegal conduct within the entity client. Only if the entity client fails to take appropriate action may the lawyer disclose information outside the client.[285] Under this proposed procedure for government lawyers, the lawyer must first bring the information to the attention of an appropriate actor within the government client. That official may happen to agree with the lawyer’s legal assessment and therefore begin taking corrective action.[286] On the other hand, the official may convince the lawyer that the alleged wrongdoing was not actually illegal.[287] One lawyer who could have benefited from this approach was Joyce Crandon, who was general counsel of the Kansas Office of the State Banking Commissioner, a bank regulatory agency. Another agency employee told Crandon that a deputy commissioner had obtained loans from two of the regulated banks and Crandon believed that the loans were illegal under federal and state banking laws. But she did not raise this concern with the deputy commissioner or the commissioner. Instead, she reported it to the Federal Deposit Insurance Corporation (FDIC). The Commissioner learned that Crandon reported this situation to the FDIC while he was meeting with the FDIC, and he proceeded to fire Crandon. A state court rejected her wrongful discharge claim, finding that she had improperly disclosed confidential information.[288]
267Under this proposed procedure, if the lawyer has given internal notice, then, after a reasonable time has passed, the lawyer may publicly disclose the wrongdoing even if the government has taken remedial action. This different result reflects the different values at stake in entity and government representation. The entity procedure is aimed at having the lawyer take action to ensure that the entity protects itself from disloyal servants.[289] If the entity succeeds in remedying the situation, there is no need for the lawyer to make a public disclosure. This proposed government procedure is simply aimed at giving the government a heads-up prior to the disclosure of wrongdoing.
269The substantive standard—permitting lawyers to disclose government wrongdoing—reflects the fact that governments do not have a legitimate interest in keeping wrongdoing secret. This procedural requirement— requiring lawyers to notify responsible government officials prior to public disclosure—will both help the government plan for disclosure and help prevent the government lawyer from making the kind of mistake that Joyce Crandon and Matt Diaz made. The substantive standard serves to protect the public from government wrongdoing. The procedure serves to protect governments from overzealous government lawyers.
271In light of the statutory and common-law support for the government lawyer’s ability to disclose government wrongdoing, state supreme courts should amend their professional rules to clarify that government lawyers may disclose past government wrongdoing and to create an appropriate procedure for such disclosure. The rule should clarify that a government lawyer must first exhaust the internal process before disclosing the wrongdoing outside the government.
273An explicit exception would assist lawyers in clarifying their legal obligations. Setting out a specific and orderly procedure for these lawyers to follow is necessary because the government ought to be given the benefit of notice of forthcoming disclosure.
275B. Procedures for Disclosing Information that Must Be Released Under Freedom of Information Laws
277bq.Darrell McGraw was the elected Attorney General of West Virginia and representing the Division of Environmental Protection (DEP) in litigation to enforce state landfill laws. During a meeting with the landfill owner, a representative of the DEP indicated that its position on landfill requirements might change. Attorney General McGraw later revealed this possible DEP change in position to a member of the public who was part of an environmental group. That revelation could have undermined the political ability of DEP to make the change, so DEP filed ethics charges against McGraw based on this unauthorized disclosure.[290] McGraw argued that DEP had already revealed this information to the opposing party in a case and that this information would have had to be disclosed under the state FOIA. But the West Virginia Supreme Court ruled that the information was still subject to confidentiality under Rule 1.6 of West Virginia’s Rules of Professional Conduct and that the duty of confidentiality under that rule was not subject to waiver through disclosure to third parties as was the attorney-client privilege.[291] The court publicly reprimanded Attorney General McGraw for the unauthorized disclosure.[292]
279If one accepts the assertion that the government lawyer’s confidentiality obligation does not, as a substantive matter, cover information that must be disclosed under FOI laws, then it would seem that Darrell McGraw did not violate his duty of confidentiality. But this Article asserts that there is also a procedural component to the duty of confidentiality in order to ensure that the lawyer is not making a biased judgment about application of the FOI laws. The Supreme Court has recognized a similar procedural component to a confidentiality duty imposed on government employees who have had access to classified information. In Snepp v. United States, the Court imposed a constructive trust on book royalties earned by a former CIA employee who published his book without first submitting it to the agency for prepublication review.[293] Even though the book did not contain any confidential information,[294] the Court nonetheless found that Snepp violated his fiduciary duty to safeguard confidential information by refusing to submit to the designated prepublication-review procedure.[295] Similarly, government lawyers need to deal with both a substantive confidentiality standard as well as procedures for protecting confidential information.
281In order to implement this FOI exception in an orderly fashion, governments need to adopt a procedure for reviewing requests for disclosure. The federal government does not have such a procedure in place for government lawyers.[296] But two federal agencies do have similar procedures in place: the Securities and Exchange Commission (SEC) has a screening procedure for its employees who have had access to confidential investigations and the CIA has a prepublication-review procedure for employees with security clearances. The SEC regulation prohibits its employees from using “confidential or nonpublic information” when writing, lecturing, or teaching, and implements that prohibition by requiring employees to submit all publications and prepared speeches to the SEC General Counsel’s office for review.[297] Similarly, the CIA requires its employees to submit all writings related to the CIA to its Publications Review Board, which vets the documents to ensure that they do not contain any confidential national security information.[298] While these review procedures are not without problems, [299] they do provide an authoritative answer to the question of whether the government employee can disclose particular information.
283CONCLUSION
285It is not uncommon for current and former government lawyers to disclose information that appears to be covered by their professional obligation of confidentiality. In their memoirs, these lawyers generally do not acknowledge their professional confidentiality obligation.[300] The actual practice of current and former government lawyers and the degree to which they acknowledge and comply with their professional duty of confidentiality are issues that deserve further attention.
287This Article has examined the content of the government lawyer’s professional duty of confidentiality, and in particular how that duty interacts with whistleblower protection and open government laws. It examined the complex question of the identity of a government lawyer’s client, noted that many government lawyers make decisions that are normally reserved for clients, and found that those lawyers can appropriately consider the public interest in making those decisions.
289The Article began with the story of Alberto Mora, who told a reporter about the internal Defense Department legal debates over the treatment of prisoners at Guantanamo. This information about the content of a lawyer’s advice to his client would be subject to the attorney-client privilege, and thus is not subject to mandatory disclosure under the Freedom of Information Act.[301] But Mora was describing what he saw as misconduct on the part of other government officials. Under the analysis in this Article, as a substantive matter, Mora would be able to disclose government misconduct. As a procedural matter, Mora attempted to address the problem within the government, going all the way up to the Defense Department’s General Counsel.[302]
291As a substantive matter, government lawyers may disclose government wrongdoing and may reveal information that is subject to disclosure under freedom of information laws. But as a procedural matter, state supreme courts and governments need to establish procedures for government lawyers to follow when disclosing wrongdoing or other information that would be subject to disclosure under freedom of information laws.
2931 See Memorandum from Alberto J. Mora, Gen. Counsel, Dep’t of the Navy, to Navy Inspector Gen. (July 7, 2004), http://aclu.org/pdfs/safefree/mora_memo_ july_2004.pdf. See also Jane Mayer, The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees was Thwarted, New Yorker, Feb. 27, 2006, at 32.
2952 See Carnegie Council, Dan Rather Interviews Alberto J. Mora, Former U.S. Navy General Counsel (Nov. 2, 2006), http:// www.cceia.org/resources/transcripts/5404.html; Mayer, supra note 1.
2973 Alberto Mora, Remarks at Ethics of Lawyering in Government course, Washington University Congressional & Administrative Law Clinic, Washington, D.C. (Apr. 3, 2006).
2994 See discussion of confidentiality exceptions infra notes 27-32 and accompanying text. Attorney-client privilege, by contrast, is subject to client waiver. If a client reveals information about a conversation with a lawyer, then the client has waived the privilege for that conversation and can be forced to reveal more information about that otherwise privileged conversation. Restatement Third of the Law Governing Lawyers §79 (2000) ( “The attorney-client privilege is waived if the client … voluntarily discloses the communication in a non-privileged communication.”).
3015 The exception is Hawaii, which has adopted different confidentiality standards for government lawyers. See Hawaii Rules of Prof’l Conduct R. 1.6©(4)-(5) (2007) (discussed infra Part III.A).
3036 This Article uses the term “government lawyers” to refer to lawyers who are either employed or retained by the government. Most government-retained lawyers generally have traditional lawyer-client relationships with their government clients, while some lawyers employed by governments have the authority to make decisions that are usually in the hands of the client. This difference in the structure of authority can have implications for the lawyer’s confidentiality duty. See infra Part II.C. For a discussion of how several legal ethics rules (but not the duty of confidentiality) apply to lawyers retained by governments, see Ronald D. Rotunda, Ethical Problems in Federal Agency Hiring of Private Attorneys, 1 Geo. J. Legal Ethics 85 (1987).
3057 ABA Model Rule of Professional Conduct (hereinafter “Model Rule”) 1.6(a) identifies two exceptions. The lawyer may disclose information if:• “the client gives informed consent” to the disclosure; or• the lawyer is impliedly authorized to make the disclosure “in order to carry out the representation.” Model Rules of Prof’l Conduct R. 1.6(a) (2007). The remaining exceptions are found in Model Rule 1.6(b)(1)-(6). See infra notes 27-32 and accompanying text.
3078 It appears that Mora’s conduct would be governed by the D.C. Rules of Professional Conduct because he is licensed to practice by the District of Columbia. D.C. Bar, Find a Member, http://www.dcbar.org/find_a_ member/index.cfm (last visited Mar. 21, 2008) (indicating that Alberto Mora was admitted to practice in D.C. in 1994).
The information that Mora disclosed would constitute “secret” information “the disclosure of which would be embarrassing … to the client.” D.C. Rules of Prof’l Conduct R. 1.6(b) (2006). Mora might be able to justify his disclosure by arguing that his client consented to disclosures related to government wrongdoing. See id. 1.6(d)(1) (“A lawyer may … reveal client … secrets … with the consent of the client affected, but only after full disclosure to the client.”). See also infra Part III.A.1 (arguing that the whistleblower protection laws constitute government consent to lawyer disclosure of wrongdoing).
9 The Bureau of Labor Statistics indicates that the federal government employs 28,440 lawyers, state governments employ 34,760 lawyers, and local governments employ 49,110 lawyers, for a total of 112,310 lawyers employed by the government. Bureau of Labor Statistics, U.S. Dep’t of Labor, Occupational Employment and Wages May 2006, http://www.bls.gov/oes/current/oes231011.htm #nat.
31110 Robert P. Lawry wrote one of the most comprehensive examinations of this issue before the American Bar Association adopted the Model Rules of Professional Conduct, which is now the model for lawyer regulation in forty-seven states and the District of Columbia. Robert P. Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625 (1979) [hereinafter Lawry, Confidences]; see also Robert P. Lawry, Who is the Client of the Federal Government Lawyer? An Analysis of the Wrong Question, 37 Fed. B.J. 61 (Fall 1978) [hereinafter Lawry, Wrong Question]; http:// www.abanet.org/cpr/mrpc/model_rules.html (last visited Apr. 3, 2008) (indicating that California, New York and Maine are the only states that have not adopted professional conduct rules that follow the format of the ABA Model Rules). Several articles have briefly examined confidentiality in the course of a broader look at the ethical issues facing government lawyers. See Steven K. Berenson, The Duty Defined: Specific Obligations That Follow from Civil Government Lawyers’ General Duty to Serve the Public Interest, 42 Brandeis L.J. 13, 31-45 (2003); Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64 S. Cal. L. Rev. 951 (1991); Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. Chi. L. Rev. 1293 (1987); Richard C. Solomon, Wearing Many Hats: Confidentiality and Conflicts of Interest Issues for the California Public Lawyer, 25 Sw. U. L. Rev. 265 (1996).
Several articles have examined the ability of government lawyers to blow the whistle on government misconduct. See Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 Geo. J. Legal Ethics 291 (1991); Charles S. Doskow, The Government Attorney and the Right to Blow the Whistle: The Cindy Ossias Case and Its Aftermath (A Two-Year Journey To Nowhere), 25 Whittier L. Rev. 21 (2003); James E. Moliterno, The Federal Government Lawyer’s Duty to Breach Confidentiality, 14 Temp. Pol. & Civ. Rts. L. Rev. 633 (2005); Jesselyn Radack, The Government Attorney-Whistleblower and the Rule of Confidentiality: Compatible at Last, 17 Geo. J. Legal Ethics 125 (2003). Others have looked specifically at the confidentiality obligations of prosecutors. See Rita M. Glavin, Note, Prosecutors Who Disclose Prosecutorial Information for Literary or Media Purposes: What About the Duty of Confidentiality?, 63 Fordham L. Rev. 1809 (1995); Rachel Luna, Note, The Ethics of Kiss-and-Tell Prosecution: Prosecutors and Post-Trial Publications, 26 Am. J. Crim. L. 165 (1998).
11 That legal battle occurred in separate court cases in the D.C. and Eighth Circuits. See In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). Articles about these cases include Lance Cole, The Government-Client Privilege After Office of the President v. Office of the Independent Counsel, 22 J. Legal Prof. 15 (1998); Todd A. Ellinwood, “In the Light of Reason and Experience”: The Case for a Strong Government Attorney-Client Privilege, 2001 Wis. L. Rev. 1291 (2001); Melanie B. Leslie, Government Officials as Attorneys and Clients: Why Privilege the Privileged?, 77 Ind. L.J. 469 (2002); Michael Stokes Paulsen, Who “Owns” the Government’s Attorney-Client Privilege?, 83 Minn. L. Rev. 473 (1998); Marion J. Radson & Elizabeth A. Waratuke, The Attorney-Client and Work Product Privileges of Government Entities, 30 Stetson L. Rev. 799 (2001); Patricia E. Salkin & Allyson Phillips, Eliminating Political Maneuvering: A Light in the Tunnel for the Government Attorney-Client Privilege, 39 Ind. L. Rev. 561 (2006); Adam M. Chud, Note, In Defense of the Government Attorney-Client Privilege, 84 Cornell L. Rev. 1682 (1999); Amanda J. Dickmann, Note, In re Lindsey: A Needless Void in the Government Attorney-Client Privilege, 33 Ind. L. Rev. 291 (1999); Bryan S. Gowdy, Note, Should the Federal Government Have an Attorney-Client Privilege?, 51 Fla. L. Rev. 695 (1999); Katherine L. Kendall, Note, In re Grand Jury Subpoena Duces Tecum: Destruction of the Attorney-Client Privilege in the Governmental Realm?, 1998 Utah L. Rev. 421 (1998); Note, Maintaining Confidence in Confidentiality: The Application of the Attorney-Client Privilege to Government Counsel, 112 Harv. L. Rev. 1995 (1999). For earlier treatments of the issue, see Lory A. Barsdate, Note, Attorney-Client Privilege for the Government Entity, 97 Yale L.J. 1725 (1988); Ronald I. Keller, Note, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, 62 B.U. L. Rev. 1003 (1982).
31512 MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2007).
31713 Mark Felt & John O’Connor, A G-Man’s Life: The FBI, Being “Deep Throat,” and the Struggle for Honor in Washington 193 (2006)
31914 Id. at 215 (“Only two days after the [Watergate] burglary, [Felt] helped Woodward on the Washington Post’s first big story, confirming that [Howard] Hunt was connected to the White House and a prime suspect in the break-in.”).
32115 1.Carl Bernstein & Bob Woodward, All the President’s Men 71 (1974).
32316 John D. O’Connor, “I’m the Guy They Called Deep Throat,” Vanity Fair, July 2005, at 86; see also Felt & O’Connor, supra note 13. In 1979, Felt published his original memoir, which was, of course, silent about his role as “Deep Throat.” W. Mark Felt, The FBI Pyramid From the Inside (1979).
32517 Felt & O’Connor, supra note 13, at xiii.
32718 Id. at 216-21.
32919 Id. at xiii (asserting that Felt “stood alone to guard the FBI’s integrity” and that “when the Nixon administration tried to subvert the Bureau as it had other government agencies, Mark met with Woodward to shed light on the abundant misuses of power”).
33120 Felt was in a government job that routinely required legal judgments about compliance with constitutional and statutory standards as well as court rules, but it appears that he was not acting as a lawyer. Lawyers advise and advocate on behalf of clients. Felt was an administrator who was advised by lawyers.
33321 Felt actually did face bar discipline for other actions he took at the FBI. He had authorized warrantless searches of the homes and apartments of people associated with the Weather Underground. W. Mark Felt, The FBI Pyramid From the Inside 327 (1979). After his retirement, Felt acknowledged his role in these warrantless searches, id. at 330, and was eventually convicted for criminal violation of the constitutional rights of those subjected to these illegal searches. Robert Pear, 2 Ex-F.B.I. Officials Are Found Guilty in Break-ins Case, N.Y. Times, Nov. 7, 1980, at A1. After his felony conviction, the District of Columbia Bar suspended Felt’s bar license. In re W. Mark Felt, No. M-68-81 (D.C. Cir. Mar. 27, 1981) (on file with author). Later, President Ronald Reagan pardoned Felt and his law license was restored. In re W. Mark Felt, No. M-68-81 (D.C. Cir. June 21, 1982) (on file with author). Years later, the D.C. Court of Appeals decided that it could still discipline a lawyer for conduct that was subject to a presidential pardon. In re Abrams, 689 A.2d 6, 2325 (D.C. 1997) (censuring former Assistant Secretary of State Elliott Abrams for giving false testimony to Congress in connection with the Iran-Contra scandal).
33522 The confidentiality duty also prohibits a lawyer from using client information for the lawyer’s or someone else’s benefit to the disadvantage of the client. This prohibition is in a distinct professional rule. See Model Rules of Prof’l Conduct R. 1.8(b) & cmt. 5 (2007).
33723 Model Rule 1.6(a) states: “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).” Id. R. 1.6(a). Model Rule 1.6(b) sets out exceptions.
A few states use an older, narrower formulation of the confidentiality obligation, requiring lawyers to keep confidential only information that the client has told the lawyer in confidence and information that could be detrimental to the client if disclosed. See, e.g., D.C. Rules of Prof’l Conduct R. 1.6; Ill. Rules of Prof’l Conduct R. 1.6. This formulation comes from the ABA Model Code Disciplinary Rule 4-101, which states that “a lawyer shall not knowingly … [r]eveal a confidence or secret of his client.” Model Code of Prof’l Responsibility DR 4-101 (1980).
24 The confidentiality obligation applies to the factual information that the lawyer learns about a client’s situation (and any other factual information), but does not apply to the legal expertise that a lawyer develops in a particular area of the law. Restatement Third of the Law Governing Lawyers §59 cmt. e.
34125 There is some support for the notion that the client’s interest in confidentiality diminishes over time. See Bonnie Hobbs, Note, Lawyers’ Papers: Confidentiality Versus the Claims of History, 49 Wash. & Lee L. Rev. 179, 204-08 (1992) (discussing an implied “historical interest” exception allowing lawyers to donate their papers to archives and historians and others to examine these documents decades after the matters have closed, even without client consent). But see Swidler & Berlin v. United States, 524 U.S. 399, 403-11 (1998) (attorney-client privilege survives the death of the client).
34326 See, e.g., In re Gemmer, 566 N.E.2d 528, 529, 533 (Ind. 1991) (lawyer suspended from practice of law for three years for, inter alia, writing letter to tax authorities asserting that former client did not have any documentary support for his position); In re Nelson, 327 N.W.2d 576, 579 (Minn. 1982) (lawyer suspended for six months for “attempt[ing] to use clients’ confidences to their detriment and to his own advantage”); In re Metrik, 240 N.Y.S.2d 443, 444 (N.Y. App. Div. 1963) (lawyers censured for revealing confidences unnecessarily in a fee dispute with former client); Grutman Katz Greene & Humphrey v. Goldman, N.Y. L.J., June 11, 1996, at 27 (lawyer breached fiduciary duty when he revealed confidential information about his former clients in his book, Lawyers and Thieves); Bar Ass’n v. Watkins, 427 N.E.2d 516, 517 (Ohio 1981) (lawyer suspended indefinitely from practice of law for revealing client confidence); In re Pressly, 628 A.2d 927, 928-29, 931 (Vt. 1993) (lawyer reprimanded for revealing against client’s will her suspicion that her husband had sexually abused their daughter); Thiery v. Bye, Bye, Goff & Rohde, Ltd., 597 N.W.2d 449, 451, 453 (Wis. 1999) (lawyer sued for breach of fiduciary duty for disclosing confidential client information while teaching college course); In re Rader, 359 N.W.2d 156, 159-60 (Wis. 1984) (lawyer suspended for ninety days for revealing client confidences).
34527 Model Rules of Prof’l Conduct R. 1.6(b)(1) (to prevent death or substantial bodily harm); id. R. 1.6(b)(2) (to prevent client from committing crime or fraud using the lawyer’s services); id. R. 1.6(b)(3) (to prevent, mitigate, or rectify financial injury caused by a client’s crime or fraud, where client is using the lawyer’s services).
34728 Id. R. 1.6(b)(4) (to obtain legal advice); id. R. 1.6(b)(5) (to establish claim or defense in lawyer’s dispute with client, or to establish defense to criminal charge or civil claim against lawyer). While most states have adopted the Model Rules, the confidentiality exceptions vary considerably from state to state. See Susan R. Martyn, Lawrence J. Fox & W. Bradley Wendel, The Law Governing Lawyers 2006-2007 Edition: National Rules, Standards, Statutes, and State Lawyer Codes 112-19 Ch. (2006) (“State Lawyer Code Exceptions to Client Confidentiality That Permit (May) or Require (Must) Disclosure”).
34929 Model Rules of Prof’l Conduct R. 1.6(a). This Article argues that open government laws should be construed as client consent to disclosure. See infra Part III.B.
35130 Model Rules of Prof’l Conduct R. 1.13(b). The ABA added this exception when it adopted revised Model Rule 1.13 in the wake of the Enron and Worldcom scandals and the passage of Sarbanes-Oxley. Roger C. Cramton, George M. Cohen & Susan P. Koniak, Legal and Ethical Duties of Lawyers After Sarbanes-Oxley, 49 Vill. L. Rev. 725, 732-33 (2004). Twenty-two states have adopted this additional entity-based exception to confidentiality. See Thomas D. Morgan & Ronald D. Rotunda, 2008 Selected Standards on Professional Responsibility 165-67 Ch. (2008) (“Chart of Ethics Rule on Disclosure Outside the Organization”).
35331 Model Rules of Prof’l Conduct R. 1.13(b) (2007).
35532 Id. R. 1.13©. This rule and its confidentiality exception is relevant to a government lawyer if that lawyer’s client is an entity (such as a government agency) rather than a particular government official. See infra Part II (discussing government client identity).
35733 Restatement Third of the Law Governing Lawyers §68 (2000).
35934 Id. §79.
36135 Id §68 cmt. c (identifying also a third assumption that clients need to consult lawyers in order to vindicate rights and comply with legal obligations). For an excellent critique of the second empirical assumption, see Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351 (1989).
For clients who might be subject to criminal prosecution, the Fifth and Sixth Amendments to the Constitution also provide additional bases for protecting lawyer-client communications from compelled disclosure.
36 See Legal Ethics Advisory Panel, Okla. Bar Ass’n, Op. 301 (1983), reprinted in [Ethics Opinions 1980-1985] Laws. Man. of Prof. Conduct (ABA/BNA), at 801:7001 (June 25, 1986) (lawyer may not donate papers with client confidences and secrets to libraries without express client consent); Legal Ethics Comm., D.C. Bar, Op. 128 (1983), reprinted in [Ethics Opinions 1980-1985] Laws. Man. of Prof. Conduct (ABA/BNA), at 801:2308 (July 19, 1983) (lawyers may not donate their papers to university archive unless they get clients’ consent or delete from the papers all client confidences and secrets); see also Hobbs, supra note 25, at 200-02; Patrick Shilling, Note, Attorney Papers, History and Confidentiality: A Proposed Amendment to Model Rule 1.6, 69 Fordham L. Rev. 2741, 2751 (2001). Despite this apparent perpetual obligation, some lawyers have donated papers containing confidential client information to archives, apparently breaching confidentiality. See Shilling, supra, at 2757 (D.C. lawyer Joseph Rauh donated his papers to the Library of Congress with the stipulation that if historians or journalists wanted to publish information about living clients or those with active estates, they had to seek clients’ consent).
36537 Hobbs, supra note 25, at 202 (proposing amendment to confidentiality rule so that a lawyer may donate her papers to a library twenty-five years after the client’s death).
36738 (1975) 3 All E.R. 484 (Q.B.).
36939 Id. at 495. The court wrote that
[s]ome secrets require a high standard of protection for a short time. Others require protection until a new political generation has taken over…. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations …. It is evident that there cannot be a single rule governing the publication of such a variety of matters.
Id. at 492, 495.
40 Id. at 496.
37341 Id. (“In less clear cases-and this, in my view, is certainly one-reliance must be placed on the good sense and good taste of the minister or ex-minister concerned.”).
37542 Exec. Order No. 13,292 §§1.5(b), 3.3(a), 3 C.F.R. 196, 198-99, 203 (2003); see id. §3.3(b), 3 C.F.R. at 203 (identifying factors that can rebut the presumption of declassification); id. §4.4(a), 3 C.F.R. at 209-10 (permitting access to classified information by historians as well as former high-level government officials, presumably to assist them in the writing of their memoirs); see also President John F. Kennedy Assassination Records Collection Act of 1992, 44 U.S.C. §2107 (2000). Some previous executive orders have included automatic declassification after varying lengths of time. See, e.g., Exec. Order No. 11,652 §5.A (1972).
37743 See, e.g., Butterworth v. Smith, 494 U.S. 624, 632-33 (1990). In Butterworth, the Supreme Court struck down a Florida statute that imposed a permanent ban on grand jury witnesses’ disclosing their own testimony because
[w]hen an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape—that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other. There is also no longer a need to prevent the importuning of grand jurors since their deliberations will be over.
Id. (footnote call number omitted); see also Brown v. Thompson, 430 F.2d 1214, 1215 (5th Cir. 1970) (privilege preventing discovery of police investigative files “will expire upon the lapse of an unreasonable length of time”).
44 In re Am. Historical Ass’n, 49 F. Supp. 2d 274, 292, 295, 297 (S.D.N.Y. 1999) (stating that some of the justifications for grand jury secrecy-such as protecting grand jury witnesses from retaliation or tampering-“dissolve[]” when the appeals of any convictions are complete, that “fifty years after the proceedings [had] ended … [t]he inhibiting effect of … disclosure is insignificant,” that the public’s interest in establishing an accurate historical record may strengthen over time, and that “[t]he public must acquire, at an appropriate time, a significant, if not compelling, interest in ensuring the pages of history are based upon the fullest possible record”).
38145 In re Am. Historical Ass’n, 49 F. Supp. 2d at 293-94 (granting partial disclosure of grand jury proceedings related to Alger Hiss investigation). See also In re May, 13 Media L. Rep. (BNA) 2198, 2199 (S.D.N.Y. 1987) (granting disclosure thirty-five years after grand jury investigation of William Walter Remington); In re O’Brien, No. 3-90-X-95 (M.D. Tenn. May 16, 1990) (granting disclosure forty-five years after grand jury investigation), cited in In re Am. Historical Ass’n, 49 F. Supp. 2d at 293. But see In re Craig, 131 F.3d 99, 107 (2d Cir. 1997) (denying historian access to 1948 grand jury investigation). Note that similar requests for disclosure of grand jury materials were denied in 1977 in Hiss v. Dep’t of Justice, 441 F. Supp. 69, 71 (S.D.N.Y. 1977) (ruling under the Freedom of Information Act that the historical significance of the Alger Hiss grand jury investigation did not provide an exception to Federal Rule of Criminal Procedure 6(e)’s requirement of grand jury secrecy).
38346 5 U.S.C. §552 (2000).
38547 5 U.S.C. §552a (2000).
38748 5 U.S.C. §552b (2000).
38949 5 U.S.C. app. §§1-16 (2000).
39150 44 U.S.C. §§2201-2207 (2000).
39351 5 U.S.C. §552(a)(1)-(a)(2) (2000).
39552 Id. §552(a)(3), (b).
39753 Id. §552(b).
39954 Id. §552(a)(4)(B) (where a requester appeals an agency’s denial of information “the burden is on the agency to sustain its action”).
40155 President Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), available at http://www.ourdocuments.gov/doc.php?doc=36&page=transcript.
40356 Letter from James Madison to William T. Barry (Aug. 4, 1822), available at http://1stam.umn.edu/main/historic/Madison_letter&uscore;1822.htm (“A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”).
40557 See Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 Wash. U. L.Q. 1, 23-24 (1976); Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U Pa. J. Con. L. (forthcoming 2008) (“[T]he body of the Constitution provides no right to public information. What the Constitutional text omits, the last generation has embedded as a part of modern constitutional practice in the Freedom of Information Act.”).
40758 United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir. 1972) (“[T]he First Amendment limits the extent to which the United States … may impose secrecy requirements upon its employees …. It precludes such restraints with respect to information which is unclassified ….”).
40959 O’Connor, supra note 16, at 130.
41160 See Model Rules of Prof’l Conduct R. 1.13© (2007).
41361 See infra Part II.
41562 Model Rules of Prof’l Conduct R. 1.13(b) (2007).
41763 As a California lawyer, Ossias was bound by the California Business and Professions Code §6068(e)(1), which states that a lawyer must “maintain inviolate the confidence … and … preserve the secrets … of his or her client.” Cal. Bus. & Prof. Code §6068(e)(1) (West Supp. 2007). The statutory duty of confidentiality has an exception for disclosure that “is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” Id. §6068©(2); see also Cal. Rules of Prof’l Conduct R. 3-100(A), (B) (2008) (providing a similar exception and an additional exception when the client gives informed consent). For an extensive discussion of Ossias’s case, see Doskow, supra note 10, at 24-26; see also Radack, supra note 10, at 126, 138-40.
41964 Letter from Donald R. Steedman, Deputy Trial Counsel, State Bar of Cal., to Richard Alan Zitrin, Attorney for Cindy Ossais (Oct. 11, 2000), available at Response by Respondent to Bar Ass’ns Counter Statement at 21-22 app., In re Schafer, No. 00031 (Wash. State Bar Ass’n Dec. 7, 2000), http:// www.dougschafer.com/Response2Bar.pdf. One might argue that the decision of the California bar authorities not to discipline Ossias indicates that government lawyers in California may disclose otherwise confidential information about government wrongdoing. But a decision not to discipline has no precedential value and would provide little comfort for a lawyer seeking definitive guidance on her ethical obligations.
42165 Doskow, supra note 10, at 23. The proposal can be found at http:// www.calbar.ca.gov/calbar/pdfs/rule3-600request.pdf.
42366 State Bar of California, Office of Governmental Affairs, Governor Vetoes Public Attorney Whistleblower Bill, Sacramento Scene, Oct. 4, 2002, at 1, available at http://www.calbar.ca.gov/calbar/pdfs/legis/Newsletter1-37.pdf. The text of the bill is available at http://www.leginfo.ca.gov/pub/01-02/bill/asm/ab_0351-0400/ab_363_bill_20020828_enrolled.html. The veto message is available at http://www.leginfo.ca.gov/pub/01-02/bill/asm/ab_0351-0400/ab_ 363_vt_20020930.html.
42567 For other discussions of the range of possible clients of government lawyers, see Cramton, supra note 10, at 296 (identifying five possible clients of government attorney: public interest, government as a whole, branch of government, agency, and particular officer who makes decisions for agency); Bruce A. Green, Must Government Lawyers “Seek Justice” In Civil Litigation?, 9 Widener J. Pub. L. 235, 266-69 (2000); Joshua Panas, The Miguel Estrada Confirmation Hearings and the Client of a Government Lawyer, 17 Geo. J. Legal Ethics 541 (2004).
Two types of lawyers employed by the government have no client at all because they are not acting as lawyers in a representative capacity: judges, see infra text accompanying note 121, and administrators, such as former Secretary of State Warren Christopher and former Director of Central Intelligence William Webster.
68 Feeney v. Commonwealth, 366 N.E.2d 1262, 1266 (Mass. 1977) (“‘[The Attorney General] also has a common law duty to represent the public interest”’ in his representation of the Commonwealth and specific Commonwealth officers being sued (citing Mass. Gen. Laws ch. 12 §3 (2002)); Sec’y of Admin. & Fin. v. Att’y Gen., 326 N.E.2d 334, 338-39 (Mass. 1975) (same); Barbara Allen Babcock, Defending the Government: Justice and the Civil Division, 23 J. Marshall L. Rev. 181, 185, 190 (1990) (asserting that the government lawyer must serve the public interest as well as a specific agency and the government as a whole); Keith W. Donahoe, Note, The Model Rules and the Government Lawyer, A Sword or Shield? A Response to the D.C. Bar Special Committee on Government Lawyers and The Model Rules of Professional Conduct, 2 Geo. J. Legal Ethics 987, 1000 (1989) (“The client of the government lawyer should be the public interest.”); see also In re Lindsey, 158 F.3d 1263, 1273 (D.C. Cir. 1998) (“Unlike a private practitioner, the loyalties of a government lawyer … cannot and must not lie solely with his or her client agency.”); Superintendent of Ins. v. Att’y Gen., 558 A.2d 1197, 1199-1200, 1202 (Me. 1989) (referring to government lawyers’ representation of “both the public interest and public agencies” in ruling that the state attorney general is not obligated to represent the superintendent of insurance in an action seeking review of a rate order issued by the superintendent).
42969 In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289, 294 (7th Cir. 2002) (refusing to recognize former state secretary of state’s assertion of attorney-client privilege regarding his conversation with lawyers because, inter alia, a government attorney owes “ultimate allegiance” to “public citizens … as represented by the grand jury”); Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d. 533, 538 (Conn. 1978) (“[T]he real client of the attorney general is the people of the state.”); Levitt v. Att’y Gen., 151 A. 171, 174 (Conn. 1930) (state attorney general’s “duty as a lawyer [is] to protect the interest of his client, the people of the state”); Times Publ’g Co. v. Williams, 222 So. 2d 470, 475 (Fla. Dist. Ct. App. 1969) (referring to “the public” as the government lawyer’s “real client” in a case examining the effect of state open meeting laws on confidential government lawyer-client consultations); Humphrey v. McLaren, 402 N.W.2d 535, 540-41, 543 (Minn. 1987) (stating that a government attorney “has for a client the public, a client that includes the general populace even though this client assumes its immediate identity through its various governmental agencies” and ruling that the state attorney general is not disqualified from suing the former head of a state agency because he never represented the head of the agency); W.J. Michael Cody, Special Ethical Duties for Attorneys Who Hold Public Positions, 23 Memphis St. U. L. Rev. 453, 457 (1993) (“the people of the states are [the] clients” of state Attorneys General); Charles Fahy, Special Ethical Problems of Counsel for the Government, 33 Fed. Bar J. 331, 332 (1974) (the government lawyer’s client is “the people as a whole”); Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law & Contemp. Probs., Winter 1998, at 107, 110 (“[T]he government lawyer’s client is seen as being … the U.S. citizenry at large, a client whose ultimate objective is that justice be done.”). But see In re Grand Jury Investigation, 399 F.3d 527, 533-34 (2d Cir. 2005) (rejecting federal government’s assertion that the court should not recognize Connecticut governor’s assertion of attorney-client privilege because a lawyer’s “loyalty to the Governor … must yield to her loyalty to the public, to whom she owes ultimate allegiance when violations of the criminal law are at stake”).
Some have asserted that while the government lawyer may have a more immediate client (such as a government agency), she also represents the public. Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C. Cir. 1983) (asserting in dicta that “government counsel have a higher duty to uphold because their client is not only the agency they represent but also the public at large”); Griffin B. Bell, The Attorney General: The Federal Government’s Chief Lawyer and Chief Litigator, or One Among Many?, 46 Fordham L. Rev. 1049, 1069 (1978) ( “Although our client is the government, in the end we serve a more important constituency: the American people.”); Jack B. Weinstein & Gay A. Crosthwait, Some Reflections on Conflicts Between Government Attorneys and Clients, 1 Touro L. Rev. 1, 4-5 (1985) (“[Government lawyers] represent not only the government entity, but also the public.”); Justin G. Davids, Note, State Attorneys General and the Client-Attorney Relationship: Establishing the Power to Sue State Officers, 38 Colum. J.L. & Soc. Probs. 365, 412 (2005) (“State attorneys general … owe allegiances to two clients—the ‘people’ and the executive officers and agencies.”).
70 Lawry, Wrong Question, supra note 10, at 66 (“[T]he client of the federal government lawyer is the federal government.”); see also James R. Harvey III, Note, Loyalty in Government Litigation: Department of Justice Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569, 1575-76, 1594 (1996) (noting that “the Solicitor General[’s] ... client is most often the government as a whole, or the executive branch in particular, rather than an individual agency”).
43371 Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. Chi. L. Rev. 1293, 1298 (1987) (“[T]he duties of an [executive branch] agency attorney run to the executive branch generally rather than to the agency only…. [T]he attorney’s obligation is most reasonably seen as running to the executive branch as a whole and to the President as its head.”); cf. Babcock, supra note 68, at 185 (asserting that the Justice Department’s client is sometimes “the Congress whose legislation is under attack”).
43572 D.C. Rules of Prof’l Conduct R. 1.6(k) (2007) (stating that “[t]he client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order”); see In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 915-21 (8th Cir. 1997) (asserting that “the White House is the real party in interest in this case” and refusing to recognize attorney-client privilege for a lawyer’s notes of a conversation with then First Lady when they were sought by a federal grand jury); Prof’l Ethics Comm., Fed. Bar Ass’n Op. 73-1 (1973) (“The Government Client and Confidentiality”), in 32 Fed. B.J. 71, 72 (1973) (“[T]he client of the federally employed lawyer … is the agency where he is employed, including those charged with its administration insofar as they are engaged in the conduct of the public business.”); Fed. Bar Ass’n, Model Rules of Prof’l Conduct R. 1.13(a) (1990) (“[A] Government lawyer represents the Federal Agency that employs the Government lawyer.”); D.C. Bar, Report by the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct, reprinted in Wash. Law., Sept.-Oct. 1988, at 53, 54 [hereinafter DC. Bar Report] (“[T]he employing agency should in normal circumstances be considered the client of the government lawyer.”); Cramton, supra note 10, at 298 (“For day-to-day operating purposes, the government lawyer may properly view as his or her client the particular agency by which the lawyer is employed.”).
43773 The Attorney General’s Role as Chief Litigator for the United States, 6 Op. Off. Legal Counsel 47, 54 (1982) (stating that the President is the client of the Attorney General); Bruce E. Fein, Promoting the President’s Policies Through Legal Advocacy: An Ethical Imperative of the Government Attorney, 30 Fed. B. News & J. 406, 406 (1983) (referring to “the incumbent President” as the client of “a government attorney in the Executive Branch”); Harvey, supra note 70, at 1607-12 (suggesting that the President might appropriately be viewed as the client whenever a federal agency is involved in litigation).
As a practical matter, there may not be much difference between identifying the client as an agency and identifying the client as the head of the agency in her official capacity. The latter formulation simply makes explicit who is empowered to make decisions on behalf of the agency. But in certain circumstances, the difference in conception is significant. Lawyers licensed in states that have adopted the new Model Rule 1.13 on entity representation have an additional exception to confidentiality if their client is the agency rather than the individual heading the agency. See Model Rule of Prof’l Conduct 1.13© (2007).
74 See D.C. Rules of Prof’l Conduct R. 1.6 cmt. 39 (2007) (noting that government lawyers may “be assigned to provide an individual with counsel or representation,” such as “a public defender, a government lawyer representing a defendant sued for damages arising out of the performance of the defendant’s government employment, and a military lawyer representing a court-martial defendant”); Legal Ethics Comm., D.C. Bar, Op. 313, available at http:// www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion313.cfm (explaining that a JAG lawyer’s client is an individual defendant rather than the government).
44175 28 C.F.R. §50.15(a) (2007).
44376 Id. §50.15(a)(3) (“Justice Department attorneys who represent an employee under this section also undertake a full and traditional attorney-client relationship with the employee with respect to the attorney-client privilege.”).
44577 Memorandum from Ralph W. Tarr, Acting Assistant Att’y Gen., Office of Legal Counsel, to Ralph K. Willard, Acting Assistant Att’y Gen., Civil Div. 6 (Mar. 29, 1985) (on file with author). This approach-providing only limited confidentiality to a government employee client-may no longer be sustainable. The Tarr memorandum asserts that the United States Constitution’s Supremacy Clause will prevent state bar authorities from disciplining a government lawyer who reveals (non-privileged) information in violation of state legal-ethics rules. Id. at 9 n.7. But in 1998, Congress passed the McDade Amendment, which prohibits the Justice Department from using the Supremacy Clause to opt out of state ethics rules. Act of Oct. 21, 1998, Pub. L. No. 105-277, sec. 101(b), §§801(a), 112 Stat. 2681, 2681-118 (codified at 28 U.S.C. §530B(a) (2000)) (“An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”).
44778 E.g., Ward v. Superior Court, 138 Cal. Rptr. 532, 538 (Cal. Ct. App. 1977) (holding that county counsel represented county rather than former assessor, so there was no conflict of interest in counsel’s defending county in assessor’s defamation action against county); Humphrey v. McLaren, 402 N.W.2d 535, 540-41 (Minn. 1987) (holding that state attorney general represented state agency rather than agency’s executive director, so there was no conflict of interest when attorney general sued executive director for misuse of public funds).
44979 Model Rules of Prof’l Conduct R. 1.13 (2007) (organization as client).
45180 But see D.C. Rules of Prof’l Conduct R. 1.6(k) (2007) (asserting that the government lawyer’s client is the agency that employs the lawyer).
45381 Cf. Roberts v. City of Palmdale, 5 Cal. 4th 363, 380 n.5 (1993) (rejecting resident’s assertion that “because the city attorney has a duty to serve the public, she is the client of the city attorney as a member of the public and has the authority to waive the privilege”).
45582 Model Rules of Prof’l Conduct R. 1.13© (2007); see discussion supra notes 30-32 and accompanying text.
45783 As a practical matter, the key difference between conceiving of the client as a government agency rather than as the head of the government agency in his official capacity is the Model Rule 1.13 duty to protect entity clients from disloyal agents. See Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005). In Ross, a city was being sued for alleged civil rights violations by its police force. The court ruled that the city could assert attorney-client privilege even though the former police director (a co-defendant) purported to waive the privilege by defending on the basis of the legal advice he received. Id. at 603. As long as the city rather than the police director was the client, the city could maintain the privilege. Id. at 605-06.
45984 But see Haw. Rules of Prof’l Conduct R. 1.6©(4)-(5) (2007) (permitting government lawyers licensed in Hawaii to make such disclosures).
46185 Lawry, Wrong Question, supra note 10; Lawry, Confidences, supra note 10. The American Bar Association adopted its Model Rules of Professional Conduct, including Model Rule 1.13 on entity clients, in 1983. See Model Rules of Prof’l Conduct preface (2007).
Steven Berenson has also argued that identifying the government lawyer’s client is unnecessary. Steven K. Berenson, Hard Bargaining on Behalf of the Government Tortfeasor: A Study in Governmental Lawyer Ethics, 56 Case W. Res. L. Rev. 345, 364 (2005) (“[C]hoosing a single client from among the many possibilities mentioned above would be arbitrary ….”). He suggests that government lawyers should instead “seek guidance from a wide range of the sources … [and] serve a mediating function in considering how to incorporate those views in the representation.” Id. But this approach would often result in indeterminacy.
86 Lawry, Confidences, supra note 10, at 631 (“The primary reason this is the wrong question is that the answer to it does not automatically answer other, separate questions of immense practical importance, not least of which is the question of confidentiality.”).
46587 Senator Patrick Leahy asserted that the memoranda John Roberts wrote when he was at the Solicitor General’s office were not subject to attorney-client privilege because “[t]hose working in the solicitor general’s office are not working for the president. They’re working for you and me, and all the American people.” Interview by George Stephanopolous with Sen. Patrick Leahy (July 24, 2005) (transcript available at http:// blog.washingtonpost.com/campaignforthecourt/2005/07/talk_shows_leah.html).
46788 Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B.C. L. Rev. 789 (2000) [hereinafter Berenson, Public Lawyers]; see also Berenson, supra note 10.
46989 See Prof’l Ethics Comm., Fed Bar Ass’n, Op 73-1 (1973) (“The Government Client and Confidentiality”) in 32 Fed. B.J. 71, 72 (1973) (“[W]e do not suggest … that the public is the client as the client concept is usually understood.”); see also D.C. Bar Report, supra note 72, at 54 (concluding “that ‘the public interest’ was an unworkable ethical guideline” and that “the ‘public interest’ [is] too amorphous a standard to have practical utility in regulating lawyer conduct”); Cramton, supra note 10, at 298 (noting that “conceptions of the ‘public interest’ vary significantly from one person to the next” and that “defining the government lawyer’s client as the public interest would fail to provide any real guidance in regulating lawyers’ conduct”); Harvey, supra note 70, at 1601 (“The public interest model … allows unelected officials to substitute their judgment for that of an agency.”); Miller, supra note 10, at 1294-95 (“[T]he notion that government attorneys represent some transcendental ‘public interest’ is, I believe, incoherent…. [T]here are as many ideas of the ‘public interest’ as there are people who think about the subject.”).
On the other hand, certain government lawyers have client-like decision-making authority, such as whether to bring or settle a lawsuit and whether to appeal an adverse court decision. If a lawyer does have this client-like authority, she can appropriately consider the public interest in making such decisions. See discussion infra Part II.C.
90 See Lawry, Wrong Question, supra note 10, at 66 (“[T]he client of the federal government lawyer is the federal government.”); see also Harvey, supra note 70, at 1575-76 (regarding the Solicitor General in particular). But in a longer article published just a year later, Lawry asserts that “‘[t]he client for the federal government lawyer is the head of the agency or department or the head of the public or quasi-public body to which the lawyer is currently attached ….” Lawry, Confidences, supra note 10, at 644.
47391 Miller, supra note 10, at 1296 (“The notion … that an agency attorney serves the government as a whole is misplaced.”).
47592 Id. (“In a system of checks and balances it is not the responsibility of an [executive branch] attorney to represent the interests of Congress or the Court. Those [branches] have their own ‘constitutional means and personal motives’ to protect their prerogatives.” (footnote call number omitted)); see also D.C. Bar Report, supra note 72, at 55 (“The identification of one’s client as the entire government would raise serious questions regarding client control and confidentiality. For example, without some focus of responsibility, each government lawyer would be free to perform as he or she saw fit, subject only to the practical constraint of internal agency discipline.”).
47793 D.C. Bar Report, supra note 72, at 55; see also Prof’l Ethics Comm., Fed. Bar Ass’n, Op. 73-1 (1973), in 32 Fed. B.J. 71 (1973).
47994 See Restatement Third of the Law Governing Lawyers §97 cmt. c (“No universal definition of the client of a governmental lawyer is possible.”); Harvey, supra note 70, at 1615-16 (“[N]o one model completely describes Department loyalty…. The varied facts and forces that operate in each case of representation make a single model inappropriate for describing the loyalty relationship.”); see also Lawry, Wrong Question, supra note 10, at 62-63; Lawry, Confidences, supra note 10, at 631-32 (noting that the question of client identity also depends on the particular question being asked: confidentiality, conflict of interest, or whether the government lawyer must do what the particular government official has instructed).
48195 See Gray v. R.I. Dep’t of Children, Youth and Families, 937 F. Supp. 153, 157 (D.R.I. 1996) (“[A]scertaining who the client really is can be a complex affair when a governmental entity is involved.”); United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 617 (D.D.C. 1979) (adopting a contextualized approach to identifying the government lawyer’s client, indicating that the client can be more than one government agency “if the two agencies have a substantial identity of legal interest in a particular matter”).
48396 In re Grand Jury Subpoena, 886 F.2d 135, 137-38 (6th Cir. 1989).
48597 Id. at 138-39.
48798 Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998).
48999 Id. at 357-58.
491100 Civil Serv. Comm’n v. Superior Court, 209 Cal. Rptr. 159, 164 (Cal. Ct. App. 1985) (“We … accept the general proposition that a public attorney’s advising of a constituent public agency does not give rise to an attorney-client relationship separate and distinct from the attorney’s relationship to the overall governmental entity of which the agency is a part.”).
493101 Id. The court further states that
an exception must be recognized when the agency lawfully functions independently of the overall entity. Where an attorney advises or represents a public agency with respect to a matter as to which the agency possesses independent authority, such that a dispute over the matter may result in litigation between the agency and the overall entity, a distinct attorney-client relationship with the agency is created.
Id.
102 Id. The court states:
Here, ... the conflict between the Department of Social Services and the Commission cannot be resolved in the usual manner because the County Charter gives the Commission authority independent of the County’s normal hierarchical structure. The Board of Supervisors has been forced to sue the Commission in an attempt to overturn its rulings.
Id.
103 Id. at 164, 167 (disqualifying county counsel from representing county in litigation against commission). For further discussion of this case, see Solomon, supra note 10, at 274-75.
499104 Gray v. R.I. Dep’t of Children, Youth and Families, 937 F. Supp. 153 (D.R.I. 1996).
501105 Id. at 160 (noting that government agencies’ “interests are quite often conflicting or divergent”).
503106 See id. at 156-58 (applying the Rhode Island Code of Ethics (1990) and citing R.I. Gen. Laws §36-14-5(e)(2)).
505107 Id. (citing 18 U.S.C. §205(a)(2) (2000)).
507108 Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276, 282-89 (S.D.N.Y. 2001) (refusing to disqualify the law firm from representing a tobacco company being sued by the state). See discussion of this case in Patricia E. Salkin, Beware: What You Say to Your [Government] Lawyer May BeHeld Against You—The Erosion of Government Attorney-Client Confidentiality, 35 Urb. Law. 283, 292(2003).
509109 Cameron County v. Hinojosa, 760 S.W.2d 742, 745-46 (Tex. App. 1988).
511110 See id. Compare the Texas court’s approach in Hinojosa, 760 S.W.2d at 746, with the California court’s approach in Civil Serv. Comm’n v. Superior Court, 209 Cal. Rptr. 159, 163-67 (Cal. Ct. App. 1985).
513111 See, e.g., Miller, supra note 10, at 1298 (asserting that “the [executive branch] attorney’s obligation is most reasonably seen as running to the executive branch as a whole and to the President as its head”); Paulsen, supra note 11, at 487 (“[A]s a matter of the constitutive law of the legal entity in question … an attorney working for an agency within the executive branch represents … the executive branch.”).
515112 See, e.g., Peter L. Strauss, Overseer, or “The Decider” ? The President in Administrative Law, 75 Geo. Wash. L. Rev. (2007).
517113 But cf. Lawry, Wrong Question, supra note 10, at 67. Lawry states:
[C]alling the agency the “client” only confuses … sound policy, for it is never the case that the matter cannot be pursued by the individual lawyer at least to the Attorney General or Justice Department level. If the lawyer is working in the Executive Branch, the process may not stop until it reaches the President himself.
Id.
114 In a few cases, lawyers work for individual commissioners rather than the commission as a whole. In those cases, the client is the individual commissioner in his official capacity.
521115 28 U.S.C. §516 (2000) (“[T]he conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice ….”).
523116 By contrast, the D.C. Rules of Professional Conduct assert that “[t]he client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.” D.C. Rules of Prof’l Conduct R. 1.6(k) (2007). This would make the Justice Department lawyer’s client the Justice Department.
525117 See infra Part I.C (discussing lawyers with client-like authority to make decisions). Under the former Independent Counsel statute, Independent Counsels had the same authority as the U.S. Attorney General. 28 U.S.C. §594(a) (2000). The statute provides that
an independent counsel appointed … shall have, with respect to all matters in such independent counsel’s prosecutorial jurisdiction … full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice ….
Id.
118 Kathleen Clark, The Ethics of Representing Elected Representatives, 61 Law & Contemp. Probs., Spring 1998, at 31, 36-37.
529119 See Matthew Eric Glassman, Cong. Research Serv., Office of Legislative Counsel: Senate (2007), available at http:// www.senate.gov/reference/resources/pdf/RS20856.pdf. These lawyers are required “to maintain the attorney-client relationship with respect to any communications with Senators or staff.” Id. at 2.
531120 Charles Tiefer, The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client, 61 Law & Contemp. Probs., Spring 1998, at 47, 56-62.
533121 Cf. Comment, The Law Clerk’s Duty of Confidentiality, 129 U. Pa. L. Rev. 1230, 1247 (1981) (asserting that a clerk’s putative client would be the court rather than the individual judge, based on Prof’l Ethics Comm., Fed. Bar Ass’n, Op. 73-1 (1973) (identifying a government lawyer’s client as the employing agency)).
535122 See Edward P. Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998).
537123 See, e.g., Richard W. Painter, A Law Clerk Betrays the Supreme Court, Wall St. J., Apr. 13, 1998, at A23; Gretchen Craft Rubin, Betraying a Trust, Wash. Post, June 17, 1998, at A27.
539124 See, e.g., Alex Kozinski, Conduct Unbecoming, 108 Yale L.J. 835, 843-46 (1999); Richard W. Painter, Open Chambers?, 97 Mich. L. Rev. 1430, 1435 (1999).
541125 See Erwin Chemerinsky, Opening Closed Chambers, 108 Yale L.J. 1087, 1100 (1999) (“[T]he attorney-client relationship is not analogous to the clerk-Justice relationship.”).
543126 Ross v. City of Memphis, 423 F.3d 596, 605 (6th Cir. 2005) (“[G]enerally in conversations between municipal officials and the municipality’s counsel, the municipality, not any individual officers, is the client.”).
545127 See Humphrey v. McLaren, 402 N.W.2d 535, 543 (Minn. 1987) (“[I]n the public attorney-public client relationship, there is a quality of disinterested interest not usually found in the private sector.”).
547128 Compare a discussion of “runaway” grand juries in Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).
549129 MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2007) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued.”).
551130 For an example of a state rejecting this type of trustee-like power for an attorney general, see State ex rel. Amerland v. Hagan, 175 N.W. 372, 374 (N.D. 1919) (“[T]he Attorney General . . . [does not] step[] into the shoes of such client in wholly directing the defense and the legal steps to be taken in opposition or contrary to the wishes and demands of his client or the officer or department concerned.”), overruled on other grounds by Benson v. N.D. Workmen’s Comp. Bureau, 283 N.W.2d 96, 107 (N.D. 1979).
553131 Model Rule 1.2(a) states: “A lawyer shall abide by a client’s decision whether to settle a matter.” MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2007).
555132 Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 709 (2005) (noting that the U.S. Solicitor General files petitions for certiorari in “less than ten to twenty percent” of cases in which federal agencies and department want Supreme Court review of lower court decisions and “turns down . . . the overwhelming majority of [agency] requests for authorization to seek rehearing en banc” and “two to three times per year” confesses error, “abandoning the government’s victory in a lower court . . . [i]f [his] own analysis disagrees with the judgment of the lower court that sustained the government’s position”). In some cases where the government has confessed error, the court has appointed amicus curiae to argue in favor of the judgment below. See id. at 719 n.130.
557133 Nancy V. Baker, The Attorney General as a Legal Policy-Maker: Conflicting Loyalties, in
GOVERNMENT LAWYERS: THE FEDERAL LEGAL BUREAUCRACY AND PRESIDENTIAL POLITICS 44 (Cornell W. Clayton ed., 1995). After a Dallas policeman received a light sentence from a state court jury for killing a 12-year-old Hispanic boy, President Carter wanted his Justice Department to bring a federal civil rights prosecution against the policeman. Attorney General Griffin Bell refused and told the President, “You can’t tell me who to prosecute. You delegated the prosecutorial discretion to me. I have to exercise it. But you can get rid of me.” Id. See also Green, supra note 67, at 238 (“Unlike most other lawyers, prosecutors cannot look to a client, or the client’s representative, to decide how to carry out this objective [to seek justice].”).
134 Cooley v. S.C. Tax Comm’n, 28 S.E.2d 445, 449–511 (S.C. 1943).
561135 Feeney v. Commonwealth, 366 N.E.2d 1262, 1264, 1266–67 (Mass. 1977).
563136 Id. at 1266.
565137 Sec’y of Admin. & Finance v. Att’y Gen., 326 N.E.2d 334, 336 (Mass.
1975) (rejecting the secretary’s argument that he had a traditional attorney-client relationship with the attorney general, which would allow the secretary to decide whether to appeal).
138 28 U.S.C. § 516 (2000).
569139 Harvey, supra note 70, at 1573. The division of responsibility between the Justice Department lawyer and the “client” agency deserves a closer empirical look. See Wald, supra note 69, at 118 (describing a court-initiated mediation program under which the mediator can “request that agency representatives attend the mediation sessions if it appeared that it was the lawyer—and not the agency—who was resistant to settlement and to communicate offers directly to those representatives (with prior notice to government counsel)”).
571140 Role of the Solicitor General, 1 Op. Off. Legal Counsel 228, 230 (1977). It is significant that this opinion puts “clients” within quotation marks. See id. The opinion appears to be referring to individual agencies’ officeholders who have preferences regarding particular legal disputes. It is more accurate to assert that the Solicitor General’s client is the entire executive branch, and that these individual agencies or officeholders may have parochial interests that must be subjugated to the more wide-ranging interests of the executive branch, both laterally across the branch and across time. See Pillard, supra note 132, at 729 (noting that “the SG considers the impact of any given litigation position both across the government as a whole and over time”).
573141 Congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3 (codified as amended at 2 U.S.C. § 1301 et. seq. (2000)).
575142 2 U.S.C. § 1415(a) (2000).
577143 John Bresnahan, Supreme Court Case Pits Senate Lawyer Against Senate Lawyer, POLITICO, Apr. 2, 2007, http://www.politico.com/news/stories/0407/3392.html.
579144 Office of Sen. Mark Dayton v. Hanson, 127 S. Ct. 2018 (2007).
581145 Brief for Appellant at 23–47, Office of Sen. Mark Dayton v. Hanson, 127 S. Ct. 2018 (2007) (No. 06-618), 2007 WL 621862, available at http://www.abanet.org/publiced/preview/briefs/pdfs/06-07/06-618_Petitioner.pdf.
583146 Brief for the United States Senate as Amicus Curiae Supporting Appellee at 19–30, Office of Sen. Mark Dayton v. Hanson, 127 S. Ct. 2018 (2007) (No. 06-618), 2007 WL 1022679.
585147 Brief for Appellant, supra note 145, at 16–22.
587148 Brief for the United States Senate as Amicus Curiae Supporting the Appellee, supra note 146, at 17 (noting that “[t]he employing office is nothing more than an administrative unit of the Senate; it is the Senate that provides the resources for the vigorous defense of suits and for the payment of judgments” (footnote omitted)).
589149 Transcript of Oral Argument at 4, Office of Sen. Mark Dayton v. Hanson, 127 S. Ct. 2018 (2007) (No. 06-618), 2007 WL 1198567 (Senate Chief Counsel for Employment arguing that the Supreme Court does not defer to Congress’s own interpretation of the speech and debate clause because “Congress of course is a political body . . . that . . . will make decisions that are politically expedient . . . , which means that over time their decisions can change”).
591150 William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2455–61 (2006); Davids, supra note 69, at 371–73, 399–400.
593151 EPA v. Pollution Control Bd., 372 N.E.2d 50, 53 (Ill. 1977).
595152 Id. at 52–53 (“[A]lthough an attorney-client relationship exists between a State agency and the Attorney General, it cannot be said that the role of the Attorney General apropos of a State agency is precisely akin to the traditional role of private counsel apropos of a client.”); see also Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d. 533, 537–38 (Conn. 1978).
597153 See, e.g., Conn. Comm’n, 387 A.2d. at 537 (finding that the state attorney general was not “guilty of any professional impropriety” when his office represented both plaintiff and defendant in a lawsuit); Pollution Control Bd., 372 N.E.2d at 53 (“[T]he Attorney General may represent opposing State agencies in a dispute” when the Attorney General is not an actual party to the dispute); see also Scott v. Cadagin, 358 N.E.2d 1125, 1128–29 (Ill. 1976) (permitting attorney general to withdraw from representation of state commission and represent government department that was intervening and opposing commission); State ex rel. Allain v Miss. Pub. Serv. Comm’n, 418 So. 2d 779, 782, 784 (Miss. 1982) (permitting attorney general to intervene in lawsuit and challenge rate increase approved by public service commission, even though a member of his office represented commission and acknowledging that attorney general “will be confronted with many instances where he must, through his office, furnish legal counsel to two or more agencies with conflicting interest or views”).
599154 See, e.g., People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1129–31 (Colo. 2003) (attorney general can sue secretary of state regarding constitutionality of congressional redistricting); People ex rel. Scott v. Ill. Racing Bd., 301 N.E.2d 285, 288–89 (Ill. 1973) (attorney general could sue Racing Board seeking review of its decision to grant licenses); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 868 (Ky. Ct. App. 1974) (attorney general’s “constitutional, statutory and common law powers include the power to initiate a suit” against a state agency challenging the constitutionality of a statute); Superintendent Of Ins. v. Att’y Gen., 558 A.2d 1197, 1204 (Me. 1989) (“[W]hen the Attorney General disagrees with a state agency, he is not disqualified from participating in a suit affecting the public interest merely because members of his staff had previously provided representation to the agency at the administrative stage of the proceedings.”); State ex rel. Olsen v. Pub. Serv. Comm’n, 283 P.2d 594, 600 (Mont. 1955) (attorney general can sue public service commission challenging its approval of a telephone rate hike, even though he “is the attorney for the commission”). But see People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1207–11 (Cal. 1981) (attorney general cannot sue State Personnel Board where lawyers in his office had previously advised Board on same issue); Reiter v. Wallgreen, 184 P.2d 571, 575 (Wash. 1947). The Reiter court stated:
bq.[The Attorney General’s] paramount duty is . . . the protection of the interest of the people of the state, and, where he is cognizant of violations of the Constitution or the statutes by a state officer, his duty is to obstruct and not to assist, and, where the interests of the public are antagonistic to those of state officers, or where state officers may conflict among themselves, it is impossible and improper for the Attorney General to defend such state officers.
Id. (quoting State ex rel. Dunbar v. State Bd. of Equalization, 249 P. 996, 999 (Wash. 1926)).
155 See Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850, 862 (W. Va. 1995) (citing Manchin v. Browning, 296 S.E.2d 909, 920 (W. Va. 1982)) (“[T]here [is] a traditional attorney-client relationship between the Attorney General and the state officer he represents.”); State ex rel. Caryl v. MacQueen, 385 S.E.2d 646, 649 (W. Va. 1989) (“[T]he relationship between the Attorney General and the Tax Commissioner is clearly one of an attorney to his client and shall be treated as such by the Attorney General with regard to the confidentiality of the information.” (footnote call number omitted)); Manchin v. Browning, 296 S.E.2d 909, 920 (W. Va. 1982) (“The Legislature has thus created a traditional attorney-client relationship between the Attorney General and the state officers he is required to represent.”); see also Deukmejian, 624 P.2d at 1207–11.
603156 See, e.g., McGraw, 461 S.E.2d at 862 (“[T]he role of the Attorney General ‘is not to make public policy in his own right on behalf of the state[,]’ but rather ‘to exercise his skill as the state’s chief lawyer to zealously advocate and defend the policy position of the officer or agency in the litigation’ . . . .” (quoting Manchin, 296 S.E.2d at 920)); see also York v. Penn. Pub. Util. Comm’n, 295 A.2d 825, 832 (Pa. 1972) (prohibiting attorney general from arguing against decision made by state agency and stating that “boards and commissions are given authority to make decisions which involve . . . conclusions of law. . . . The legislature provided for the review of these decisions by courts . . . . Appeals from these decisions are not to the attorney general.” (internal quotation marks omitted)).
605157.Deukmejian, 624 P.2d at 1209 (rejecting the attorney general’s contention that he “may determine, contrary to the views of the Governor, wherein lies the public interest”); Motor Club of Iowa v. Dep’t of Transp., 251 N.W.2d 510, 514 (Iowa 1977) (attorney general’s role is “to defend the department, not to assert his vision of state interest”); see Solomon, supra note 10, at 323 (extensively discussing Deukmejian, 624 P.2d 1206); see also Miller, supra note 10, at 54 (arguing against consideration of public interest). But cf. Davids, supra note 69, at 373–74 (asserting that some lawyers have as a client the public interest).
607158 Hill v. Tex. Water Quality Bd., 568 S.W.2d 738, 739 (Tex. Civ. App. 1978). The court ruled that a state statute required the attorney general to represent the agency and to supervise any lawyer working for the agency. Thus, allowing the attorney general to sue the agency “would put him on both sides of the lawsuit.” Id. at 741. This and other cases concerning the Texas Attorney General’s authority are discussed extensively in Bill Aleshire, Note, The Texas Attorney General: Attorney or General?, 20 REV. LITIG. 187 (2000).
609159 Tex. Water Quality Bd., 568 S.W.2d at 741. But see Davids, supra note 69, at 401 (criticizing courts that prioritize application of the ethics rules to state attorneys general rather than focusing on the attorney generals’ roles within state governments).
611160 Yes on Measure A v. City of Lake Forest, 70 Cal. Rptr. 2d 517, 518 n.2 (Cal. Ct. App. 1997) (noting that the brief of the Fair Political Practices Commission states that the “‘position taken in this brief is that of the General Counsel and the Legal Division of the agency’” and that the issue “‘ha[d] not been presented to the Commission for a formal discussion and vote’”).
613161 United States v. Providence Journal Co., 485 U.S. 693 (1988) (special prosecutor did not have authority to seek certiorari against wishes of Solicitor General).
615162 Manchin v. Browning, 296 S.E.2d 909, 912–13 (W. Va. 1982). The West Virginia Supreme Court acknowledged that when the attorney general pursues litigation in his own name (rather than on behalf of a particular state official), he is free to pursue the public interest as he sees it. Id. at 918.
617163 Id. at 912–13, 923.
619164 Miller, supra note 10, at 1294–95. Bruce Green has characterized the “public interest” approach this way: “In this conception, . . . as a practical matter, the lawyer has no client and is not in an attorney-client relationship. . . . [T]he lawyer essentially has a roving commission to do what, in the exercise of professional judgment, seems best to serve the public.” Green, supra note 67, at 267–68.
621165 Former Attorney General Francis Biddle asserted that the Solicitor General “stands in his client’s shoes,” and that “the client has no say in the matter.” FRANCIS BIDDLE, IN BRIEF AUTHORITY
97(1962), quoted in Role of the Solicitor General, 1 Op. Off. Legal Counsel 228, 230 (1977).
166 In re Witness Before Special Grand Jury 2000–2, 288 F.3d 289, 294 (7th Cir. 2002) (“Public officials . . . exercise the power of the state . . . [and have] the responsibility to act in the public interest.”); Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d. 533,
538(Conn. 1978); EPA v. Pollution Control Bd., 372 N.E.2d 50, 53 (Ill. 1977) (noting that the state attorney general represents not only “the particular interests of State agencies,” but also “the broader interests of the State”); Humphrey v. McLaren, 402 N.W.2d 535, 543 (Minn. 1987) (“[A] government litigator must take positions with the common public good in mind, unlike the private practitioner who seeks vindication of a particular result for a particular client.”).
167 D’Amico v. Bd. of Med. Exam’rs, 11 Cal. 3d 1, 16, (Cal. 1974) (rejecting idea that the public interest is unrepresented when state attorney general makes concession in litigation).
627168 For a rather prescient prediction of how the role of a state attorney general would expand to include protection of the public interest, see William J. Baxley, The State’s Attorney, 25 ALA. L. REV. 19, 21 (1972) (predicting that the state attorney general “in the year 2000 will find himself more the ‘people’s lawyer’ than the state’s lawyer . . . . He will be somewhat of an ‘ombudsman’—a person who is a buffer between the citizen and his government and whose ultimate allegiance is to the people-at-large.”).
629169 Robert Flannigan, The Fiduciary Obligation, 9 OXFORD J. LEGAL STUD. 285, 311–13 (1989).
631170 Berger v. United States, 295 U.S. 78, 88 (1935).
633171 Brady v. Maryland, 373 U.S. 83, 87–88 (1963). Model Rule 3.8(d) requires prosecutors to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. MODEL RULES OF PROF’L CONDUCT R. 3.8(d) (2007). Some scholars have argued that prosecutors can best seek justice by scrupulously following the specific procedures required of them rather than by attempting to implement a more inchoate notion of “justice” in particular cases. Fred C. Zacharias & Bruce A. Green, The Uniqueness of Federal Prosecutors, 88 GEO. L.J. 207 (2000).
635172 This quotation from former Solicitor General Lehmann is inscribed in the Rotunda of the Justice Department building. See Janet Reno, Indigent Defense: Legal Service for Poor Needs Vigilance, CHAMPION, May 1998, at 32, available at http://www.nacdl.org/CHAMPION/ARTICLES/ 98may05.htm; see also Pillard, supra note 132, at 723 (identifying the quote’s author as former Solicitor General Frederick W. Lehmann).
637173 Berger, 295 U.S. at 88.
639174 See Green, supra note 67, at 277 (persuasively arguing that government civil litigators— particularly those who “act as surrogate[s] of the client”—should seek justice); see also People ex rel. Clancy v. Superior Court, 705 P.2d 347, 350–53 (Cal. 1985) (disqualifying lawyer hired by a city to handle abatement action on contingent fee basis). In Clancy, the California Supreme Court declared that a prosecutor is a representative of the sovereign; he must act with the impartiality required of those who govern. . . . [This duty is] not limited to criminal prosecutors: A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record . . . . Id. at 350 (internal quotation marks omitted).
641175 City of Los Angeles v. Decker, 558 P.2d 545, 551 (Cal. 1977) (holding that the duty of a government attorney in an eminent domain action includes developing full and fair record to arrive at just compensation and reversing compensation award because city attorney withheld from jury information about land’s commercial use and its value); see also MODEL CODE OF PROF’L RESPONSIBILITY EC 7–14 (1980) (“A government lawyer in a civil action . . . has the responsibility to seek justice and to develop a full and fair record . . . .”).
643176 Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 ME. L. REV. 155 (1966) (describing his rejection of a proposed settlement compensating unrepresented elderly couple with consideration worth only a third of assessor’s valuation of land and paying couple more than they requested); Weinstein & Crosthwait, supra note 69, at 6–7 (same).
645177.Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992); Douglas v. Donovan, 704 F.2d 1276, 1279–80 (D.C. Cir. 1983); Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C. Cir. 1983). Judge Abner Mikva wrote each of these decisions.
647178 Berenson, Public Lawyers, supra note 88, at 794; see also Berenson, supra note 10.
649179 Freeport-McMoRan Oil, 962 F.2d at 47.
651180 Id. at 48. In Douglas v. Donovan, while the court wrote that “government attorneys . . . have special responsibilities to both this court and the public at large,” it admonished both the government and the private lawyer for failing to inform the court that the underlying dispute had been settled and therefore the case was moot. 704 F.2d 1276, 1279–80 (D.C. Cir. 1983). In Gray Panthers v. Schweiker, while the court wrote that “[t]here is, indeed, much to suggest that government counsel have a higher duty to uphold because their client is not only the agency they represent but also the public at large,” it directed the district court to consider a form of written notice for entitlement to a hearing that the government had only recently submitted, even though it had “been circulating within the Department for many years.” 716 F.2d 23, 23 (D.C. Cir. 1983).
653181 Miller, supra note 10, at 1294 (“[T]he notion that government attorneys represent some transcendental ‘public interest’ is, I believe, incoherent.”); see also William Josephson & Russell Pearce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict? , 29 HOW. L.J. 539, 564 (1986) (“The government lawyer who uses the public interest approach . . . is not a lawyer representing a client but a lawyer representing herself.”); Lanctot, supra note 10, at 975 (criticizing the public interest approach as anti-democratic).
655182 HAW. RULES OF PROF’L CONDUCT R. 1.6©(4)–(5) (2007).
657183 Miller, supra note 10, at 1295. Miller writes:
bq.Although the public interest as a reified concept may not be ascertainable, the Constitution establishes procedures for approximating that ideal through election, appointment, confirmation, and legislation. Nothing systemic empowers government lawyers to substitute their individual conceptions of the good for the priorities and objectives established through these governmental processes.
Id. Similarly, at least one Justice Department opinion has reduced the “do justice” command to requiring that a government lawyer act in accordance with the law. Role of the Solicitor General, 1 Op. Off. Legal Counsel 228, 232 (1977) (asserting that Solicitor General “must ‘do justice’—that is, he must discharge his office in accordance with law and ensure that improper concerns do not influence the presentation of the Government’s case in the Supreme Court”).
184 See infra Part III.
661185 Miller, supra note 10, at 1298.
663186 California Rule of Professional Conduct 3-600(B) states that if a lawyer CAL. RULES OF PROF’L CONDUCT R. 3-600(B) (2008). In contrast, Model Rule 1.13© permits an entity lawyer to disclose otherwise confidential information if “the highest authority that can act on behalf of the [entity] insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law.” MODEL RULES OF PROF’L CONDUCT R. 1.13© (2007).
665187 California Rule of Professional Conduct 3-600(B) states that the entity lawyer who knows of wrongdoing may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others:
bq.(1) Urging reconsideration of the matter while explaining its likely consequences to the organization; or (2) Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization.
CAL. RULES OF PROF’L CONDUCT R. 3-600(B) (2007). In contrast, Model Rule 1.13(b) requires an entity lawyer in such circumstances to “refer the matter to higher authority in the organization.” MODEL RULES OF PROF’L CONDUCT R. 1.13(b) (2007).
188 Cramton, supra note 10, at 294 (referring to the “pervasive regulations [that] govern much of the information with which a government lawyer must necessarily deal”).
669189 5 U.S.C. § 552a(a)(8)(B)(iv) (2000).
671190 Id. § 552(a)(1)–(2).
673191 Id. § 552(a)(3).
675192 Id. § 552(b).
677193 Haw. Rules of Prof’l Conduct R. 1.6©(4) (2007).
679194 Id. R. 1.6©(5).
681195 One finds in the scholarly literature an undertheorized intuition that government lawyers should be able to disclose government wrongdoing. See, e.g., Comment, supra note 121, at 1260-61 (proposing a confidentiality rule for judicial clerks, with an exception for “specific wrongdoing”).
683196 Model Rules of Prof’l Conduct R. 4.2 (2007).
685197 See generally Jane Mayer, Lost in the Jihad, New Yorker, Mar. 10, 2003, at 50. For an excellent analysis of Radack’s situation using insights from rational-choice theory and psychology, see David McGowan, Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment, 20 Geo. J. Legal Ethics 1057, 1058-70 (2007) (asserting that a rational actor in Radack’s position would not conclude that the Justice Department failed to disclose the emails to the federal district court).
687198 H.R. Con. Res. 175, 85th Cong. July 11, 1958, 72 Stat. B12 (1958) ( “[I]t is the sense of the Congress that the following Code of Ethics should be adhered to by all Government employees …. Expose corruption wherever discovered.”). But cf. Kenneth W. Dam, The Special Responsibilities of Lawyers in the Executive Branch, 55 Chi. Bar Rec. 4, 8 (1974) (asserting that this Concurrent Procedure should not “be regarded as having the force of law [because] the legislative history itself states that it ‘creates no new law”’).
689199 Robert T. Begg, Whistleblower Law and Ethics, in Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients, and Public Officials 156, 161, 168 (Patricia E. Salkin ed., 1999) [hereinafter Ethical Standards] (asserting that forty-six states and “even some local governments” have adopted whistleblower protection statutes); Radack, supra note 10, at 136 (asserting that thirty-eight states have adopted whistleblower protection for government employees). See generally Daniel P. Westman & Nancy M. Modesitt, Whistleblowing: The Law of Retaliatory Discharge (2d ed. 2004).
691200 5 U.S.C. §2302(b)(8)(A)(i)-(ii) (2000). The statute provides protection to current employees, former employees, and applicants. 5 U.S.C. §1221(a) (2000). For an excellent discussion of the federal Whistleblower Protection Act and its history, see Begg, supra note 199, in Ethical Standards, supra note 199, at 156.
693201 5 U.S.C. §2302(a)(2)(B) (2000).
695202 5 U.S.C. §2302(a)(2)(C)(ii) (2000). Congress has passed legislation providing limited whistleblower protection to intelligence agency employees and military service members who disclose information to members of Congress. Intelligence Community Whistleblower Protection Act of 1998 §702(b), Pub. L. No. 105-272, 112 Stat. 2413 (codified at Inspector General Act of 1978, 5 U.S.C. app. §8H); Military Whistleblower Protection Act, 10 U.S.C. §1034 (2000); see also Louis Fisher, Cong. Research Serv., National Security Whistleblowers (2005). Rep. Waxman has introduced legislation that would provide additional whistleblower protection to employees of these agencies who disclose information to an agency Inspector General or to certain members of Congress. Whistleblower Protection Enhancement Act of 2007, H.R. 985, 110th Cong. §10(a) (2007).
697203 5 U.S.C. §2302(a)(2)(C) (2000) (defining the statute’s coverage as executive-branch agencies and the Government Printing Office). Senator Grassley has introduced legislation that would provide some whistleblower protection to legislative-branch employees. See Congressional Whistleblower Protection Act of 2007, S. 508, 110th Cong. (2007).
699204 If the employee is disclosing information the disclosure of which is “specifically prohibited by law,” including information that is “specifically required by Executive order to be kept secret,” then the employee will be protected from retaliation only if he discloses the information to an agency Inspector General, to the Special Counsel, or to another official designated by the agency head. Otherwise, the employee is not protected against retaliation. 5 U.S.C. §2302(b)(8)(A)-(B) (2000); see H.R Rep. No. 103-769, at 18 (1994), quoted in L. Paige Whitaker, Cong. Research Serv., The Whistleblower Protection Act: An Overview 4 (2007), available at http:// www.fas.org/sgp/crs/natsec/RL33918.pdf.
701205 While the Whistleblower Protection Act purports to protect any disclosure, the Court of Appeals for the Federal Circuit-the only appellate court with jurisdiction over whistleblower lawsuits-has construed the statute narrowly, and has excluded from protection disclosures to supervisors within the chain of command, to co-workers, and to suspected wrongdoers. Radack, supra note 10, at 136 n.76 (citing Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1344, 1351 (Fed. Cir. 2001)).
206 5 U.S.C. §2302(b)(8)(B) (2000).
705207 Government lawyers have filed whistleblower claims, primarily for internal whistleblowing. See, e.g., Kalil v Dept. of Agric., 479 F.3d 821 (Fed. Cir. 2007) (rejecting whistleblower claim by government employee who was licensed as a lawyer and allegedly disclosed government misconduct to Justice Department officials and federal district court clerk); Buckley v. Social Sec. Admin., 125 Fed. App’x. 988, 989-90 (Fed. Cir. 2005) (rejecting government lawyer’s whistleblower claim after he allegedly made an internal disclosure); DeLeonardo, 2006 M.S.P.B. 269 (2006) (remanding for further consideration of government lawyer’s claim that she was retaliated against for internal whistleblowing).
707208 Cramton writes:
Although the whistleblower provisions deal expressly only with retaliatory actions of the employing agency, the application of professional discipline by a state disciplinary board is likely to be precluded. If that were not the case, the federal goal of assuring disclosure of official wrongdoing would be subverted by state law, which expresses a contrary policy of protecting confidences. The supremacy clause assures that the federal policy of disclosure prevails over the inconsistent state policy of confidentiality.
Cramton, supra note 10, at 312. Cramton noted that no lawyer had attempted to defend disclosure using the Whistleblower Protection Act and acknowledged that there was uncertainty about the interaction of whistleblower protection with the confidentiality duty. Id. at 314-15.
209 28 U.S.C. §530B(a) (2000) states that “[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” Act of Oct. 21, 1998, Pub. L. No. 105-277, Sec. 101(b), §801(a), 112 Stat. 2681, 2681-118 (codified at 28 U.S.C. §530B(a) (2000)).
711210 Radack, supra note 10, at 133-35 (quoting Model Rules of Prof’l Conduct R. 1.6(b)(6) (2007)).
713211 Moliterno, supra note 10, at 644-47.
715212 In addition, Moliterno incorrectly asserts that another statute, 28 U.S.C. §535(b), allows government employees-including lawyers-to disclose criminal misconduct to those outside the government. Id. at 644 (“Statutes such as 28 U.S.C. §535(b) ... are express waivers of confidentiality ….”). But §535(b) requires government employees to make such disclosures to the Attorney General, not outside the government. 28 U.S.C. §535(b) (2000 & Supp. V 2005) states:
Any information, allegation, matter, or complaint witnessed, discovered, or received in a department or agency of the executive branch of the Government relating to violations of Federal criminal law involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, or the witness, discoverer, or recipient, as appropriate ….
Moliterno is not the only commentator to misconstrue this statute. Steven Berenson also asserts that “to the extent that [28 U.S.C. §535(b)] trumps the broader duty of confidentiality owed by an attorney to their clients, it … represents a narrowing of the scope of confidentiality that government attorneys can offer to their clients.” Berenson, supra note 10, at 40 (footnote call number omitted). But this statute does not trump confidentiality at all because it requires reporting of wrongdoing within the client to the Attorney General, not reporting outside of the client.
213 5 U.S.C. §2302(b)(8)(A)(i)-(ii) (2000).
719214 Kent, 56 M.S.P.R. 536, 542-43 (1993) (disclosure prohibited by Federal Acquisition Regulation was not “specifically prohibited by law” under whistleblower statute).
721215 Id. (discussing legislative history); Cramton, supra note 10, at 311-12 (same).
723216 Courts are split on whether corporate in-house counsel should be treated the same as other corporate employees for the purpose of retaliatory discharge claims, which are the common law analog to statutory whistleblowing claims. Compare Gen. Dynamics Corp. v. Superior Court, 876 P.2d 487, 495-96, 504-05 (Cal. 1994) (permitting corporate in-house counsel to pursue retaliatory discharge claim as long as the claim can be established without breaching attorney-client privilege), with Balla v. Gambro, Inc., 584 N.E.2d 104, 105-09 (Ill. 1991) (prohibiting corporate in-house counsel from bringing retaliatory discharge claims).
725217 Cramton, supra note 10, at 309, 213 (“If these are permitted disclosures, the confidentiality duties of lawyers employed by the federal government have been significantly eroded.”).
727218 Model Rules of Prof’l Conduct R. 1.4 (2007).
729219 See id. 1.13 (requiring an entity lawyer to disclose wrongdoing up the chain of command within the entity, and permitting the lawyer to make external disclosure if the entity’s leadership fails to adequately address the wrongdoing); see also Orly Lobel, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, Cal. L. Rev. (forthcoming 2008).
731220 Westman & Modesitt, supra note 199, at 66-76.
733221 In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (“[P]ublic officials are duty-bound to understand and respect constitutional, judicial and statutory limitations on their authority ….”).
735222 In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997).
737223 Id. at 915-21 (denying White House claim of attorney client privilege in Independent Counsel’s investigation); see also In re A Witness Before Special Grand Jury 2000-2, 288 F.3d 289, 293 (7th Cir. 2002) (denying former Illinois Secretary of State George Ryan’s assertion of attorney-client privilege in federal criminal investigation (“It would be both unseemly and a misuse of public assets to permit a public official to use a taxpayer-provided attorney to conceal from the taxpayers themselves otherwise admissible evidence of financial wrongdoing, official misconduct, or abuse of power.”)).
739224 In re Lindsey, 158 F.3d 1263, 1273 (D.C. Cir. 1998) (alterations in original) (quoting Weinstein, supra note 176, at 160).
741225 See, e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
743226 In addition, the Sixth Circuit ruled that the City of Detroit could assert attorney-client privilege to prevent disclosure in a grand jury investigation, but remanded for further determination of whether the city council’s private meeting with its lawyer was legal under state open government laws. In re Grand Jury Subpoena, 886 F.2d 135, 138-39 (6th Cir. 1989). Similarly, New Jersey appellate court allowed a locality to assert attorney-client privilege in a state grand jury investigation. In re Grand Jury Subpoenas Duces Tecum by Sussex County on Farber, 574 A.2d 449, 454-55 (N.J. Ct. App. Div. 1989) [hereinafter In re Farber].
745227 In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 913-14, 915-21 (rejecting President Clinton’s claim of the privilege); see also In re Lindsey, 158 F.3d at 1263 (same).
747228 28 U.S.C. §535(b) (2000 & Supp. V 2005). But see Dam, supra note 198, at 7 (asserting that although this statute requires agency heads to report criminal violations to the Attorney General, it does not require government employees to report them to the agency head).
749229 See 28 U.S.C. §510 (2000).
751230 Cf. Paulsen, supra note 11, at 487.
753231 In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 915-21 (referring to “the White House” as the client).
755232 In re Lindsey, 158 F.3d at 1263 (referring to “the public’s interest in uncovering illegality among its elected and appointed officials”).
757233 In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289, 294 (7th Cir. 2002).
759234 In re Grand Jury Investigation, 399 F.3d 527, 533-36 (2d Cir. 2005). The argument for limiting government attorney-client privilege would seem to apply with equal force in civil litigation where there are allegations of wrongdoing by government officials, but courts have not accepted these arguments. See, e.g., In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (“[I]n civil litigation between a government agency and private litigants, the government’s claim to the protections of the attorney-client privilege is on a par with the claim of an individual or a corporate entity.”).
761235 United States v. Nixon, 418 U.S. 683, 703-16 (1974); see also In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
763236 Rosee v. Bd. of Trade, 36 F.R.D. 684, 689, 690 (N.D. Ill. 1965) (permitting disclosure of otherwise privileged government documents because plaintiff alleged official misconduct and “has shown (1) that there is a reasonable basis for his request and (2) that the defendant government agents played some part in the operative events”); see In re Sealed Case, 121 F.3d at 746 (stating that the “[deliberative process] privilege disappears altogether when there is any reason to believe government misconduct occurred”).
765237 See, e.g., Memorandum from Lloyd N. Cutler, Special Counsel to the President, to All Executive Department and Agency General Counsels 1 (Sept. 28, 1994) (“In circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigations and hearings.”); Morton Rosenberg, Cong. Research Serv., Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments 13 (2007), available at http:// www.fas.org/sgp/crs/secrecy/RL30319.pdf; see also Exec. Order No. 13,292, §1.7 3 C.F.R. 196, 200 (2003) (prohibiting government officials from using security classification to “conceal violations of law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency”). Elsewhere in the national security sphere, the executive orders authorizing the classification of national security-related information explicitly forbid government officials from using the classification system for the purpose of keeping secret government wrongdoing or other embarrassing information.
767238 Black v. Sheraton Corp. of Am., 371 F. Supp. 97, 101 (D.D.C. 1974) (referring to the government’s “admitted misconduct”).
769239 Id. at 101 (rejecting government’s claim of state-secrets privilege regarding FBI’s warrantless surveillance because government “[sought] to shelter improper, unauthorized acts from disclosure”). On the other hand, the government has often succeeded in asserting the state-secrets privilege as a shield against civil litigation challenging unlawful government conduct. See, e.g., ACLU v. Nat’l Sec. Agency, 493 F.3d 644 (6th Cir. 2007), Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978).
771240 While there is widespread recognition of a crime fraud exception to attorney-client privilege, some states still do not recognize an exception to lawyers’ confidentiality obligation for client fraud. See, e.g., Mo. Rules of Prof’l Conduct R. 4-1.6(b) (2007).
773241 Robert W. Tuttle, The Fiduciary’s Fiduciary: Legal Ethics in Fiduciary Representation, 1994 U. Ill. L. Rev. 889, 949. For a discussion of some parallels between representation of fiduciaries and representation of fiduciary entities, see Jeffrey N. Pennell, Representations Involving Fiduciary Entities: Who Is the Client?, 62 Fordham L. Rev. 1319 (1994).
775242 See Kathleen Clark, Do We Have Enough Ethics in Government Yet?: An Answer from Fiduciary Theory, 1996 U. Ill. L. Rev. 57, 73-77 (government officials owe fiduciary duties); Green, supra note 67, at 269 (“Whether one views the client as the government, a government agency or a government official, the client is distinctive in at least this respect: the client owes fiduciary duties to the public. It may then be suggested that the government lawyer owes some derivative duties to the public ….”).
777243 Jeffrey Toobin, Opening Arguments—A Young Lawyer’s First Case: United States v. Oliver North (1991).
779244 Toobin was licensed in New York and thus subject to the N.Y. Code of Prof’l Responsibility DR 4-101 (2007) (requiring lawyers to maintain the confidentiality of client confidences and secrets).
781245 See discussion of these obligations in McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983), and Snepp v. United States, 444 U.S. 507 (1980).
783246 Penguin Books USA, Inc. v. Walsh, 756 F. Supp. 770 (S.D.N.Y. 1991).
785247 Id. at 783-84.
787248 Penguin Books USA, Inc. v. Walsh, 929 F.2d 69, 74 (2d Cir. 1991).
789249 Model Rules of Prof’l Conduct R. 1.13(a) & cmt. 1, 1.6(a) (2007).
791250 See, e.g., Hollywood v. Superior Court, 49 Cal. Rptr. 3d 598, 607 (Cal. Ct. App. 2006) (disqualifying prosecutor who “virtually gave the entire [prosecution] file, owned by the public, to the filmmakers” who were considering making a film about a case against a capital defendant, perhaps in violation of laws restricting dissemination of documents to third persons), cert. granted, 149 P.3d 737 (Cal. 2006).
793251 5 U.S.C. §552(a) (2000).
795252 26 U.S.C. §6103 (2000).
797253 50 U.S.C. §403-1(g)(1)(d) (2000) (intelligence sources and methods); 42 U.S.C. §2272 (2000) (atomic energy information); 28 U.S.C. §798(a)(1) (1992) (cryptographic information).
799254 5 C.F.R. §2635.703 (2007); see Office of Inspector Gen. Dep’t of Interior Report of Investigation: Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks, 21-22 (2007) (concluding that government official violated 5 C.F.R. §2635.703 when she shared with industry lobbyist draft policies that were not subject to disclosure under FOIA).
801255 5 U.S.C. §552(a)(1) (2000).
803256 Id. §552(a)(2).
805257 Id. § 552(b). A list of state open meeting laws can be found at the National Freedom of Information Coalition, http://www.nfoic.org/foi-center/state-foi-laws.html.
807258 5 U.S.C. §552. A list of state freedom of information laws can be found at the National Freedom of Information Coalition, http:// www.nfoic.org/foi-center/state-foi-laws.html.
809259 5 U.S.C. §552(b)(3) (2000).
811260 5 U.S.C. §552(b)(1) (2000).
813261 5 U.S.C. §552(b)(5) (2000).
815262 5 U.S.C. §552(b)(7) (2000).
817263 5 U.S.C. §552(b)(6) (2000).
819264 See, e.g., State v. U.S. Dep’t of Interior, 298 F.3d 60, 63 (1st Cir. 2002) (discussing “the tension between the substantive provisions of the Freedom of Information Act (FOIA), 5 U.S.C. §552, and the application of the attorney-client and work-product privileges”); Dunn v. Ala. State Univ. Bd. of Trs., 628 So. 2d 519, 529-30 (Ala. 1993) (despite state open meeting law, state university board of trustees can meet in secret with its attorney in order to obtain attorney’s legal advice on pending litigation), overruled on other grounds by Proctor v. Riley, 903 So. 2d 786, 791 (Ala. 2004); Laman v. McCord, 432 S.W.2d 753, 756 (Ark. 1968) (attorney-client privilege, which is codified in the state’s civil code, did not create an exemption to the state’s open meeting law); Roberts v. City of Palmdale, 853 P.2d 496 (Cal. 1993) (applying attorney-client privilege exception to California Public Records Act, Cal. Gov’t Code, §6250 (West 2007), and the Ralph M. Brown Act, Cal. Gov’t Code §54950 (West 2007)); Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480, 492 (Cal. Dist. Ct. App. 1968) (open meeting law “did not abolish the statutory opportunity of boards of supervisors to confer privately with their attorney on occasions properly requiring confidentiality”); Neu v. Miami Herald Publ’g Co.,462 So. 2d 821, 824-26 (Fla. 1985) (state sunshine law applied even to city council meetings with city attorney, preventing application of attorney-client privilege to those meetings); Harris v. Balt. Sun Co., 625 A.2d 941, 947 (Md. 1993) (construing lawyer confidentiality obligation to prohibit only disclosures that could harm client in case involving FOIA request to state public defender’s office); Prior Lake Am. v. Mader, 642 N.W.2d 729, 737 (Minn. 2002) (open meetings law has exception for meetings with attorney, but “only when there is a need for absolute confidentiality”); McKay v. Bd. of County Comm’rs, 746 P.2d 124, 128 (Nev. 1987) (state open meeting law prohibits county board from meeting with its attorney in private); Okla. Ass’n of Mun. Att’ys v. State, 577 P.2d 1310, 1314-15 (Okla. 1978) (local government could meet in secret with attorney despite state sunshine law); see also Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850, 861, 863-64 (W. Va. 1995) (reprimanding state attorney general for revealing information in violation of lawyer confidentiality even though the information would be subject to mandatory disclosure under state freedom of information law).
821265 United States v. Morison, 844 F.2d 1057, 1060-63, 1076-80 (4th Cir. 1988) (Defense Department employee leaked satellite photos to newspaper convicted of theft of government property and espionage); Ashcroft v. Randel, 391 F. Supp. 2d 1214, 1217-18 (N.D. Ga. 2005) (Drug Enforcement Agency employee leaked government documents to press pleaded guilty to theft of government property).
823266 Roberts, 853 P.2d 496; Sacramento Newspaper, 69 Cal. Rptr. at 492; Maxwell v. Freedom of Info. Comm’n, 794 A.2d 535, 538 (Conn. 2002); Neu,462 So. 2d 821 at 824-25; Prior Lake Am., 642 N.W.2d at 731; In re Farber, 574 A.2d 449, 455 (N.J. Ct. App. Div. 1989) (harmonizing open meeting law with attorney-client privilege); McKay, 746 P.2d 124; Okla. Ass’n, 577 P.2d at 1314-15; Markowski v. City of Marlin, 940 S.W.2d 720, 725-27 (Tex. App. 1997); see also Harris, 625 A.2d at 947-48 (harmonizing state public defender’s confidentiality duty and his disclosure obligation under state FOIA).
825267 5 U.S.C. §552(a)(2) (2000).
827268 Cramton, supra note 10, at 294 (“[A] government lawyer’s duty of confidentiality does not extend to information that the government has made available upon request to the public. In terms of the professional ethics rules, the government in effect has consented to disclosure.”).
829269 Glavin, supra note 10; see Snepp v. United States, 444 U.S. 507, 510-13 (1980) (former CIA employee breached his fiduciary obligation by failing to comply with agency’s prepublication review procedure even though his disclosure contained only information that would be subject to mandatory disclosure under FOIA).
831270 5 U.S.C. §552(a)(4)(B) (2000) (where a requester appeals an agency’s denial of information, “the burden is on the agency to sustain its action”).
833271 McGehee v. Casey, 718 F.2d 1137, 1143-47 (D.C. Cir. 1983) (rejecting former CIA employee’s challenge to CIA’s decision preventing him from disclosing confidential national-security information).
835272 D.C. Rules of Prof’l Conduct R. 1.6(e)(2)(A) (2006) (emphasis added). The D.C. Court of Appeals adopted a revised set of professional rules effective Feb. 1, 2007. Alberto Mora’s disclosure of information occurred prior to the effective date of the new rules, and so this Article analyzes his conduct using the version of the D.C. Rules that were effective in 2006. All other discussion of the D.C. Rules in this article will refer to the 2007 version.
837273 Id. R. 1.6(e)(2)(B) (emphasis added).
839274 A comment accompanying the rule suggests a narrower interpretation. The comment states that this provision “is designed to permit disclosures … which the government authorizes its attorneys to make in connection with their professional services to the government,” id. R. 1.6 cmt. 37, suggesting that this provision is aimed only at disclosures that are necessary for the government lawyer to carry out her responsibilities. On the other hand, the D.C. confidentiality rule already has another exception for disclosures that are “impliedly authorized … in order to carry out the representation.” Id. R. 1.6(e)(4). In light of the existence of this “impliedly authorized” exception, the government-lawyer exception should be read as permitting government lawyers to disclose information that may be disclosed under the open government laws.
841275 Model Rule 1.13(b) states:
bq.If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
MODEL RULES OF PROF’L CONDUCT R. 1.13(b) (2007).
276 See Glavin, supra note 10, at 1836–43.
845277 Brooks Egerton, Losing a Fight for Detainees, DALLAS MORNING NEWS, May 18, 2007, at 1A; see also Ari Shapiro, Navy Lawyer’s Guantanamo Leak Trial Begins (Nat’l Pub. Radio broadcast May 14, 2007) (audio available at http://www.npr.org/templates/story/story.php?storyId=10173248).
847278 Egerton, supra note 277.
849279 Tim Golden, Naming Names at Gitmo, N.Y. TIMES MAGAZINE, Oct. 21, 2007, at 78. For an interesting analysis of the Diaz case, see Ellen Yaroshefsky, Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers Be Permitted to Violate the Law?, HOFSTRA L. REV. (forthcoming 2008).
851280 John Shattuck, In Search of Political Courage, BOSTON GLOBE, May 22, 2006, at A11.
853281 MODEL RULES OF PROF’L CONDUCT R. 1.4 (b) (2007) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”); Id. R. 1.7 cmt. 1 (“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”).
855282 Id. R. 1.4 cmt. 6 (“When the client is an organization or group, . . . the lawyer should address communications to the appropriate officials of the organization.”).
857283 For an example of partial step-wise disclosure, see Carol D. Leonnig & Josh White, An Ex-Member Calls Detainee Panels Unfair Lawyer Tells of Flawed ‘Combatant’ Rulings, WASH. POST, June 23, 2007, at A3 (describing how naval reserve lawyer Stephen E. Abraham repeatedly complained to his commander about problems with the Combatant Status Review Commissions at Guantanamo before providing an affidavit about those problems for a habeas proceeding on behalf of one of the Guantanamo prisoners). Abraham’s approach was not completely step-wise; he could have gone outside the client to Congress before going to court.
859284 MODEL RULES OF PROF’L CONDUCT R. 1.13(b) (2007).
861285 Id. R. 1.13©.
863286 Compare discussion of the State Department’s “Dissent Channel” in Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2328–30 (2006).
865287 Cf. Crandon v. State., 897 P.2d 92, 103–04 (Kan. 1995).
867288 Id. at 94–100. The Kansas Supreme Court affirmed the trial court’s rejection of Crandon’s wrongful discharge claim, but did not find that Crandon had violated the professional ethics rules. It found that Crandon acted with “reckless disregard for the truth or falsity of the disclosure” when she reported the allegations to the FDIC before investigating the truth of her suspicions. Id. at 102–04.
869289 MODEL RULES OF PROF’L CONDUCT R. 1.13 cmt. 3 (2007).
871290 Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850, 852–58 (W. Va. 1995).
873291 See W.VA. RULES OF PROF’L CONDUCT R. 1.6.
875292 McGraw, 461 S.E.2d at 860–61, 862 n.25, 864 (noting that “FOIA sets forth specific procedures for requesting and obtaining public records”). See discussion of this case in Foster Cobbs Arnold, The “Public Record/Third Party Rule” of the Duty of Confidentiality: Situations in Which the Rule Arises and Attitudes Toward Its Application, 23 J. LEGAL PROF. 399, 405–06 (1999).
The inability of the West Virginia Attorney General to authorize his own disclosures may reflect the fact that the West Virginia Attorney General does not have the same kind of decision-making authority that the U.S. Justice Department has. The McGraw court explained that in West Virginia, there is “a traditional attorney-client relationship between the Attorney General and the state officer he represents.” McGraw, 461 S.E.2d at 862. The court also noted that “the role of the Attorney General is not to make public policy in his own right on behalf of the state[,] but rather to exercise his skill as the state’s chief lawyer to zealously advocate and defend the policy position of the officer or agency in the litigation . . . .” Id. (internal quotations omitted) (quoting Manchin v. Browning, 296 S.E.2d 909, 920 (W. Va. 1982)). Lawyers who by statute are given more decision-making authority may also have the ability to consent to disclosures on behalf of their clients.
293 444 U.S. 507, 510 (1980).
879294 Id. at 509–10 (government stipulated that Snepp’s book did not reveal any classified information).
881295 Id. at 508 (finding that his “promise [to submit the manuscript for prepublication review] was an integral part of Snepp’s concurrent undertaking ‘not to disclose any classified information’”).
883296 But cf. Pillard, supra note 132, at 712 (noting that the Justice Department’s Office of Legal Counsel publishes the opinions it issues only after “seek[ing] permission from the requestors”).
885297 17 C.F.R. § 200.735-4(e)(1)–(2) (2007). See also 5 C.F.R. § 2635.703(a) (2007), which prohibits all executive branch employees from “the improper use [by any executive-branch employee] of nonpublic information to further his own private interest or that of another.” The regulation further states that nonpublic information includes information that is
•routinely exempt from disclosure under the FOIA,
•otherwise protected from disclosure by statute, Executive order or regulation,
•is designated as confidential by an agency, or
•has not actually been disseminated to the general public and is not authorized to be made available to the public on request.
5 C.F.R. § 2635.703(b).
298 See McGehee v. Casey, 718 F.2d 1137, 1139 (D.C. Cir. 1983); United States v. Marchetti, 466F.2d 1309, 1318 (4th Cir. 1972) (upholding requirement that former CIA employees submit manuscripts for prepublication review for classified information).
889299 See Adam Liptak, Agent in Leak Case Sues C.I.A. for Blocking the Release of Her Memoir, N.Y. TIMES, June 1, 2007, at A18; Dana Priest, Suing Over the CIA’s Red Pen: Retired Operative Says Agency Unfairly Edited His Book, WASH. POST, Oct. 9, 2006, at A15.
891300 See, e.g., JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW & JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007). Goldsmith acknowledges his confidentiality duty based on national security classification, id. at 12, 219, but not his duty of confidentiality as a lawyer. While Goldsmith does not analyze his professional duty of confidentiality, he does point out that his memoir continues a long tradition of memoirs by former government lawyers. Id. at 221–23 (citing twenty-nine memoirs as well as law review articles, interviews, and testimony).
893301 5 U.S.C. § 552(b)(5) (2000).
895302 Mayer, supra note 1, at 35.
ETHICS HYPOTHETICALS
Ethics Hypothetical #1
You are a brand new Assistant Attorney General in the State of Atlantis. Only hired because of the glowing reference sent by Prof. Tierney, you have just been sworn in by the Attorney General himself, Nathan Clifford, whose vision for the future had inspired you to return to Atlantis after time away at both college and Harvard Law School.
After the ceremony, you are then taken to lunch at the State House Cafeteria (known locally as the “Bay of Pigs”) by Mel Fuller, your new Supervisor, who is the Chief of the Trial Division.
“We haven’t hired anyone out of law school in a long time,” Fuller begins, “but we’ve all been here forever and thought that it would be good to get some new, Ivy League blood. You won’t have any lack of work! See those cardboard boxes that are lining the halls? All cases … all the time. There is no end to the people who want to sue Atlantis!”
“You know, I’ve seen ‘em come and go over the years,” Fuller continued. “We’ve had some good AG’s — like the one we have now — and we have some bad ones. But here in the Trial Division, we just pick up the tools and get the job done. Our clients are career claims managers in the various state agencies and they are terrific, too. We like to settle whenever we can, of course, but you will get trial experience here that exceeds anything that life partner of yours will get in that fancy downtown firm!”
Forty–five minutes later you are sitting at your computer gazing at a docket list of cases. It appears that you are due in court the next day on a motion to dismiss that was filed by your well loved predecessor who has just retired.
You pick up the first file and see that you will be arguing to dismiss a case involving a former prisoner whose hand had been severed while working in the prison carpentry shop. The plaintiff’s counsel had taken several depositions and your quick review indicates that the wardens had all admitted that there was no guard on the band saw, no instructions as to how to use the band saw, and no warden in the room to stop a fight that had broken out between two other prisoners, one of whom allegedly bumped into the plaintiff pushing him into the unprotected blade.
You read further and discover that the plaintiff had been a model prisoner incarcerated for filling out fraudulent loan statements on behalf of a local payday lender who somehow was never charged. The plaintiff has now served his nine months in prison and is home and unemployed while learning to use his prosthesis. He has sued under Atlantis’s Tort Claims Act where there is a damage cap of $100,000.
A bit taken aback, you trot down the hall to see your friendly Supervisor and ask for a bit of guidance. Fuller leans back and says, “Hey! The guy was in prison! We make a motion to dismiss on all prison cases because some of the judges — who are elected in our fair state – actually grant them! Can you believe it? We get rid of 30% of our cases that way! If you lose, and you might, then we go to the Department of Corrections and see if they will put some money up to make this go away. The plaintiff must be starving to death by now and will probably take anything. Look, this is your first day, so let me make a couple things clear. The AG’s office doesn’t make those decisions. Our client makes those decisions. It would be unethical to not follow the directions of our clients. We adhere to all the ethics rules here in the AG office.”
“But… but,” you stammer, “the plaintiff has no prior record and he has three kids in school. He is an Iraqi veteran! He lost his hand! At least tell me that if we lose the motion that we are going to throw in the $100,000?”
“Not a chance,” Fuller responds. Don’t you see the snow outside? This is February.”
“February?
What has that got to do with it?,” you ask.
“The Department of Corrections always settles in the first six months of the fiscal year — when it has money — and never in the second six months when it is broke,” Fuller explains. “This is February. End of discussion! Look, didn’t you say at your interview that you wanted to litigate? You will get some of that trial experience that you wanted!”
“But…but,” you persist, with unspoken memories of the common law and articles you read in some class at Harvard, “don’t we have a higher duty to represent the public interest?”
What do you do?
Ethics Hypothetical #2
The last seven years in the Atlantis Department of Justice have been good ones for you. After four years in the Trial Division, where you received a great deal of solid trial experience, you spent a couple years in the Consumer Fraud Division before being promoted into the elite Special Litigation Section.
On a personal level, life in Atlantis has been good. Your life partner hit a few cases for the downtown firm and you have both paid off those pesky student loans. The kids are now two and four. Because you work for the State and not a firm, you are living sane hours and trying to be a good parent. Coming home to Atlantis was a great move especially because the child care — your parents! — is free. Your kids have also become close to their cousins because your sister, who is a high school teacher, lives just a mile away.
Being a part of the community means a great deal to you. Just as they told you when you started in the AG office, the AG’s come and go (you are on your third) but the work continues to be both varied and interesting. You can’t imagine working anywhere else. The Special Litigation Section is a choice assignment and in many ways is the top job for the “non–political” lawyers in the office. It is very small (only four very talented lawyers) and it handles the state’s most interesting and complex cases.
You are nonetheless working on a case that is troubling you personally.
Several years ago, an action was filed by the parents of developmentally disabled children who believe that they are not receiving the services mandated by state law. Although in Atlantis education is provided by cities, the plaintiffs not only sued both the city where you live (the plaintiffs wanted to get the media in the state capitol for maximum pressure on the legislature) and the state. The City cross claimed against the state and there has been a great deal of publicity.
Because one of your nieces, Bonnie, is developmentally disabled, your sister is part of the plaintiff class. You can’t help but think about the case everyday when you pick your kids up at your parents’ house where Bonnie also receives child care. After all, you are only human.
The plaintiffs are asking for the world (including fees and a ten year “monitor”) and would rather talk to the press than to you. The Governor is a lame duck and angling for a slot in the Obama Administration. The Education Commissioner, your “client,” is invisible and your boss, the AG, is never around as he “tests the waters” for his own race for Governor against the Speaker of the House. Whenever you ask the Chief Deputy for guidance, she is too busy to talk. The judge is grumpy and wants the case to go away.
The state’s legal position — “This is all up to the City! We have no liability! The State is broke!” — rings hollow to you both legally and morally. You ask your three colleagues in the Unit to lunch so that you can talk through the ethics of what you are doing. As you sit down, they look at you and say, “OK, Harvard” (your nickname in the office), “just exactly what is it that you want to discuss?”
How do you determine what is the “right” thing to do?
Ethics Hypothetical #3
Eighteen years ago, on your first day of work, you were told that “We’ve had some good AG’s and we have some bad ones,” and now you have a bad one, Jim Blaine.
A really bad one.
After his election, you knew you better burrow down into the ranks and so you grabbed your old consumer slot that was vacated when most of that division took early retirement. Everyone knew that Blaine is an idiot, so you obviously considered leaving while you still could get out. But the kids are only in middle school and so you decided that you would try to stick it out.
Besides, what work would you do if you left? Who would want someone who has only worked in an AG’s office? Things were also tight financially. After your so–called “life partner” went off with that summer intern, you moved back into your folks’ house. The rent was free and your mom really needed someone there at night. Besides, you are only a few years away from your vested state retirement. Although you occasionally get notes from your Harvard classmates, who must now be making millions, you aren’t going to your twentieth reunion. Frankly, you can’t afford it.
Although you had heard rumors about Blaine meeting privately with lawyers on the other side in cases and then ordering to AAG’s to settle or reverse their positions, it hadn’t happened to you. On the consumer fraud front, he let things roll along and joined in most of the multistate cases that other more activist AG’s negotiated. His press releases went out like clockwork, and he always took credit for any success the office had, but then, don’t they all?
It didn’t make much difference to you on a day–to–day basis, and you only had to see him once a year at the office “Christmas Party.” (He canceled the long–standing “Holiday Party” and replaced it with a “Christmas Party.” Oh, well, you thought, he is the boss and he gets to decide these things….). You knew enough to stay invisible.
One afternoon, you received an email from the AG’s Chief of Staff, Bill Fessenden. A non–lawyer and the AG’s 26 year old campaign manager, who allegedly was behind some recent lay–offs of some really good, long–time AAG’s, he said that he needed to see you immediately.
Your office was a good mile away from the State Capitol, so you grabbed your coat and off you went. Passing your old offices in the Special Litigation Unit, which were right next to the bosses, you were ushered into the Chief of Staff’s office. Also in attendance was Carl Milliken, a well known Statehouse lobbyist and plaintiff’s lawyer in your ex life partner’s old law firm.
For reasons that you can’t quite articulate, your stomach begins to ache.
While Milliken just smirked, Fessenden barked, “Ok, let’s get to the bottom of this. Our friend Carl tells me that you and some assistant attorneys general in other states have an investigation going against Wrong Aide Pharmacy, and that he can’t get an answer as to what is going on! I haven’t even heard of this case and so I thought it would be a good idea for you to let the front office what is happening. As you know, the AG is committed to having open lines of communication with the private bar, and, even more important, he isn’t about to let some AG in another state take the lead on some case in which good lawyers here in Atlantis are already fighting the good fight! So, what’s up?”
The truth immediately races through your mind.
Over the last two weeks, your Consumer hotline has been buzzing with complaints about Wrong Aide’s “over the counter” drug sales. The complaints all seemed to be the same, and you are suspicious about them because they seemed contrived, which is why you hadn’t opened a file or assigned an investigator to look into them. You had done a quick check on the “NAAG Secret Website” and it let you know that AAG’s around the country were getting similar complaints. Several shared your qualms especially since a national class action suit had recently been filed by a group of politically connected trial lawyers with a record of generating complaints to AG offices as a way to secure a quick, high fee settlement of the private case. The truth be known, you have no idea whether Wrong Aide had done anything “wrong” at all.
What do you say to the Chief of Staff?
Ethics Hypo #4
As a senior member of the office, it is occasionally your job to weigh in on matter that pits one division of the office against another. You have no criminal experience yourself, but you know enough to be concerned about this one.
The Alfond Shoe Tannery had long been a mainstay of the economy of Bayside, Atlantis. It employs 4-500 unionized workers and somehow has remained competitive with off shore competitors. Jacob Alfond, great-grandson of the founder and Atlantis’ most respected philanthropist, remains the vibrant CEO. He has resisted many lucrative offers to sell because “I know that they will steal the Alfond trademark and move it all to Asia!”
One of the ways that the Alfond family is revered in Atlantis is that they have a reputation of “playing by the rules” and never asking for favors.
It was therefore not initially bothersome when wastewater from the tannery dribbled into the Bayside Bay. Although the smell was horrendous, the scientists in the lab at the Atlantis Department of Environmental Protection had concluded that the actual environmental damage was not “all that serious.” Alfond’s long time counsel, your former life partner (of course!), negotiated an administrative consent agreement with a low level assistant attorney general, Chauncy DePew, that allowed Alfond Tannery to pay no fine based on its promise “to invest at least $1 million in new environmental equipment.”
The truth is that the Alfond family is not universally loved in Atlantis’ neighboring state of Canaan that faces Bayside (and the Tannery) directly across the narrows where McMansions now dominate the shore. Canaan’s summer residents rose up in fury upon learning that the Alfond Tannery “was let off the hook.” After filing a FOIA request with the Atlantis Department of Environmental Protection and reading the actual scientific analysis of the wastewater, they hired their own scientist who declared the discharge “very serious” and issued a very public outcry for the case to be reopened.
You privately advised your boss the Attorney General that reopening was not an option. Under Atlantis administrative law, a deal is a deal and the Department of Attorney General’s press secretary issued a short statement saying as much.
Not to be dissuaded, the Canaan Citizens for a Clean Bay (the CCCB) fired back that they wanted to see the personnel file of DePew now that he had joined the law firm who had represented Alfond Tannery. Once again, you advised your boss that the now ex-AAG’s file was protected by both statute and “attorney client” privilege although that latter argument was not free from doubt now that the case was closed. Once again the press secretary issued a bland statement.
Driven into a frenzy, the CCCB attacked your boss for “a huge cover up” and that demanded your criminal division launch an immediate investigation. The head of the criminal division, whom you do not know well, has emailed you (ignoring the mantra that these things should always be discussed without the use of email) and said “hey, Harvard, I am happy to look at this one. I never trust anyone whose first and last name are interchangeable that includes that AAG Depew guy. Just because he settled on the civil side doesn’t mean we can’t indict them, right? Lemme know what you think, but I may have to go to the boss myself on this one.”
What do you do?
If you open up the file and bring a criminal charge, is that ethical since criminal violations were never discussed in the settling of the administrative case?
Does it make a difference that no one has ever been prosecuted under the criminal discharge statute?
Does is make a difference if Alfond threatens to close the tannery?
Does it make a difference that the Tannery was unionized?
Does it make a difference if Alfond either contributed to the campaign of your boss or to that of his opponent? or to your personal favorite charity?
Does it make a difference that DePew actually had 37 other discharge cases along with an active litigation work load? and that the AG cried real tears at DePew’s retirement gala? made necessary because DePew has two disabled children? and is a recent widower?
Does it make a difference that AAG’s around the office are furious that their files might now be subject to review if the attorney general caves and opens DePews files?
Does it make a difference that the head of the criminal division is the Mayor of Atlantis’ capitol?
Ethics Hypothetical #5
What a ride the last 35 years have been!
Who would ever have thought that you’d have spent an entire career as an Assistant?Attorney General?
The truth is that you have very few regrets. The money has not been great, but scholarships and your ex got the kids through college and one is even at Harvard Law School. Living in the house where you were raised has been comforting and inexpensive, and you can look around you and see the positive differences you have made in your own community.
Your pension has vested and your vacation time accrues faster than you can use it. Your new “life partner” is the real thing (not a being a lawyer sure helps!) and that four week visit to Dubrovnik last Spring was the trip of a lifetime.
Bonnie has grown up and brings her kids over now and again, and you can’t help but think back of how you and your then AG managed to settle that case in such a way as to get her the services that she needed. She is so much happier than anyone would have thought possible!
Your own health is good and you love coming to work every day. You could not help but notice the contrast with your Harvard classmates at your thirtieth reunion. After all those years of making money, they looked so old and haggard. They drank way too much and bemoaned they had nothing to show for their life except for their place in the Hamptons that they never had time to visit. As head of the Special Litigation Section, you have a good working relationship with the new AG — who seems so young — and memories are fading about your cameo appearance at the impeachment trial that so shocked Atlantis. At the end of the day, the only victim of the Wrong Aide case was the AG himself! Who knew?
After a quick trip to the gym, conveniently located in the office (there is a lot of room in the state office buildings now what with tax caps and so many of the lawyers working from home), you go to lunch with a former member of the office who now proudly sits on the Atlantis Supreme Court, Associate Justice Julia Chamberlain. She is not only a great lawyer and a good friend, but she is also a client since the AG’s office represents the Judiciary when it is sued.
You begin the lunch with your customary greetings (“Hey, Harvard!” “Hey, Judge!”) and chat along as you have done for over 25 years.
As dessert is being brought, your friend says, “By the way, Harvard, I asked the Chief Justice to ask the AG to assign you to represent me on that stupid conflict–of–interest stuff.”
As you both knew, the job of representing the Judiciary went to the Special Litigation Section in order to minimize the appearance of conflict with the rest of the office who regularly appeared before the Atlantis’s courts. Allegations against the Supreme Court were few in number and always handled by the Section Chief, i.e., you.
The last thing that you wanted to discuss with your friend was the “stupid conflict of interest stuff.” A self styled citizen activist group had made allegations that your friend had gone on too many “educational” trips that were funded by several “think tanks” which in turn were funded by unknown sources. You had never liked the idea of judges going on these trips, but the courts have recently ruled that judges had First Amendment rights just like everyone else.
This ruling seems to have invalidated Atlantis’s existing statutory constraints on judicial behavior. Further complicating the matter was the fact that your good friend the Justice is recently single, and, you surmised, was not going to these meetings alone.
At that point, you deliberately spilled your water glass and, in the confusion, were able to change the subject. When you returned to the office, you called in the three fellow members of the Special Litigation Section you supervise for an impromptu meeting to discuss both “Judgegate” and whether this might be a good time to retire after all.
Do you handle the case against Justice Chamberlain?
I. INTRODUCTION
Colorado was in the midst of a political war. In 2003, the newly Republican-controlled legislature, hoping to use their majority to affect the state’s congressional delegation, passed redistricting legislation just one year after another redistricting plan had been put in place.[1] After Governor Bill Owens, a Republican, signed the bill into law, Ken Salazar, a Democrat and attorney general for the State of Colorado, petitioned the state supreme court to enjoin the secretary of state, Republican Donetta Davidson, from enforcing the new law.[2] Salazar’s position: As the people’s lawyer he had the authority to bring a suit to determine the constitutionality of the redistricting plan.[3] Davidson, however, disagreed.
In fact, Davidson could not believe what had happened. The attorney general had sued her in her official capacity over a law that she was entrusted to enforce. Neither she nor the governor had asked Salazar to challenge the act; the attorney general initiated the suit on his own.[4] Additionally, a group of citizens also sued the secretary of state challenging the redistricting plan on constitutional grounds similar to those raised by Salazar.[5] Davidson then initiated her own suit against Attorney General Salazar in the Colorado Supreme Court to stop his redistricting challenge.[6] Specifically, Davidson argued that the attorney general, as the secretary of state’s statutorily appointed counsel, was obligated to defend her against any suit and was bound by the ethics rules of the client-attorney relationship.[7] Salazar, by challenging the redistricting plan, was suing his own client.
The situation in People ex rel. Salazar v. Davidson[8] is a continuing problem in state attorney general jurisprudence — to whom does the attorney general owe allegiance? Is the attorney general a lawyer for the state government and its officers, or is she the lawyer for the citizens as a whole? If these two duties are in conflict, which client prevails? A number of recent cases, including Salazar, illustrate that state officers and courts continue to wrestle with these questions. Indeed, these issues are likely to become even more important in the near future as a result of the federal government transferring many responsibilities and authority to the states.
Courts constantly struggle with the question of who the actual client is in a given situation for several reasons, but the underlying difficulty lies in the fact that a person must determine the wishes of the people. The people, as a collective, often do not officially express their voices except through elections or referenda, so their will must be interpreted. However, there are many people in state government who can legitimately assert that they speak for the people’s interests, including the legislature, the governor, and the attorney general.
This Note addresses the following question: Does the attorney general violate ethics rules by bringing an action against state officers — officers who are often considered the attorney general’s clients? In other words, does a traditional client-attorney relationship exist between the attorney general and the elected state officers? The state attorney general clearly is not a lawyer in the traditional sense of the word: she is an officer in the government and is expected to act with the best interests of the people in mind.[9] It is this dynamic — the struggle between the established professional ethics of a lawyer and the moral ethics expected of a statewide officer — which this Note examines.[10] Of course, a conflict of interest may arise in situations where the attorney general is expected to represent a state officer in opposition to her own interpretation of the public interest. More problematic are situations where the attorney general initially agrees to represent an officer or department, only to change her mind in the middle of the case when more facts come to light, or where a new person becomes attorney general, usually as the result of an election. In these instances, is it really fair to apply traditional client-attorney relationship rules to the possible detriment of the public interest?
Part II discusses the structure of state government and the divided executive branch, while Part III explains how the state attorney general represents both state officers and the public interest. Part IV examines how different state courts have tried to resolve the conflicts that can arise between the attorney general’s representation of the government and of the public interest. Part V introduces the ABA Model Rules of Professional Conduct, the model for most states’ ethical codes, and explains how these rules conflict with many of the attorney general’s duties. In the last part, this Note proposes that state attorneys general do not violate ethics rules by bringing actions against the state or state officers. Additionally, courts should not strictly apply ethics standards established by state bar associations because those rules were written for private lawyers, not government lawyers.
II. THE STRUCTURE OF STATE GOVERNMENT
A. THE DIVIDED EXECUTIVE BRANCH
Every American is familiar with the concept of separation of powers. Not only is it central to our system of government, but Americans, perhaps uniquely, regard it as an essential ingredient in a democratic society. After all, the Framers feared not only monarchies, but also unchecked populist legislatures.[11] Although the federal government was divided into three branches with the president as the exclusive chief of the executive branch, many state constitution framers took the opportunity to further divide the state executive branch. This structure is known as the “divided executive branch.”[12]
Almost every state, to one degree or another, has an executive branch comprising several elected executive officers.[13] Aside from the governor, these officers generally include a secretary of state, a treasurer, and an auditor, as well as other officials that vary from state to state.[14] In forty three states the attorney general is popularly elected.[15] Each elected office is provided for in the state constitution,[16] and each officer has certain duties as required by either the constitution or statutes.[17]
The framers of state constitutions, still wary of potential abuses of executive power, divided the executive branch so that no one person had too much control or authority.[18] As the Minnesota Supreme Court explained, “Rather than conferring all executive authority upon a governor, the drafters of our constitution divided the executive powers of state government among six elected officers. This was a conscious effort on the part of the drafters . . . .”[19] Still, while this type of system might constrain the traditional tyrant, it creates a whole new host of problems in a two-party system. Specifically, because there are several officers in the executive department that are elected directly by the people, there is a significant chance these officers will not all belong to the same political party.[20] A party split within the executive branch means different officers with different political views have legitimate claims to represent the people’s voice. In addition, there may be intra-party conflict: the governor and attorney general, even when they belong to the same party, might be rivals or simply disagree on a legal policy issue. The point is that the citizens voted for each officer, giving each a mandate to carry out their collective will. Thus, the divided executive branch is ripe for conflict.
B. THE ATTORNEY GENERAL’S ROLE IN THE DIVIDED EXECUTIVE BRANCH
The office of attorney general, located within the executive branch, is usually constitutionally prescribed,[21] and in forty-three states is elected directly by the people.[22] In almost every state, the attorney general is the chief law officer.[23] Generally this means that the attorney general controls and manages all litigation on behalf of the state, defends the state in court, and offers legal advice to the other state officers, executive departments, and often the legislature.[24] These powers not only relate to actions defending the state but also extend to the ability to initiate litigation on behalf of the public interest.[25] Some states require the attorney general to work in conjunction with the governor,[26] but even these states agree that the attorney general is near-supreme in her sphere of the executive branch and can bring suits that are in the state’s interest.[27]
Every state has statutes that address the powers and duties of its attorney general,[28] but in some states the attorney general also retains common law powers.[29] Most of the powers noted above are derived from the attorney general’s traditional common-law powers, including the right to initiate and intervene in suits on behalf of the public interest. These states have determined that the attorney general’s common-law powers exist in addition to constitutionally and statutorily granted powers so long as they do not conflict.[30] Today, most states follow this model and uphold the attorney general’s common-law powers.[31]
However, a significant minority of states[32] has abandoned the common law powers and asserts that the attorney general does not have any powers beyond those granted to her by the legislature and state constitution.[33] The arguments in favor of this abandonment are logical if one accepts the expressio unius est exclusio alterius canon of statutory interpretation. According to this argument, the legislature could have easily stated statutorily that the attorney general retains her common-law powers. Instead, the legislature chose to enumerate certain powers, leading to the conclusion that it must have decided to exclude every power not mentioned.[34] Over the last decade, with the rise of multistate litigation and more activist attorneys general, several states have moved to limit the attorney general by abrogating her common-law powers. Currently, though, that movement appears to have stalled, and some states are even starting to revert back toward the old common law.[35]
III. THE CLIENTS OF THE ATTORNEY GENERAL
A. THE PEOPLE AND THE PUBLIC INTEREST
As described above, the attorney general is the state’s chief law officer and, as such, represents the people and the public interest. Sometimes this authority is conferred by statute, but it is also a long held common-law power. However, this does not mean the attorney general must only defend the public interest; she can also actively pursue any litigation the public interest requires. Therefore, both the people and the public interest can be considered the attorney general’s “clients.”
The attorney general may exercise all power and authority as the public interest may occasionally require.[36] In some jurisdictions this right has been held to be a common-law power while in others it is interpreted as a statutory duty.[37] Thus, a state attorney general may represent a state officer or department provided the state has a real interest involved.[38] Also, under the common law, the attorney general has a right to intervene in all suits and proceedings that concern the general public.[39] With regard to these powers, the attorney general has the ability to decide what the public interest is. In her representation of the people, the attorney general has the power to initiate or intervene in almost any action as long as a real public interest is involved. Arguably, because the attorney general is elected directly by the people, this is the attorney general’s core function.
B. OFFICERS AND EXECUTIVE DEPARTMENTS
The attorney general, though, does not just represent the people and the public interest. One of the other duties of the state’s chief law officer is to represent and defend the state on behalf of its officers and executive departments.[40] In other words, the attorney general is the legal advisor to various departments, officers, and agencies within the state government.[41] This responsibility makes the attorney general the officers’ lawyer, and she is often required to appear in court on behalf of an individual officer-client. This type of relationship can be characterized as similar to the one a private lawyer has with her client.
Therefore, a traditional client-attorney relationship exists between the attorney general and officers and executive departments. The rules mandating and governing this relationship are most often established in judicial/professional ethics rules,[42] but there are cases in which the client attorney relationship has been judicially enforced.[43] This provides several interesting challenges because unlike traditional private attorneys, an attorney general has two sets of clients. If a traditional client-attorney privilege does exist, what happens when the clients’ interests are in conflict? Can both the people and the officers be clients at the same time? The next Part examines the case law and how courts have tried to apply a client attorney relationship within the context of the attorney general.
IV. CASE HISTORY: THE COURTS MODIFY THE TRADITIONAL CLIENT-ATTORNEY RELATIONSHIP FOR ATTORNEYS GENERAL
The case history discussing the client-attorney relationship between state officers and the attorney general is, admittedly, fairly limited. Several cases establish some basic foundations of this relationship, but mostly in contexts other than a suit by the attorney general against a state officer. This Part outlines these foundations and attempts to relate their holdings to the ability of the attorney general to initiate actions against state officers.
A. COMMON-LAW POWERS AND SUITS UNAUTHORIZED BY THE GOVERNOR
1. The Shevin Case: The Right to Initiate Actions
The principal case establishing the attorney general’s right to represent the public interest is State ex rel. Shevin v. Exxon Corp.[44] In 1973, Florida’s attorney general, Robert Shevin, filed an antitrust action against several major oil companies.[45] The defendants, lead by Exxon, argued Shevin did not have the right to initiate the lawsuit without explicit authorization from another officer or department within the executive branch.[46] The Fifth Circuit, reversing the district court’s earlier finding, held that the attorney general had a right to initiate the suit under state law.[47]
The basis of the Fifth Circuit’s decision was the common-law power of the attorney general. This holding was based in the historical precedent of the office originating under the crown. Relating this custom to the modern-day attorney general, the court wrote, “Florida has, since its pre-statehood period, enacted the common law in force where not in conflict with statute.”[48] The court found that Florida’s statutes were not comprehensive and acknowledged the Florida Supreme Court’s recognition of the “continuing existence of the Attorney General’s common law powers,” concluding that the attorney general must still retain her common-law powers.[49]
As the court reasoned, the attorney general is “the attorney and legal guardian of the people,”[50] meaning she may initiate suits on behalf of the people.[51] The court emphasized, “The Attorney General has the power and it is his duty among the many devolving upon him by the common law to prosecute all actions necessary for the protection and defense of the property and revenue of the state.”[52] The Fifth Circuit then took the opportunity to extend this reasoning by explaining that the attorney general’s power to institute litigation on her own “is as broad as the ‘protection and defense of the property and revenue of the state,’ and, indeed, the public interest requires.”[53]
Finally, the court addressed the question of whether, even if the attorney general has these common-law powers, she can initiate a suit without the authorization or direction of a state department or officer, such as the governor. Defendants cited two cases[54] in which the state supreme court held that certain agencies were not required to allow the attorney general to represent them in legal matters and could instead hire their own special counsel.[55] The defendants argued that these precedents illustrated that the attorney general could not initiate suits on her own because an interpretation to the contrary would make the holdings of those cases meaningless. The Fifth Circuit distinguished the cases by explaining that they did not involve the attorney general’s litigation powers. Furthermore, the court refused to address what would happen if a government body did object to the attorney general’s unsolicited representation: “[I]t is difficult to imagine such objections,” the court noted, because “[t]he individual government instrumentalities involved have something to gain from this suit.”[56] Thus, the court left open the door for arguments about what happens when an individual government instrumentality objects to representation.
2. The Feeney Case: A More Zealous Representation
Feeney v. Commonwealth established that the Massachusetts Attorney General also retained common-law powers.[57] When Helen Feeney was refused certification for two civil service positions, despite receiving high scores on her tests, she filed a complaint asserting sex discrimination.[58] The Commonwealth of Massachusetts, the Division of Civil Service, the Civil Service Commission, and the Director of Civil Service were all named defendants and were represented by the attorney general. After the district court found Massachusetts’s veterans’ preference statute[59] unconstitutional, the Commission and the Director asked the attorney general not to appeal the decision on their behalf.[60] Despite these objections, the attorney general appealed the decision. The Supreme Judicial Court sided with the attorney general, upholding his power to appeal a case without the consent of the state officials and departments.[61]
The court’s holding in Feeney is consistent with both Shevin and the preamble of the ABA’s Model Rules of Professional Conduct.[62] Like Shevin, the court found that the attorney general has a common-law duty to represent the public interest as well as the state and state officers.[63] Because of the public interest aspect, “the Attorney General must consider the ramifications of that action on the interests of the [state] and the public generally.”[64] The attorney general is chief law officer, and to allow other executive officers, “who represent a specialized branch of the public interest,” to manage the litigation “would effectively prevent the Attorney General from establishing and sustaining a uniform and consistent legal policy of the Commonwealth.”[65] To rule otherwise would place other executive officers over the attorney general in specific litigation, rendering her status as chief law officer meaningless.
Finally, the court held that the traditional client-attorney relationship did not apply. The court explained, “Where, in his judgment, an appeal would further the interests of the Commonwealth and the public he represents, the Attorney General may prosecute an appeal . . . .”[66] The Supreme Judicial Court, in essence, wrestled with the question of whether the attorney general represents the public interest or the state officers. In the end, the court came out on the side of the public interest. Arguably, Feeney can be viewed as supporting the proposition that the public interest comes first, even when the attorney general is representing state officers. In fact, the public interest is the reason for representing these officers in the first place, and this is why only the attorney general, not executive officers, can control the litigation. The public interest is the actual client.
3. The Attorney General Does Not Have to Appeal Adverse Rulings
Two years before Feeney, the Supreme Judicial Court of Massachusetts questioned some of the attorney general’s powers. In Secretary of Administration & Finance v. Attorney General, the Massachusetts Attorney General represented the Secretary in a civil case involving the sale of certain property to the Board of Trustees of State Colleges, but then subsequently decided not to appeal the court’s adverse ruling.[67] The governor asked the attorney general to appeal the case, and the Secretary insisted that the attorney general follow the governor’s request. When the attorney general still refused to prosecute the appeal, the secretary brought suit against the attorney general.[68] The secretary was represented by the governor’s counsel, and even though a strict reading of the state statute[69] seemed to indicate only the attorney general could represent the secretary, the court held that in situations where the attorney general’s powers were called into question, an executive officer or department could be represented by someone else.[70] This, however, was a very narrow exception and the court emphasized that, over the objections of the secretary, “something other than a traditional attorney-client relationship” exists between the attorney general and executive officers and departments.[71] In a situation where the governor or other state officer is simply in disagreement with the attorney general regarding an issue, such as whether to appeal a case, the Supreme Judicial Court made clear that it was inappropriate for the officers to be represented by outside legal counsel.[72]
The dissent in Secretary of Administration & Finance disagreed with this reasoning. Justice Kaplan argued that if an officer did disagree with the attorney general’s decision to appeal or not to appeal, she should be able to take her case to the governor. “At that point the chief executive,” the judge wrote, “if he sup-ports the official, ought to be able after due discussion to give directions to the chief law officer.”[73] Justice Kaplan’s dissent, however, relies heavily on the assumption that cases of disagreement will be rare, a position that is somewhat naïve considering the structure of the divided executive branch and the mixture of officers from different parties. He acknowledges that his approach, if it were the law, would virtually eliminate the attorney general as the chief law officer. Explaining his prioritization of officers, Justice Kaplan wrote, “I would accord so much primacy to the Governor. The opinion of the court intends to give a measure of primacy to the Attorney General, but leaves unclear just what it is.”[74] Kaplan’s solution to a disagreement between the governor and the attorney general, where the attorney general does not want to go against her conscience, is: “When directed in the exceptional situation to argue a cause truly repugnant to him [the attorney general] steps aside and gives way to special counsel.”[75]
B. THE REJECTION OF SHEVIN: CALIFORNIA APPLIES PRIVATELIKE CLIENT-ATTORNEY RELATIONSHIP STANDARDS
Perhaps the most important case to limit the discretion of the attorney general is People ex rel. Deukmejian v. Brown.[76] The case arose when the legislature passed the State EmployerEmployee Relations Act (“SEERA”),[77] and while the Governor was considering the bill, the Attorney General wrote the Governor urging him to sign it.[78] After the Governor signed the bill into law, several organizations sued claiming the SEERA was unconstitutional.[79] The Attorney General then met with the State Personnel Board, the executive agency served with the summons, and “outlined the legal posture of the board and described four legal options available to it.”[80] One week later, the Attorney General changed his position and initiated a suit against the Governor and other state agencies, asking for relief similar to that requested by the other organizations, but not representing them.[81]
The Supreme Court of California began its opinion with a discussion of ethics rules and the client-attorney relationship.[82] Oddly enough, aside from a lone Arkansas case, all the other cases cited by the court in this section were about private lawyers and the client-attorney relationship and did not address the unique situation of attorneys general. The state supreme court seemed to assume that a traditional client-attorney relationship existed between the state agencies and the attorney general. In fact, after describing the initial meeting between the agencies and the Attorney General, the court remarked, “This was a classic attorney-client scenario.”[83] And although the court wrote that it “acknowledge[s] ‘the Attorney General’s dual role as representative of a state agency and guardian of the public interest,’” it insisted on applying a traditional private client-attorney relationship to the attorney general.[84]
The court noted, “We find nothing in that circumstance, however, to justify relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients, particularly in litigation that arose during the period of the attorney-client relationship.”[85] There are two possible readings of this statement. First, the Deukmejian holding might be limited to situations where there is a previous client-attorney relationship. This presupposes not only a pre-existing clientattorney relationship between the attorney general and state officer, but also the prerequisites to creating such a relationship. This is the best possible reading of Deukmejian because it narrowly construes the holding to distinguish it from many future cases. Such prerequisites for a client-attorney relationship might include being asked by the officer or agency for representation or advice. The Deukmejian court might have liked to broaden these prerequisites to include holding a meeting with agencies and officials, but perhaps the court would have been satisfied simply with knowing that legal advice was given.
The second, more troubling interpretation of this statement is that the California Supreme Court realized its holding was limited in this case, but it was stating in dicta that the court could also foresee situations where the attorney general could never assume a position adverse to state officers. Under the second interpretation, the officer or agency is always the attorney general’s client. There is some indication the court might have intended this meaning because it included the phrase “or former clients.” According to this reasoning, the attorney general would be prohibited from taking an adverse position, not only in the present litigation, but also in all future litigation. This has the effect of freezing the attorney general’s decisions in time.
Like the Massachusetts Supreme Judicial Court in Secretary of Administration & Finance, the California Supreme Court argued that these limitations did not mean the attorney general was powerless or had to represent a client against her wishes. The court stated that the attorney general cannot be compelled to represent state officers if she believes them to be acting contrary to the law, and the attorney general may even withdraw from the statutorily imposed duty to act as their counsel.[86] Still, the attorney general cannot be proactive and take a position adverse to those same clients.[87] In effect, the Deukmejian court rejected the Shevin approach and stated that the attorney general does not have common-law powers.
The state supreme court relied heavily on the state constitution, which states that “[t]he Governor shall see that the law is faithfully executed.”[88] The court then compared that section with another section, which states that "[s]ubject to the powers and duties of the Governor, the Attorney General shall be chief law officer of the State.”[89] The Deukmejian court claimed that these provisions clearly meant the governor was in charge of determining the validity of the attorney general’s decisions, and the attorney general was her subordinate in such matters. This reading, however, is almost the exact opposite of a plain reading of the constitution. A plain reading implies that the governor simply ensures the laws are enforced, and the attorney general’s own powers are subject to the governor’s in that respect. The responsibility to ensure the laws are enforced does not imply the ability to question the constitutionality of those laws. Therefore, though the attorney general defers to the governor as to the execution of the laws, the attorney general retains the authority to determine “wherein lies the public interest” on issues such as the constitutionality of the laws. This reading of the California constitution protects the attorney general’s common-law powers rather than stripping them the way the Deukmejian court did.
C. RECENT CASE HISTORY
1. South Carolina Upholds Attorney General’s Power to Sue Governor
Deukmejian, and all its limitations on state attorneys general and presumptions in favor of the governor’s executive powers, has not been widely accepted. And although the California Supreme Court has not overruled the decision, it has not revisited the issue. More recently, the South Carolina Supreme Court examined many of the same issues in State ex rel. Condon v. Hodges.[90] In 2001, the South Carolina General Assembly passed an appropriations act that provided for baseline reductions to the recurring budgets of state colleges and universities.[91] Part of the appropriations bill required the transfer of $38.5 million from the Extended Care Maintenance Fund (“ECMF”) to the state’s colleges and universities.[92] The governor vetoed the appropriations act regarding the specific base-line reductions, which resulted in new expenditures.[93] In order to fix the imbalance, the governor indicated in his veto message that he had convinced several colleges and universities to return some of the funds appropriated from the ECMF.[94] The attorney general then sued the governor for violating the separation of powers.[95]
In Condon, one of the rare cases in which an attorney general took action against the governor, the governor asserted that the attorney general did not have the authority to bring suit against him because of the client attorney relationship. But the South Carolina Supreme Court held that “the Attorney General can bring an action against the Governor when it is necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.”[96] The constitutional provisions involved in Condon were very similar to those in Deukmejian.[97] Viewed in light of the alternative reading of Deukmejian,[98] this case can be seen as stating that although the attorney general must still defer to the governor when the governor is making sure the laws are faithfully enforced, she can step in when the governor is not ensuring the faithful enforcement of the law and sue the governor to uphold her duty. This would be consistent with the theory that the attorney general has the power to protect the rights of the public.
The South Carolina Supreme Court sided with the public interest over the constitutionally imposed client-attorney relationship.[99] The court interpreted article IV, section 15 of the state constitution as “being concerned with the Attorney General, through his assistance and representation of the Governor, bringing actions on the Governor’s behalf, against the other branches of government.”[100] Instead of imposing a client-attorney relationship, the court noted that “[t]here is no provision in the South Carolina Code or Constitution that explicitly prevents the Attorney General from bringing a civil action against the Governor.”[101] Thus, the attorney general has the authority to bring suit against the governor when it is to protect the public interest, such as “for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.”[102]
2. Georgia’s Exercise in Confusion
Two years ago, Georgia faced a situation similar to the one Massachusetts faced in Feeney. In Perdue v. Baker, Georgia’s governor, Sonny Perdue, sued to stop Attorney General Thurbert Baker from appealing a case to the United States Supreme Court.[103] After the 2000 census, the Georgia legislature reapportioned the state senate districts. In order to enforce the law, though, the state had to file a civil action in federal district court to obtain preclearance of the redistricting plan under the Voting Rights Act.[104] The federal district court held that Georgia failed to meet its burden of proving that the “redistricting plan did not have a retrogressive effect on the voting strength of AfricanAmerican voters.”[105] In response, the state legislature passed a new redistricting plan that achieved preclearance, but this new plan stated it would take effect only if the original redistricting plan could not be lawfully implemented under the Voting Rights Act.[106] Attorney General Baker appealed the ruling on the initial plan to the Supreme Court in order to obtain a final determination, and the Court agreed to review the case.[107]
Just over a week later, newly installed Governor Perdue requested that the attorney general dismiss his appeal.[108] Perdue insisted that the state constitution “vest[ed] his office with the chief executive powers to dismiss an appeal pending in the U.S. Supreme Court when the State of Georgia is the sole-named appellant.”[109] Baker disagreed, claiming that the state constitution vested his office with “exclusive authority in all legal matters related to the executive branch in state government.”[110] Because of the attorney general’s refusal to dismiss, the governor filed an action in the Georgia Supreme Court to force the attorney general to dismiss the appeal.
In its rather confusing opinion, the Georgia Supreme Court reaffirmed that the attorney general was the chief legal officer of the state.[111] But the court went on to state that “both the Governor and Attorney General have statutory authority to direct litigation on behalf of the State of Georgia.”[112] Although the attorney general has the “independent authority to represent the State in any civil action without the Governor’s request,”[113] the governor is the chief executive officer and is responsible for seeing that the laws are faithfully executed.[114] The result is that neither officer has the exclusive authority to control legal policy and actions involving the state.[115] The court wrote, “Instead, these provisions suggest that the Governor and Attorney General have concurrent powers over litigation in which the State is a party.”[116]
Although the state supreme court found that both the governor and the attorney general could direct litigation involving the state as a party, it held that the governor could not stop the attorney general from appealing the state’s redistricting case to the United States Supreme Court. In part this decision was based on the congruent duties of both officers, but the court also dismissed the governor’s argument that the Georgia Rules of Professional Conduct prevented the attorney general from taking a position opposite of the governor’s.[117] If the rules were construed to limit the attorney general in this way, the court reasoned, it “would eviscerate the Attorney General’s separate constitutional role.”[118] Because Attorney General Baker was acting within his constitutional and statutory duties, the court found the governor could not force the attorney general to dismiss the appeal.[119]
3. Colorado Establishes That Attorney General Can Sue the State
People ex rel. Salazar v. Davidson[120] brought together many of the issues raised in the above cases. Both the secretary of state and the governor asserted that the attorney general violated the rules of professional conduct concerning conflicts of interest, the division of decisionmaking authority between the attorney and client, and client loyalty.[121] The attorney general argued that he did not violate the client-attorney relationship and took a position similar to the Condon court’s — as attorney general he was representing the people of Colorado “in a highly important case.”[122] Attorney General Salazar emphasized that the attorney general’s “core responsibility is to represent the interests of the people of Colorado.”[123] In this way, Salazar argued for prioritizing the public interest over the attorney general’s other client — in this case the secretary of state. The public interest is at the “core,” which means that it is the attorney general’s first duty. It also implies the attorney general’s other duties flow from this “core responsibility.”[124] The traditional client-attorney relationship cannot interfere with the public interest, or else the “core responsibility” would shift from protecting the public interest to protecting the state officers and agencies. In his brief, Salazar reminded the court that in government, the attorney general client-attorney relationship “does not match the contours of the private attorney-client relationship.”[125]
On December 1, 2003, the Colorado Supreme Court handed down its decision in Salazar.[126] The court held that the attorney general had the right to bring an action before the state supreme court “in matters of great public importance.”[127] The attorney general, when bringing these types of cases, was the appropriate person because “it is the function of the Attorney General . . . to protect the rights of the public.”[128] Additionally, the court recognized that the state constitution allowed the court to determine original jurisdiction, and the separation of powers prevented the legislature from restricting this power.[129] Furthermore, the decision reinforced that Colorado’s attorney general retained her common-law powers unless specifically repealed by statute.[130] Finally, the court ruled that the attorney general did not violate the Colorado Rules of Professional Conduct[131] by suing the state and naming the secretary of state as the defendant.[132] The court noted that the Rules “explicitly recognize that government lawyers may ‘have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so.’”[133] Because the attorney general’s client is the “government as a whole,” she must consider the “concerns of the state” even though individual officers or agencies might not agree.[134] In other words, the attorney general must consider the concerns of the people. In this case, the attorney general was concerned with the constitutionality of the state’s congressional redistricting plan, and because he had to advise the secretary of state on the implementation of election laws, the Colorado Supreme Court reasoned that it only made sense for the attorney general to challenge the law.[135] With the standing issue resolved, the court held the legislature’s congressional redistricting plan violated the state constitution.[136]
D. A CURRENT CASE: MEDICARE AND MISSISSIPPI
In September and October of 2004, another fight between a governor and a state attorney general flamed up — this time in Mississippi. Governor Haley Barbour, in an effort to cut the state budget, decided that the state would no longer provide Medicaid to 48,000 people who also received federal Medicare coverage.[137] In response, several groups, including the Mississippi Center for Justice, AARP Foundation Litigation, the National Senior Citizens Law Center, and the National Health Law Program filed suit to enjoin the state Medicaid cuts.[138] Attorney General Jim Hood intervened on behalf of the plaintiffs, causing Governor Barbour to become incensed. “I’ve never heard of a case of a lawyer representing one party,” the governor said, “then two days before the case goes to court, he switches and represents the other party.”[139] Attorney General Hood countered that although his assistants had given advice to the Division of Medicare, the top Medicaid officials ignored his office’s advice.[140] He then said that the govenor’s office and the Medicaid program could hire outside counsel.[141] On October 1, U.S. District Judge Henry Win-gate ruled in favor of the attorney general and ordered the Medicaid coverage restored until January 31, 2005.[142]
E. SUMMARY
Applying a traditional client-attorney relationship is difficult because government lawyers, unlike private lawyers, potentially have multiple duties to multiple clients at the same time, in the same case. This situation mandates flexibility in any ethical standard that is applied to attorneys general. It is not entirely feasible for the attorney general and state officers always to be engaged in a client-attorney relationship because it would limit the attorney general’s ability to represent the people effectively. Some courts have resolved this dilemma by holding that the attorney general represents officers when statutorily mandated and when the officers actually request advice or representation. The Deukmejian court took this approach. However, the California Supreme Court left the door open to the idea there might be some client-attorney relationship obligations even though there has been no request or advice given. Secretary of State Davidson presented this argument in Salazar. Davidson’s argument, however, cannot be sustained because it, too, will impair an attorney general’s ability to represent the people. Both of these arguments prioritize the representation needs of the executive officers and agencies over the representation needs of the people. There must be a balance between the attorney general’s duties to his two clients.
V. THE ATTORNEY GENERAL, THE CLIENT-ATTORNEY RELATIONSHIP, AND THE ABA’S MODEL RULES OF PROFESSIONAL CONDUCT
Whether it has been established through professional conduct rules or case law, almost every state imposes some version of the client-attorney relationship between the attorney general and other executive officers and departments.[143] Therefore, it is important to evaluate this relationship in the context of the ABA Model Rules of Professional Conduct, which outline the traditional client-attorney relationship. Admittedly, the Model Rules are not, in fact, the rules anywhere. Instead, each state adopts its own ethics rules, but every state, with the exception of California, has modeled its own rules on one of the two ABA models.[144] Thus, this Note will use the ABA Model Rules. These ethics rules establish how a traditional private attorney should interact with her client. State attorneys general, however, are not private attorneys and have different obligations. Comparing traditional rules of professional conduct with the realities of the attorney general’s office illustrates the problem with the application of this client-attorney relationship standard.
A. RULE 1.2
Rule 1.2(a) of the Model Rules of Professional Conduct states, “[A] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . . A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.”[145] This rule sets out the idea that the client is in control of the objectives of the litigation, and it is the lawyer’s duty to work towards achieving the client’s lawful objectives. This includes abiding by “a client’s decision whether to settle a matter.”[146] Generally, however, the means by which these objectives are achieved are left up to the lawyer in consultation with her client.[147] In explaining the purpose of this rule, the Ohio Su-preme Court wrote, “Unlike a salesperson, the good lawyer’s counsel is not directed to the sale of a product but to the best interests of the client. A lawyer’s counseling is more than informing ‘his client about the legal consequences of pursuing a particular objective that the client has already identified and chosen.’”[148] The purpose of this rule is to ensure a lawyer is a counselor and not just a service provider.
At first it might seem easy to apply this rule to attorneys general. It seems only reasonable to require the attorney general to act as counsel rather than running roughshod over her officer-clients. But before this rule can be applied, the threshold question of who is the “client” must be answered. As discussed in Part III, the state attorney general has two clients, and sometimes the clients’ interests conflict with each other’s. Most jurisdictions have applied the traditional client-attorney relationship to the attorney general and state executive officers and ignored the client status of the people and public interest.[149] Assuming, arguendo, the true client is the state executive officer, the next question is when the officer is a client.
People ex rel. Deukmejian v. Brown[150] implies the executive officer must ask for the attorney general’s services before the attorney general is obligated to act as counsel and maintain a traditional client-attorney relationship.[151] In that case, the governor had asked for the attorney general’s advice and so the court found no problem assuming the governor was the attorney general’s client.[152] State ex rel. Caryl v. MacQueen,[153] a West Virginia case that has been superseded in part but not directly overruled,[154] explained that the attorney general was obligated to give legal advice, prosecute and defend suits, and appear in court on behalf of the state. Both cases recognize that the attorney general owes a duty to these officers and departments, and further recognize that this client-attorney relationship is activated when the officer or department asks for legal advice.
The approach taken in Deukmejian and Caryl is not effective in the majority of states that still recognize the attorney general’s common-law powers. Florida ex rel. Shevin v. Exxon Corp. asserts that, as part of her common-law powers, the attorney general has the right to initiate lawsuits on her own and does not have to have the permission of the officer or agency to do so.[155] Surely any court that claims the client-attorney relationship attaches to the attorney general and state officers would assert the relationship still exists in Shevin-like situations. This conclusion could not be based on the “ask theory,” however, because in Shevin-like situations the attorney general initiates the action on her own.
Simply applying Rule 1.2(a) to the attorney general does not clarify the client-attorney relationship in this context because the terms cannot be easily defined.[156] In a situation where there is more than one possible client, and there is a required duty to both, the rule is extremely difficult to interpret. What does “client” mean? Also, there are often provisions under state law that hold that the attorney general is in control of the litigation, even if the state officer is a client, and need not follow the client’s directions as much as Rule 1.2(a) would direct in the private sphere.[157] It is difficult to apply this rule in the attorney general context.
B. RULE 1.6
Another traditional rule of the client-attorney relationship that is applied to attorneys general states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . . .”[158] This was a central point in both Deukmejian and in Secretary of Administration & Finance. In Deukmejian, the court felt it was improper for the attorney general, after discussing the case with the governor and offering him legal advice, to then take the opposing side.[159] The reason is presumably that the attorney general had access to confidential client-attorney documents and information that would be unfair to then use against the governor. In another example, the West Virginia attorney general was found to have violated the client-attorney relationship with the state tax commissioner when he released confidential tax information.[160] This rule is not hard-and-fast, though, in the attorney general sphere. Several cases have explained that not all of the attorney general’s documents are protected by the client-attorney relationship. For example, in State v. Hogan, the Indiana Court of Appeals wrote, “A client state agency may not defeat the production of evidence by merely forwarding a pre-existing document to the Attorney General in anticipation of litigation.”[161] Furthermore, in a New York case, the documents at issue were not exempt from disclosure under the Freedom of Information Act because they only contained the state agency’s final policy to be applied to all litigation in general — the documents were not work product for a particular case.[162] These cases illustrate that the attorney general is subject to the public disclosure of documents that a private attorney might otherwise not be. Because the attorney general has the power to litigate on behalf of the state, and even to prosecute state officers and departments, courts have struggled with this issue, trying to balance the protection of the attorney general’s officer-client with effective representation the public-client.[163]
Rule 1.6 seems to prevent the attorney general from “playing” a state officer simply to gain information and access to documents that could not be obtained through traditional legal means. But some courts have realized it is not easy to apply this rule strictly.[164] Given that the attorney general is charged by state law to represent officials and departments, an official or department might take advantage of this mandate to protect incriminating evidence. Those courts that have not strictly applied Rule 1.6 understand that there should be some flexibility in order to protect the attorney general’s role as chief law officer from abuse by the mandated clients.[165]
C. RULE 1.7
According to Rule 1.7(a), “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”[166] This Rule plainly states that representing two clients simultaneously is unethical when the attorney has a conflict of interest. The comments to Rule 1.7(a) note, “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”[167] Even laypeople recognize this Rule’s prohibition against conflicted representation as one of the foundations of the client-attorney relationship. Representing two clients in the same matter at the same time is riddled with potential difficulties. Yet, surprisingly, almost every state allows its attorney general to do just that — represent two officers at the same time on the same case.
State attorneys general can represent two agencies or officers at the same time without violating this ethical rule.[168] In People ex rel. Sklodowski v. State, the beneficiaries of a state retirement system sued the system, claiming the legislature and state officials were attempting to transfer retirement funds to the state’s general revenue fund.[169] The Illinois Supreme Court held the Attorney General could represent both the plaintiffs and the state retirement system as long as he did not have a personal interest.[170] The court reasoned, “[T]he Attorney General serves the broader interests of the State rather than the particular interest of any agency.”[171]
Courts have recognized the duality of the attorney general in light of this rule. But the question remains: Who is the client? The Illinois Supreme Court implied the real client is the public interest, and this puts the attorney general in the strange position of representing both parties in the same case. The Model Rules explain that “[r]esolution of a conflict of interest problem under this Rule requires a lawyer to . . . clearly identify the client or clients.”[172] This approach is almost laughable in the current context of the attorney general because, in many cases, it is nearly impossible to identify the people or the officer as the primary client. Courts have shown inconsistency between their recognition of the “public interest exception” to the conflict of interest rule, on the one hand, and their concern with Rule 1.6 and the revealing of information on the other. The only difference is that one representation is concurrent whereas the other representation is subsequent. Oddly enough, the concurrent representation is considered legitimate while the other is not.[173] It seems that in a subsequent representation situation, the court and parties are on notice and there can be some monitoring, while at the same time the attorney general is cut off from further privileged information. In a concurrent representation situation, there is notice, but it will be more difficult to monitor what the attorney general knows and what she is passing on to — or keeping from — her clients. The attorney general has constant access to privileged information in these situations.
D. RULE 1.8
Finally, Rule 1.8(b) states, “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent . . . .”[174] This rule is similar to Rules 1.6 and 1.7 and goes to the heart of the attorney general’s representation. A classic example of the enforcement of this rule in the attorney general context is Deukmejian.[175] The court feared that if the attorney general could proceed with the action, she might use her previous knowledge against the governor.[176] This action, in turn, could cause the officer or department client not to be completely frank with the attorney general.[177]
The comment to the rule explains, “Use of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty.”[178] But does an attorney general forever owe a duty of loyalty to the governor after giving legal advice? According to Deukmejian, the answer appears to be yes, at least with respect to the same case.[179] Not only does this protect the officer’s interests, but it also encourages the officer to be completely honest with the attorney general. But perhaps the attorney general’s duty of loyalty is to her other client, the people of the state. Would it not be a violation of loyalty to the people if the attorney general could not use the information, leaving her only option to withdraw completely from the case? Duty of loyalty is an especially confounding question in these situations be-cause to protect the officer-client, sometimes the public-client must come second.
E. RULE 1.11
One specific rule addresses government lawyers, however. Rule 1.11(d) states, “Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee (1) is subject to Rules 1.7 and 1.9 . . . .”[180] The first comment to Rule 1.11 stresses that “a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7.”[181] The commission’s intent seems to indicate that government lawyers must still abide by the requirements of Rule 1.7,[182] specifically concurrent representation, and the comment limits Rule 1.11’s authority by explaining that this rule is subject to statutes and regulations which circumscribe it.[183] The second comment further limits the application of Rule 1.11 by noting that “paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.”[184] Thus, Rule 1.11 is a weak attempt to apply the Model Rules to government lawyers, but the several loopholes and exceptions illustrate the difficulty with this application in practice.
F. PREAMBLE AND SCOPE
In addition to the loopholes contained in Rule 1.11 and its comments, the scope section of the preamble to the Model Rules further limits the traditional client-attorney relationship in the government lawyer context. According to the preamble, a government lawyer is not subject to many of the rules relating to the private client-attorney relationship because of “various legal provisions, including constitutional, statutory and common law.”[185] Among the exceptions noted is the authority of a government lawyer to “decide upon settlement or whether to appeal from an adverse judgment” on behalf of the government.[186] Also, the preamble notes that government lawyers, acting under the supervision of the state attorney general, “may be authorized to represent several government agencies in intragovernmental legal controversies . . . .”[187] These exceptions are not exclusive because they are preceded by the phrase “[f]or example,” suggesting that the ABA acknowledges there are other areas where private lawyer rules of professional conduct do not apply to government lawyers.[188] The only guidance the ABA gives, then, is the initial statement about “constitutional, statutory and common law.”
Interestingly, prior to the 2002 version of the Model Rules, the preamble also explained that government lawyers “may have authority to represent the ‘public interest’ in circumstances where a private lawyer would not be authorized to do so.”[189] This language was stricken from the most recent edition of the Model Rules. This omission is somewhat confusing because its deletion could mean either that (1) the ABA no longer recognizes as a specific exception to the Model Rules that government lawyers have the authority to represent the “public interest,” or (2) private lawyers now have the authority to represent the “public interest” in the same way government lawyers do.[190] Although there might be some legitimate reasons for wanting private lawyers to consider the public interest,[191] the ABA probably did not intend to give private lawyers this type of free reign. Not only does this conflict with the role of government lawyers who are already designated to defend the public interest, it also dilutes the Model Rules’ emphasis on “zealous advocacy.” This is probably not the ABA’s intended meaning. The other option is that the ABA is weakening the public interest exception for government lawyers. Although an authorization to represent the public interest might still be gleaned from the preamble because the exceptions for government lawyers are not exclusive, it is still telling that the ABA chose to remove this particular sentence.
G. CONCLUSION REGARDING THE RULES
The Model Rules, through Rule 1.11, apply themselves to government lawyers, including attorneys general.[192] But there are so many exceptions to the Model Rules — specifically those contained in Rule 1.11, the Preamble, and the Scope — that in practice the ability to enforce the traditional client attorney relationship is weak. Considering the poor fit between the Model Rules and the role of an attorney general, it does not make sense to apply the traditional client-attorney relationship to the attorney general and her clients. States often mandate through ethical codes or other means that a client-attorney relationship exists between the attorney general and the state officers and executive departments.[193] Still, courts have tip-toed around the issue and carved out some exceptions, which, up to a point, recognize the uniqueness of the attorney general’s situation.[194] On closer scrutiny, however, these court rulings and ethical codes prove to be an inconsistent and incomplete patchwork. Most importantly, even the preamble to the Model Rules suggests the ABA recognizes the inapplicability of many of the rules to government lawyers. The numerous and unspecified exceptions to the client-attorney relationship for government lawyers illustrate the ineffectiveness of the Model Rules to the government context.[195]
In addition, the Model Rules were primarily drafted with the private bar in mind, not the government lawyer.[196] The result is that the rules do not provide clear answers to the ethical problems state attorneys general face.[197] This is not entirely surprising given that most of the drafters of the Model Rules were private lawyers. The first Model Rules were drafted in 1983 by the ABA’s Kutak Commission, named for its chairman Robert Kutak.[198] Kutak, as co-founder of Nebraska’s largest national law firm,[199] was a member of the private bar and in control of the committee charged with promulgating the ABA’s new ethical standard. He was aided by Geoffrey Hazard, a well-known proponent of the private bar’s ethical standard and reporter for the Kutak Commission.[200] Today, the ABA’s Ethics 2000 Commission reviews and reports on the Model Rules.[201] Although the Ethics 2000 Commission consists of judges and law professors in addition to private lawyers, it appears that only one member has any experience actually working as a government lawyer.[202] What works well for the private bar, however, does not necessarily work well for government lawyers, including an attorney general. Because of the heavy influence of the private bar, the Model Rules are simply inapplicable to many situations and problems attorneys general face.
VI. THE NEW REGIME: ABANDONING THE APPLICATION OF PRIVATE BAR ETHICAL STANDARDS TO THE STATE ATTORNEY GENERAL
A. THE ATTORNEY GENERAL DOES NOT VIOLATE THE CLIENT-ATTORNEY RELATIONSHIP BY BRINGING ACTIONS AGAINST THE STATE OR STATE OFFICERS
1. In Salazar, Secretary of State Davidson’s Underlying Argument Would Allow Executive Officers to Unreasonably Intrude into the Legal Sphere
The secretary of state of Colorado argued that attorney general Salazar could not petition for an injunction against her because neither she nor any other executive officer asked him to intervene.[203] Additionally, Davidson claimed the Colorado attorney general did not retain common-law powers and was not the “people’s elected chief law officer.”[204] Therefore, the secretary of state’s position advocated that the attorney general can only act when the governor or other executive officer asks her to, and in cases where the attorney general does not want to act, she can step aside.[205] This argument, if put into effect, would substitute any executive officer for the attorney general in matters of litigation. When considering whether to bring an action, whoever makes the final decision presumably will take into account the public interest. The secretary of state’s position was that she, not the attorney general, should be the one to determine the public interest. Concededly, the secretary of state is an elected officer, but so is the attorney general. The question, then, is why a secretary of state, whose duties and responsibilities fall mostly outside of the legal sphere, is more qualified than an attorney general to make this public interest decision. If anything, an attorney general is uniquely qualified given the fact that the voters elected her to the post of state’s lawyer, thus allowing her to represent the state in the legal sphere. However, Davidson did not answer this question and simply argued that Salazar did not have the ability to decide the public interest at all, in the end making him wholly subordinate to all other executive officers.[206]
An attorney general’s power to bring actions against state officers without their consent regarding the enforcement of laws actually leads to an optimal construction of the divided executive branch. As noted above, by creating the divided executive branch, framers of state constitutions obviously felt there were additional benefits to splitting up the branch into separately elected state officers and granting them specific spheres of power.[207] In the case of the attorney general, the framers must have considered the attorney general to be the executive officer of the legal sphere. As the executive branch officer situated in the legal sphere, the attorney general, through her powers to initiate and defend suits on behalf of the state, separates the powers of the other executive officers and ensures that no officer can spread her influence into other spheres.
Most courts would agree that the attorney general, acting as the “chief law officer” of the state, has “control over the conduct of litigation” involving the state.[208] The Feeney court reasoned that part of this control “includes the power to make a policy determination.”[209] In the struggle to determine who gets to make the ultimate policy decision, it should be acknowledged that the attorney general is in the best position to bring these types of actions. First, the attorney general can be analogized to the law firm of the state.[210] Thus, the attorney general’s office, by its nature staffed with lawyers dealing with various legal issues on a daily basis, is in the best position to deal with substantive legal issues. Aside from this fact, the attorney general is often required to defend the state in appellate courts.[211] The Supreme Judicial Court speculated that “[t]he Legislature thereby ‘empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy for the Commonwealth.’”[212] This is an interesting concept, which makes sense in the context of the public interest as the primary client. In other words, given the structure of the divided executive branch, where different officers can be from different parties, if the attorney general were simply the lawyer in a traditional client-attorney relationship, the result could be a patchwork quilt of policies argued before and enforced by the courts. But control over appeals is not necessarily only an affirmative power — the attorney general has the ability to also refuse to appeal a case against the wishes of the governor, such as in Secretary of Administration & Finance.[213] This interpretation — even to the extent that the governor is not allowed to hire outside counsel to pursue the appeal — is necessary to maintain the attorney general’s chief legal officer status. Thus, both the Feeney and the Secretary of Administration & Finance courts see the attorney general as in the best position for helping to further a more consistent policy for the public interest in the legal sphere.
Another argument in favor of allowing the attorney general to bring these types of actions is efficiency. The attorney general does not have to be in favor of or against a law, but by bringing these actions she is only seeking a determination by a court about the constitutionality of the law.[214] By bringing these actions before a court early, rather than waiting until a law goes into effect and perhaps harms the people of the state, the attorney general might save the state time and money. The attorney general could save time because the court determines the statute’s constitutionality before the law goes into effect. Money is also saved by preventing damage caused by enacting and enforcing a law that is eventually ruled unconstitutional. Although this approach requires the attorney general to carefully consider what challenges are truly in the public interest, aside from the attorney general’s good-faith effort,[215] budget and time concerns will practically force her to pick specific battles rather than challenge every law the legislature passes that session.[216]
Finally, some critics will argue that unless constraints are imposed, zealous attorneys general will proceed with litigation of this nature only for political reasons. Notwithstanding the economic considerations mentioned above, this is not necessarily a bad thing. The most likely reason an attorney general challenges a law for political reasons is because the law is politically motivated. If any act is to be closely scrutinized, politically motivated acts are certainly some of the most worthy. The Salazar case is a perfect example of a politically motivated act. Only two years after Colorado’s congressional districts were redistricted, the newly Republican-controlled legislature drew up new districts, with the effect of benefiting that party. Presumably, the point of redistricting is to ensure that state citizens are equally represented according to the state’s population.[217] Although political gerrymandering is acceptable in principle, it is still impermissible to cause discriminatory vote dilution.[218] Because of the political reasons behind the legislature’s passage of the new redistricting plan, it is not unreasonable for the attorney general to be politically motivated in challenging the case. This challenge assures that political measures that have a public interest element are subjected to the full checks and balances test before they become effective. The courts will decide the constitutionality and legality of these political measures before they can adversely affect the people directly, thus helping to improve the overall stability of the law. Another response to the argument that attorneys general might be acting out of their own self-interest is that the political process will act to constrain over-zealous attorneys general. In the vast majority of states, the people directly elect the attorney general. Thus, if an attorney general is over zealous and is creating unacceptable conflicts between government entities, she can be voted out of office. In other words, an attorney general who does a bad job can always be fired.
B. THE PRIVATE CLIENT-ATTORNEY RELATIONSHIP STANDARD SHOULD NOT APPLY TO STATE ATTORNEYS GENERAL AND STATE OFFICERS AND AGENCIES
1. Current Conception of Client-Attorney Relationship Emphasizes the Officer-Client over the Public-Client
Of course, in many instances the position of the officer-client and the position of the public-client are the same, so there is no real conflict. The attorney general can serve both equally without any trouble. But inevitably there will be situations where the two clients’ interests will come into conflict with each other. The natural response to these situations is to prioritize the clients. Courts, it seems, have attempted to construct different prioritizations for different situations, but it appears that the result is a clear emphasis on the officer-client at the expense of the public-client. This prioritization is enforced against the attorney general through the haphazard application of the traditional client-attorney relationship. At the very least, in situations where there is a conflict between the two clients, the attorney general should be able to choose.[219] Instead, the attorney general often can only choose between representing the officer or stepping aside altogether, leaving the officer to secure her own counsel.
Another argument why the public-client should be prioritized over the officer-client is that state government exists to benefit the people, not any particular office or office holder. Officers are simply a means by which the people’s will is to be carried out. Therefore, representing state officers can be seen as protecting the public interest. Officers are elected to perform certain tasks and assume certain responsibilities. But sometimes officers, intentionally or unintentionally, stray from these duties. When statutes instruct the attorney general to represent officers or agencies, they are actually instructing her to represent the public interest as represented by these officers and not the officers themselves.
Some critics, attempting to defend the application of the traditional client attorney relationship, note that allowing the attorney general to switch sides in the middle of a case (either because she changed her opinion or because there is a newly elected attorney general) chills relations between the executive officers. For example, the client-attorney relationship protects clients by ensuring that their lawyer will not use confidential information against them in the future.[220] Arguably this encourages clients to be truthful and forthright with their counsel. It would be naïve to suggest that this is not also a concern in the state attorney general case. However, this is not a major problem, considering that many of the conflicts between the governor and attorney general mentioned here involve questions of policy. This is not exactly analogous to the private attorney and client in either a civil or criminal suit. The interests being protected are different; the state officer is actually arguing over a policy position, and wants protection against the possibility that the attorney general will change her own position. Thus, while there is a slight concern, the risks are actually minimal.
2. Reprioritization of Clients
In order to account more for the public interest, there should be a reprioritization of the attorney general’s clients. In situations where there is a conflict between the officer-client and the public-client, the public interest should trump the representation of state officers. Accomplishing this feat means abandoning the application of the traditional client-attorney relationship to attorneys general and state officers. The current client-attorney relationship standard was heavily influenced by private lawyers and was written to benefit the private bar.[221] Indeed, these rules might work well for the private bar, but they are not easily adjusted for the relationships encountered by government lawyers, including the attorney general. The Model Rules do not fully take into consideration the duty of government lawyers to represent the public interest.[222] Legislatures and courts should recognize the primacy of the public interest and not attempt to apply the private attorney-client relationship standard to attorneys general. Courts could allow state attorneys general to switch sides on an issue. Rule 1.7 is simply inapplicable where the identity of the attorney general has changed due to election or removal. It does not make sense to hold the new attorney general, who has no previous involvement in a case, to inflexible client-attorney rules. Even in situations where the current attorney general (as opposed to a previous attorney general) has provided some advice to an officer, there could be several reasons for an attorney general to want to change sides, such as discovering new information, or being legitimately convinced that her prior position was wrong. In cases where the attorney general has previously given advice to an officer, the court could require a “good faith” showing on the attorney general’s part in order to avoid situations where an attorney general might only make the switch for political gain. This good faith showing could be applied either to the advice she previously gave to the officer or to the current case brought before the court. It is not necessary for the attorney general to actually prove good faith because simply providing a good faith reason — whether pretextual or not — provides an adequate check on client switching based on political motivations alone. In other words, it really does not matter if an attorney general had political motives if her actions can be also justified as protecting the public interest.
This type of flexibility is not unheard of for the attorney general. A recent example is the case of former Alabama Chief Justice Roy Moore. In 2003, then-Chief Justice Moore was sued by a group of citizens over a monument of the Ten Commandments he had installed in the Supreme Court building.[223] Initially, Alabama Attorney General Bill Pryor supported Moore, attending Ten Commandment rallies and even supplying lawyers from the attorney general’s office to help in Moore’s defense.[224] But when Moore still refused to remove the monument after a district court, and later an appellate court, ruled that it violated the Establishment Clause, attorney general Pryor switched sides and filed ethics charges against Moore.[225] In his arguments, the attorney general said, “[T]he chief justice had put himself above the law. . . . What does it mean to have the rule of laws and not of men? That is the fundamental question.”[226] After a short deliberation, the Alabama Court of the Judiciary voted unanimously to remove the chief justice from the state supreme court.[227]
Although this is a special case involving a judicial officer rather than an executive officer, it illustrates how an attorney general can change her stance in order to best serve the public interest. At first, Attorney General Pryor believed it was in the public interest to defend the chief justice. He acted in his capacity to defend and represent a state officer. If the traditional client attorney relationship were applied, the attorney general would not have been able to switch sides against his former client. He would have been forced to step aside, the effective result being a continued standoff between the chief justice and the federal judiciary. Instead, when the attorney general felt it was in the public interest to remove Moore from the bench, he could proceed with filing ethics charges.
The Alabama case is one example of how the reprioritization of clients is possible and effective. The public interest was best served by allowing the attorney general to switch clients. An even better approach, though, is to view Pryor as never switching clients. Instead, the attorney general viewed the chief justice as a government officer with a duty to serve the public interest. According to this view, Pryor only represented one client the whole time — the people of Alabama. When Pryor no longer considered the chief justice as acting in the public’s interest, he filed ethics charges. This is a good approach towards the role of the attorney general in the divided executive branch. The attorney general has one client — the people — and officers are subordinate to that client because the office itself is a tool for the people to govern. Considering this, it is odd to give deference to officers only because they are identifiable people whereas the public interest is an abstract concept. In order for the public interest to be realized, officers cannot be seen as individuals but need to be seen as abstract concepts themselves. When no real person is involved, it is doubtful that many courts would still insist on applying the traditional client-attorney relationship.[228] Courts insist on applying the traditional client-attorney relationship because they see two individual people, the attorney general and the officer, interacting with each other, but this is the wrong way to analyze the situation.
Finally, the Model Rules can be helpful as a set of “guidelines” for government lawyers. However, they are not “rules” that attorneys general should be required to follow. Instead, the Model Rules are advisory opinions only. Attorneys general, and government lawyers in general, should be subject to the constitution and laws — including ethics laws — that are passed democratically within their state. These laws carry with them the force of a democratic mandate. At least under this approach, the client-attorney relationship standard is determined by the people of the state — or by a legislature composed of elected representatives — and not by the private bar.
VII. CONCLUSION
State attorneys general are rare in the legal community because they owe allegiances to two clients — the “people” and the executive officers and agencies. Unfortunately, sometimes these clients come into conflict with each other. In order to decide which client receives priority during these conflicts, many courts have applied various rules of the client-attorney relationship to the attorney general and the officers. These rules almost always favor the officers at the expense of the public-client. However, this outcome is at odds with the idea that the attorney general is elected by the people to serve the people of the state. Since the attorney general has the power to defend the public interest, she should prioritize the public interest over the personal interests of the officer. As part of her duties, the attorney general should be able to sue state officers in order to represent the public interest, without violating the client-attorney relationship with those officers. This is best accomplished by not applying the current Model Rules standard of the client-attorney relationship because those rules do not fully take into account the attorney general’s duties. Instead, by holding attorneys general subject to the constitution and laws of their state, the public interest can be further advanced.
1 Julia C. Martinez, Remap Boosts GOP’s Grip, New Lines Fortify Hold on House, Anger Dems, DENVER POST, June 16, 2003, at A1. Originally in 2001 the Colorado legislature failed to agree on a redistricting plan, so the following year a Colorado state judge was required to set the new congressional boundaries. Id. Attorney General Salazar challenged the constitutionality of the subsequent legislatively designed congressional redistricting plan by arguing that Colorado law only allowed one redistricting after each national census. See Petition Pursuant to Colo. Const. Art. VI, § 3 at 17, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA133).
2 Julia C. Martinez, GOP Remap Challenged, Attorney General Asks Top Court to Block 11th-Hour Law, DENVER POST, May 15, 2003, at B1. In November 2004, Ken Salazar was elected to the United States Senate. See Mark P. Couch & Karen E. Crummy, Senate Seat Goes Blue as Salazar Ices Coors, DENVER POST, Nov. 3, 2004, at A1.
3 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 19-21, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147) (arguing that attorney general has power “to bring any action which he deems to be necessary for protection of public interest,” including “power to initiate a suit questioning the constitutionality of a statute”) (quoting State v. Finch, 280 P. 910, 912 (Kan. 1929)); 7 AM. JUR. 2D Attorney General § 7 (2003); see also Julia C. Martinez, Remap Headed to Judges, State High Court Will Hear Petition from AG to Scuttle Redistrict Plan, DENVER POST, May 16, 2003, at A1.
4 Petition for Writ of Injunction and Writ of Mandamus Pursuant to Colo. Const. Art. VI, § 3 at 8, Salazar (Colo. 2003) (No. 03SA147).
5 Id. at 6.
6 Id. at 3.
7 Id. at 15-16.
8 79 P.3d 1221 (2003).
9 Of course, the same is true for district attorneys, assistant attorneys general, or any other government lawyer. To simplify matters, assistant attorneys general can be considered as acting under the command of the official attorney general. Additionally, many of the arguments in this Note could apply to district attorneys and other government lawyers, but often they are not constitutional officers in the same sense as the attorney general, and they do not act in the same capacity or with the same purpose.
10 This Note does not, however, address the client-attorney privilege at the federal government level. In the federal government, unlike most state governments, the U.S. Attorney General is appointed by the executive, and the U.S. Attorneys work directly under the Attorney General. For articles that address this issue, especially in the Independent Counsel context, see, e.g., Katy J. Harriger, Damned If She Does and Damned If She Doesn’t: The Attorney General and the Independent Counsel Statute, 86 GEO. L.J. 2097 (1998); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197 (1999); Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. CHI. L. REV. 1293 (1987); Michael Stokes Paulsen, Who “Owns” the Government’s Attorney-Client Privilege?, 83 MINN. L. REV. 473 (1998). Also, this Note contains a broader focus on state attorneys general nationwide, as opposed to the attorney general of just one state. See, e.g., Michael S. Gilmore, Who Is the Public Attorney’s Client?; How Do the Public Attorney’s Rules for Conflict of Interest Differ from the Private Attorney’s, ADVOC., Feb. 2002, at 10 (briefly examining ethical role of Idaho attorney general); Bill Aleshire, Note, The Texas Attorney General: Attorney or General?, 20 REV. LITIG. 187 (2000) (discussing duties of Texas attorney general to its client, the state of Texas); Michael B. Holmes, Comment, The Constitutional Powers of the Governor and Attorney General: Which Officer Properly Controls Litigation Strategy When the Constitutionality of a State Law Is Challenged?, 53 LA. L. REV. 209 (1992) (examining Louisiana attorney general’s role in controlling state litigation).
11 GORDON S. WOOD, THE AMERICAN REVOLUTION: A HISTORY 142-43 (2002) (explaining that by the mid-1780s, “[i]t began to seem that the once benign legislative power was no more trustworthy than the detested royal power had been”).
12 Patrick C. McGinley, Separation of Powers, State Constitutions & the Attorney General: Who Represents the State?, 99 W. VA. L. REV. 721, 722 (1997).
13 See id. (“In forty-three states … the executive department operates under supervision of an elected Governor and elected executive department officers.”). The states that do not have separately elected executive officers aside from the governor include Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee, and Wyoming. See STATE ATTORNEYS GENERAL: POWERS AND RESPONSIBILITIES 15 (Lynne M. Ross ed., 1990) [hereinafter STATE ATTORNEYS GENERAL].
14 McGinley, supra note [12], at 722. Of course, this is not true in all instances. For example, in New York, the comptroller and the attorney general are individually elected. N.Y. CONST. art. V, § 1. The lieutenant governor runs on a ticket with the governor, and they are both elected jointly. Id. art. IV, § 1.
15 Jason Lynch, Note, Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation, 101 COLUM. L. REV. 1998, 2002 (2001); see also Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. FLA. J. L. & PUB. POL’Y 1, 6 (1993). In five states (Alaska, Hawaii, New Hampshire, New Jersey, Wyoming), the governor appoints the attorney general, whereas in Maine the legislature picks the attorney general by secret ballot. Lynch, supra, at 2002. The Tennessee Supreme Court appoints its state attorney general. Id. This Note is primarily concerned with those forty-three states where the people directly elect the attorney general, although many of the arguments here could easily be applied to the other seven attorneys general, albeit in a modified form.
16 See State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 782 (Minn. 1986) (stating that state constitution framers made these offices constitutional because they did not intend “to afford the legislature the power to abolish these offices by statute”).
17 See, e.g., McGinley, supra note [12], at 725 (giving examples of both West Virginian constitutional and statutory duties); see also MO. CONST. art. IV, § 12; MO. REV. STAT. §§ 27.010-27.100 (2001).
18 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 11-12, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147); see also State ex rel. McGraw v. Burton, 569 S.E.2d 99, 110 (W. Va. 2002) (“This [executive] separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands.” (quoting State ex rel. State Bldg. Comm’n v. Bailey, 150 S.E.2d 449 (W. Va. 1966))).
19 Kiedrowski, 391 N.W.2d at 782.
20 As of March 1, 2005, nineteen of the forty-three states that directly elect their attorneys general have a governor and an attorney general from different parties. See Project Vote Smart, at http://www.vote-smart.org (last visited Mar. 1, 2005).
21 STATE ATTORNEYS GENERAL, supra note [13], at 15 (“The method of selection of Attorney General is specified by 43 states in their constitutions.”); 7 AM. JUR. 2D Attorney General § 1 (2003); see also Deborah K. Kearney, The Florida Cabinet in the Age of Aquarius, 52 FLA. L. REV. 425, 427 (2000) (describing the Florida Attorney General as an independently elected member of Florida’s executive cabinet); Aleshire, supra note [10], at 214 (describing the Texas Attorney general as an officer of the executive branch).
22 See supra note [15] and accompanying text.
23 See, e.g., HAW. REV. STAT. § 28-1 (2002) (“The attorney general shall appear for the State personally or by deputy, in all the courts of record, in all cases criminal or civil in which the State may be a party, or be interested, and may in like manner appear in the district courts in such cases.”); Hodge v. Commonwealth, 116 S.W.3d 463, 474 (Ky. 2003) (“[T]he Attorney General is the chief law officer and chief prosecutor of the Commonwealth ….”). But see Perdue v. Baker, 586 S.E.2d 606, 609, 614 (Ga. 2003) (explaining that while the attorney general is the chief legal officer of the state, neither she nor the governor has the exclusive power to decide the state’s interest in litigation).
24 See State v. Heath, 806 S.W.2d 535, 537 (Tenn. Ct. App. 1990) (describing attorney general’s powers including protecting the public interest, enforcing state laws in court, and participating “in litigation of a private character where it bears on the interest of the general public”).
25 See Mem’l Hosp. Ass’n, Inc. v. Knutson, 722 P.2d 1093, 1097 (Kan. 1986) (noting that where there is a public interest, the attorney general has a right to intervene).
26 See State v. Finch 280 P. 910, 911 (Kan. 1929) (“And so, while primarily the Governor is charged with the execution of the law, next to him the Attorney General is the chief law officer of the state.”).
27 See, e.g., CONN. GEN. STAT. § 3-125 (2003) (“The Attorney General shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction.”).
28 See, e.g., CAL. CONST. art. 5, § 13; N.Y. CONST. art. 5, § 1; ILL. COMP. STAT. 205/4 (2004); IOWA CODE § 13.2 (2004); MO. REV. STAT. §§ 27.030-27.060 (2001).
29 See Matheson, supra note [15], at 4 (stating that some state attorneys general retain common-law powers held over from England); see also State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 269 (5th Cir. 1976) (holding that Florida attorney general retains common-law powers).
30 See Shevin, 526 F.2d at 273-74 (“The fact that various statutes delegate specific portions of Florida’s litigation power to state’s attorneys in no way indicates an abrogation of the Attorney General’s common law powers as to other types of litigation; those powers still obtain in the absence of express legislative provision to the contrary.”).
31 7 AM. JUR. 2D Attorney General § 7 (2004); see also State ex rel. Shevin v. Kerwin, 279 So. 2d 836, 837-38 (Fla. 1973); Parker v. State, 31 N.E. 1114, 1115 (Ind. 1892); Van Riper v. Jenkin, 45 A.2d 844, 846 (N.J. 1946).
32 The states that seem to have abandoned attorney general common-law powers include Arizona, Connecticut, Indiana, Iowa, New Mexico, New York, Oregon, Texas, Washington, and Wisconsin. 7 AM. JUR. 2D Attorney General § 7 (2003). Within the last several years, the West Virginia Supreme Court ruled the attorney general did not have common-law powers, but a more recent opinion suggests the court may be changing its mind once again. See infra note [35] and accompanying text.
33 See, e.g., Blumenthal v. Barnes, 804 A.2d 152, 165 (Conn. 2002) (holding the attorney general does not have common law powers with respect to representing the public interest).
34 The expressio unius arguments are less persuasive when it is the state constitution that specifically outlines the attorney general’s duties. This is because states retain plenary power, and thus state constitutions are often interpreted as limitations upon the government rather than grants of power. Under this viewpoint, anything not specifically mentioned in the state constitution must be retained. See Robert F. Williams, The Brennan Lecture: Interpreting State Constitutions as Unique Legal Documents, 27 OKLA. CITY U. L. REV. 189, 207 (2002) (explaining that state constitutions are generally regarded as limitations, unlike the federal constitution, thus resulting in a different interpretational approach). Still, many state constitutions do not describe the attorney general’s specific duties in detail; they usually just set the method of election and term of office. See STATE ATTORNEYS GENERAL, supra note [13], at 40.
35 See State ex rel. McGraw v. Burton, 569 S.E.2d 99, 106-08 (W. Va. 2002) (explaining that attorney general has “inherent constitutional functions” which are not specifically enumerated but which the legislature cannot abrogate through legislation); see also supra note [32] and accompanying text.
36 See State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 271 (5th Cir. 1976); infra Part IV.A.1.
37 See, e.g., MISS. CODE ANN. § 7-5-1 (2004); People ex rel. Castle v. Daniels, 132 N.E.2d 507, 509 (Ill. 1956).
38 See MINN. STAT. § 8.06 (2004); State ex rel. McKittrick v. Mo. Pub. Serv. Comm’n, 175 S.W.2d 857, 862 (Mo. 1943).
39 7 AM. JUR. 2D Attorney General § 7 (2003).
40 Id. § 1; see also MINN. STAT. § 8.06; MISS. CODE ANN. § 7-5-1; TEX GOV’T CODE ANN. § 402.021 (Vernon 1998).
41 See People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1207 (Cal. 1981) (explaining attorney general gave legal advice to governor); see also, e.g., ALASKA STAT. § 44-23-020 (Michie 2003) (“The attorney general is the legal advisor of the governor and other state officers.”).
42 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 30, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147); see also State ex rel. Condon v. Hodges, 562 S.E.2d 623, 627-28 (S.C. 2003). The reason ethic rules are also considered judicial rules is because often state supreme courts officially adopt these rules as part of their procedure. See Thomas J. Tallerico & Jeffery G. Raphelson, Professional Liability of Attorneys, 36 WAYNE L. REV. 815, 816-17 (1990) (explaining that state bar of Michigan approved modified version of ABA’s Model Rules, and then submitted those rules to state supreme court, which invited feedback and made its own changes before promulgating the official Michigan Rules of Professional Conduct); Andrew D. Pugh, Comment, The Antidiscrimination Amendment to Rule 8.4 of the Minnesota Rules of Professional Conduct: An Unnecessary and Unprecedented Expansion in Professional Regulation, 19 WM. MITCHELL L. REV. 211, 211-12 (1993) (stating that in 1991, the Minnesota Supreme Court granted the state bar association’s petition to amend Rule 8.4 of the Minnesota Rules of Professional Conduct).
43 See, e.g., Deukmejian, 624 P.2d at 1207-08.
44 526 F.2d 266 (5th Cir. 1976).
45 Id. at 267.
46 Id.
47 Id. at 268.
48 Id. at 269.
49 Id. at 269-70.
50 Id. at 270 (citing State ex rel. Attorney Gen. v. Gleason, 12 Fla. 190 (Fla. 1868)).
51 Id. at 270-71.
52 Id. at 271 (citing State ex rel. Landis v. Kress, 155 So. 823, 827 (Fla. 1934)).
53 Id. (emphasis added).
54 The cases in question were Holland v. Watson, 14 So. 2d 200 (Fla. 1943), and Watson v. Caldwell, 27 So. 2d 524 (Fla. 1946).
55 Shevin v. Exxon Corp., 526 F.2d 266, 272.
56 Id. at 273.
57 366 N.E.2d 1262 (Mass. 1977).
58 Id. at 1263. Specifically, Feeney was upset with a “veterans’ preference formula” which gave priority to veterans in the hiring procedure for public employment positions. Because she was a woman and thus not eligible for the draft. Feeney argued she was placed at an unfair disadvantage because of her sex.
59 MASS. GEN. LAWS ch. 31, § 23 (1978).
60 Feeney, 366 N.E.2d at 1264.
61 Id. at 1267.
62 See infra Part V.F.
63 Feeney, 366 N.E.2d at 1266.
64 Id. (citing Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 338 (Mass. 1975)).
65 Id.
66 Id. at 1267.
67 326 N.E.2d 334, 335 (Mass. 1975).
68 Id. at 336.
69 MASS. GEN. LAWS ch. 12, § 3 (1974).
70 Sec’y of Admin. & Fin., 326 N.E.2d at 336.
71 Id.
72 Id. (“We emphasize, however, that this narrow exception applies only where the powers of the Attorney General’s office themselves are in question, and not in the ordinary case of disagreement between an agency and the Attorney General.”).
73 Id. at 340 (Kaplan, J., dissenting).
74 Id. at 341 (Kaplan, J., dissenting).
75 Id. (Kaplan, J., dissenting).
76 624 P.2d 1206 (Cal. 1981).
77 Id. at 1207 (citing CAL. GOV’T CODE §§ 3512-3524 (West 1977)).
78 Id.
79 Id.
80 Id.
81 Id.
82 Id. at 1207-09.
83 Id. at 1207.
84 Id. at 1209.
85 Id. In explaining why a private client-attorney relationship should be applied to the attorney general, the strange logic of the California Supreme Court appears to be that it is applied because it exists. In other words, it is not so much an explanation as an insistence by the court.
86 Id.
87 Id.
88 See id. (citing CAL. CONST. art. V, § 1).
89 See id. (citing CAL. CONST. art. V, § 13).
90 562 S.E.2d 623 (S.C. 2002).
91 Id. at 625.
92 Id. at 625-26.
93 Id.
94 Id.
95 Id.
96 Id. at 628.
97 See id. at 626 (“The Governor shall take care that the laws be faithfully executed. To this end, the Attorney General shall assist and represent the Governor ….”) (citing S.C. CONST. art IV, § 15).
98 See supra Part IV.B.
99 Condon, 562 S.E.2d at 626 (“[T]he Attorney General shall assist and represent the Governor ….”) (citing S.C. CONST. art. IV, § 15).
100 Id. at 627 (emphasis deleted).
101 Id.
102 Id. at 628.
103 586 S.E.2d 606, 607 (Ga. 2003).
104 Id. (explaining holding of federal district court in underlying case).
105 Id.
106 Id. at 607-08.
107 Id. at 608.
108 Id.
109 Id. (reciting governor’s position).
110 Id. (restating attorney general’s arguments).
111 According to the court,
The constitution states that the Attorney General ‘shall act as the legal advisor of the executive department, shall represent the state in the Supreme Court in all capital felonies and in all civil and criminal cases in any court when required by the Governor, and shall perform such other duties as shall be required by law.’
Id. at 609 (quoting GA. CONST. art. V, § 3, para. IV).
112 Id. (citing GA. CODE ANN. §§ 45-15-3(4), 45-15-35 (2003)).
113 Id. (“It is the duty of the Attorney General … [t]o represent the state in all civil actions tried in any court.”) (citing GA. CODE ANN. § 45-15-3(6)).
114 Id. (citing GA. CONST. art. V., § II, para. II).
115 Id. (“Construed together, these constitutional provisions and statutes do not vest either officer with the exclusive power to control legal proceedings involving the State of Georgia.”).
116 Id. The court then stated,
Both executive officers are empowered to make certain that state laws are faith-fully enforced; both may decide to initiate legal proceedings to protect the State’s interests; both may ensure that the State’s interests are defended in legal actions; and both may institute investigations of wrongdoing by state agencies and officials.
Id.
117 The court stated,
Id. at 610We also reject the dissent’s narrow characterization of the Attorney General’s role as merely that of legal counsel to the Governor. To imply that the Georgia Rules of Professional Conduct control the Attorney General’s relationship to the Governor ignores the important and independent role assigned to the Attorney General under our constitution.
118 Id.
119 Id. at 616.
120 79 P.3d 1221 (Colo. 2003).
121 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 30, Salazar (No. 03SA147).
122 Id.
123 Id. at 32.
124 Id. at 33.
125 Id. at 31.
126 79 P.3d at 1221.
127 Id. at 1229. Although there was no case directly on point, the court analogized the current case to People v. Tool, 86 P. 224 (Colo. 1905), which recognized the power of the attorney general to protect the integrity of the election process. Salazar, 79 P.3d at 1229.
128 Salazar, 79 P.3d at 1229 (quoting Tool, 86 P. at 236).
129 Id. at 1230 (“Hence, it is irrelevant that no statute authorizes the Attorney General to file his petition.”).
130 Id.
131 COLO. RULES OF PROF’L CONDUCT, COLO. R. CIV. P. app. to chs. 18-20 (2004).
132 Salazar, 79 P.3d at 1230 (“We find no ethical violation. The Secretary of State is named as a party in her official capacity because she administers the election laws.”).
133 Id. at 1231 (citing COLO. RULES OF PROF’L CONDUCT Scope).
134 Id.
135 Id.
136 Id. at 1243 (“Consequently, the General Assembly’s 2003 redistricting plan is not permitted by Article V, Section 44, of the Colorado Constitution because it is the second redistricting plan after the 2000 census. Hence, Senate Bill 03-352 is unconstitutional and void.”).
137 See Emily Wagster Pettus, Medicaid Bickering Echoes Past, COM. APPEAL (Memphis, Tenn.), Oct. 3, 2004, at DS1 [hereinafter Pettus, Bickering].
138 Emily Wagster Pettus, Hood Joins Fight to Delay Medicaid Cuts; Barbour Staff: AG Is Flip-Flopping Plan, SUN HERALD (Biloxi, Miss.), Sept. 30, 2004, at 1 [hereinafter Pettus, Hood Joins Fight].
139 Geoff Pender, Barbour Promotes Plans for Mississippi Fiscal Fitness; Governor Brings Message to Coast, SUN HERALD (Biloxi, Miss.), Oct. 2, 2004, at 4.
140 See Pettus, Bickering, supra note [137].
141 Pettus, Hood Joins Fight, supra note [138].
142 See Geoff Pender, Mississippi Medicaid Recipients Get Another Extension on Health Coverage, SUN HERALD (Biloxi, Miss.), Oct. 15, 2004; Pettus, Bickering, supra note [137]. This was a ruling in favor of the attorney general because the judge did not dismiss the action due to lack of standing, which implies that the court did not recognize a breach of the client-attorney relationship.
143 See supra Part III.
144 See Lawrence K. Hellman, When “Ethics Rules” Don’t Mean What They Say: The Implications of Strained ABA Ethics Opinions, 10 GEO. J. LEGAL ETHICS 317, 323 n.18 (1997) (“Although every state except California thus has in place a set of rules based on one of the two ABA “model” regimes [the Model Rules and its predecessor, the Model Code], most states have adopted the ABA models with alterations ….”); Jennifer Daehler, Note, Professional Versus Moral Responsibility in the Developing World, 9 GEO. J. LEGAL ETHICS 229, 231 (1995) (“In fact, the ethical rules governing the practice of law are regulated by each state. However, the Model Rules, or their very near equivalents have been enacted by most state bar associations.”). In this Note, I have chosen to use the Model Rules primarily because they represent the ABA’s current view of lawyers’ ethical obligations.
145 MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2002).
146 Id.
147 Id. R. 1.2 cmt. 1 (2002); see, e.g., Red Dog v. State, 625 A.2d 245, 247 (Del. 1993).
148 Akron Bar Ass’n v. Miller, 684 N.E.2d 288, 291 (Ohio 1997) (quoting ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 128-29 (1993)).
149 The ramifications of this will be discussed infra Part VI.A.
150 624 P.2d 1206 (Cal. 1981).
151 Id. at 1207-09.
152 Id. at 1207-08.
153 385 S.E.2d 646 (W. Va. 1989); see also supra note [35] and accompanying text.
154 See supra note [35] and accompanying text.
155 526 F.2d 266, 270 (5th Cir. 1976).
156 The debate over the meaninglessness of definitions and their inapplicability to the law is a favorite among legal philosophy professors. For one of the most famous discussions of this debate, see H.L.A. HART, THE CONCEPT OF LAW 121-32 (1961). For a more current discussion, see Jeremy Waldron, Does Law Promise Justice?, 17 GA. ST. U. L. REV. 759, 766-67 (2001).
157 See Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 336-37 (Mass. 1975) (“The Secretary contends that … it is up to him, as client, and not for the Attorney General, as attorney, to decide whether to prosecute an appeal. We cannot accept this contention.”) (citations omitted).
158 MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2002).
159 People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1207-08 (Cal. 1981).
160 State ex rel. Caryl v. MacQueen, 385 S.E.2d 646, 648 (W. Va. 1989). The confidential tax information in question was a tax compromise between the commissioner and a company that owed back taxes. See id. at 646-47.
161 588 N.E.2d 560, 563 (Ind. Ct. App. 1992).
162 Charles v. Abrams, 199 A.D.2d 652, 653 (N.Y. App. Div. 1993).
163 See cases cited supra Part IV. See generally Gilmore, supra note [10]; Aleshire, supra note [10]; Holmes, supra note [10].
164 See People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003) (explaining that attorney general’s client is “generally the government as a whole,” even though the attorney general may represent an individual officer in specific circumstances); Perdue v. Baker, 586 S.E.2d 606, 609-10 (Ga. 2003) (explaining that attorney general and governor have concurrent powers to defend state’s interests in legal actions); State ex rel. Condon v. Hodges, 562 S.E.2d 623, 627 (S.C. 2002) (holding attorney general is not prohibited from bringing suits against the governor); Feeney v. Commonwealth, 366 N.E.2d 1262, 1267 (Mass. 1977) (stating attorney general can prosecute court appeals over the objections of state officers); Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 336 (Mass. 1975) (holding attorney general can refuse to appeal case over objections of state officers).
165 For a list of some cases where the court found that the attorney general did not violate professional ethical rules, see the cases listed supra note [164].
166 MODEL RULES OF PROF’L CONDUCT R. 1.7(a) (2002).
167 Id. R. 1.7 cmt. 1.
168 7 AM. JUR. 2D Attorney General § 21 (2003).
169 642 N.E.2d 1180, 1181 (Ill. 1994).
170 Id. at 1183.
171 Id. at 1184.
172 MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 2 (2002).
173 Cases where the attorney general has to represent two agencies at the same time appear to be fairly rare. In reality, where two agencies disagree or have colliding statutory mandates, the attorney general might ask the governor to pressure the agencies to arrive at an amicable solution. In the case of overlapping statutory mandates, the attorney general could also share his concern with the legislature and ask them to resolve it. Another option is for the attorney general to issue a formal opinion, which is not binding but is very persuasive to the court in future litigation.
Should these methods fail to resolve the problem, the agencies might actually go to court against each other. Often the attorney general is allowed to represent both agencies. Once the attorney general decides his “side” on the matter, however, he assigns the matter to different departments where the assistant attorneys general are required not to interact with each other over the specific case. The attorney general also gives up supervisory control over those staff members who are on the “side” opposed to the position he has selected. See E-mail from James Tierney, Former Attorney General of Maine, to Justin Davids (Jan. 26, 2004) (on file with author).
174 MODEL RULES OF PROF’L CONDUCT R. 1.8(b).
175 People ex rel. Deukmejian v. Brown, 624 P.2d 1206 (Cal. 1981).
176 Id. at 1208; see also supra Part IV.B.
177 This is often a complaint critics level against allowing attorneys general to switch sides. For a response to this criticism, see infra Part VI.B.1.
178 MODEL RULES OF PROF’L CONDUCT R. 1.8 cmt. 5.
179 See Deukmejian, 624 P.2d at 1208.
180 MODEL RULES OF PROF’L CONDUCT R. 1.11(d). Rule 1.11 also deals with issues regarding conflicts of interests when a lawyer used to work for the government but is now in private practice. See id. R. 1.11(a)-(c). Rule 1.11(d)(2) covers conflicts of interest regarding a government lawyer who used to be in private practice, or who is seeking employment with a party with which the lawyer participates “personally and substantially.” See id. R. 1.11(d)(2). Because this Note involves the conflicts of interest of attorneys general with other governmental entities, only Rule 1.11(d)(1) is relevant for the purposes of discussion.
181 Id. R. 1.11 cmt. 1.
182 See Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 456-57 (2002) (“The Commission made Rule 1.11(d) the sole source for the obligations of current government lawyers, incorporating by reference the provisions of Rule 1.7 respecting concurrent conflicts ….”).
183 MODEL RULES OF PROF’L CONDUCT R. 1.11 cmt. 1.
184 Id. R. 1.11 cmt. 2.
185 MODEL RULES OF PROF’L CONDUCT Scope 18.
186 Id. (“[A] lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government ….”).
187 Id. (“[L]awyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.”).
188 Id.
189 MODEL RULES OF PROF’L CONDUCT pmbl. 16 (1983), reprinted in 2003 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY 186 (Thomas D. Morgan & Ronald D. Rotunda eds., 2003).
190 Of course, the Model Rules do not authorize any action in the way a statute or the state constitution might. Instead they are ethical guidelines adopted by state bar associations and promulgated by state supreme courts. See supra note [42]. The deletion of this language is significant, however, because it might indicate a change in the ABA’s view of its ethical standard.
191 One theory that might suggest this sentence was struck to give private lawyers at least a claim to acting in the public interest is that professional ethics are eroding and part of the reason is the “displacement of the vocation of public-regarding lawyering onto a specialized ‘public-interest’ bar, academics and government lawyers.” See Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 CONN. L. REV. 1185, 1209 (2003).
192 See supra Part V.E.
193 See, e.g., MO. REV. STAT. § 60.560 (2004) (stating that upon request attorney general shall advise Department of Natural Resources of any legal matter and represent in court); N.Y. AGRIC. & MKTS. LAW § 27 (McKinney 2004) (“The [eminent domain] proceeding shall be brought in the name of the [agriculture] commissioner as agent of the state and the attorney general shall represent the petitioner in the proceedings.”); People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1208 (Cal. 1981).
194 See, e.g., supra Parts IV.A, C.
195 See supra Part V.E.
196 See Tamara L. Tompkins, Note, A Theory of Ethical Conduct for the Legal Advisor to the State Department: Applied for a Fresh Look at Abraham Sofaer and the ABM Treaty Reinterpretation Debacle, 7 GEO. J. LEGAL ETHICS 523, 530 n.39 (1993) (“The Model Rules, like the Model Code, were written primarily to address the problems confronting private attorneys.”).
197 See Miller, supra note [10], at 1293 n.1 (“These ethic codes, however, do not provide clear answers to the problem [of government lawyers’ ethics] because they were written with private, not government, attornies [sic] in mind.”).
198 See Brian C. Buescher, Note, Out with the Code and in with the Rules: The Disastrous Nebraska “Bright Line” Rule for Conflict of Interest: A Direct Consequence of the Shortcomings in the Model Code, 12 GEO. J. LEGAL ETHICS 717, 736 n.174 (1999).
199 Id. (“Robert Kutak, the chair of the Kutak Commission which wrote the Model Rules, was a native Nebraskan and co-founder of Nebraska’s largest and only national law firm, Kutak Rock.”).
200 See Susan P. Koniak, When the Hurlyburly’s Done: The Bar’s Struggle with the SEC, 103 COLUM. L. REV. 1236, 1264 (2003) (stating that Geoffrey Hazard was the reporter for the Kutak Commission). Professor Hazard often testifies as an expert on ethics rules, and has even testified on the application of state rules of professional conduct to state attorneys general. See, e.g., State v. Peters, CR. No. 98-2467 (Haw. Cir. Ct. Feb. 26, 1999) (decision regarding motion to dismiss and alternative motion to disqualify the attorney general of Hawaii and her deputies) (on file with author). Professor Hazard’s argument in State v. Peters was that the Hawaii Attorney General violated the Hawaii Rules of Professional Conduct by bringing a case both civilly and criminally at the same time, thus violating the prohibition against conflicts of interest. See Declaration of Geoffrey C. Hazard, Jr. at 3, State v. Peters, CR. No. 98-2467 (Haw. Cir. Ct. Dec. 8, 1998). In short, Professor Hazard claimed the attorney general violated ethical rules because she did not have the authority to supercede the public prosecutor in criminal matters, and warned that there was the possibility that an attorney general with this power could use a criminal prosecution to facilitate a favorable civil recovery. Id. at 3-4. The state circuit court disagreed with Professor Hazard, however, and ruled that the attorney general could bring criminal cases when “an investigation would be in the public interest.” State v. Peters, CR. No. 98-2467, at 2-3 (Haw. Cir. Ct. Feb. 26, 1999) (decision regarding motion to dismiss and alternative motion to disqualify the attorney general of Hawaii and her deputies). More importantly, the court recognized that the state professional conduct rules “may not abrogate the government attorney’s authority in certain situations,” id. at 4, and that the mere appearance of conflict did not preclude the attorney general from bringing both cases. Id. (“If an appearance of conflict were a test, there could seldom be any parallel civil and criminal proceedings brought by the Attorney General and the statutes giving the Attorney General that dual authority would be frustrated.”). The court seemed persuaded that the attorney general should follow the statutes rather than the rules of professional conduct. Thus, even Professor Hazard, who has extensive experience in helping create the Model Rules, has trouble convincing courts that the Model Rules are completely applicable to the situations faced by state attorneys general.
201 Am. Bar Ass’n, Ethics 2000 Commission, at http:// www.abanet.org/cpr/ethics2k.html (last visited March 6, 2005). On a related note, on its official web page the Commission states, “The Commission expresses its gratitude to the law firm of Drinker, Biddle & Reath, whose generous contribution helped make possible the continued, invaluable support of the Commission’s Chief Reporter.” Not only is this statement evidence of the private bar’s involvement with the Model Rules, but it also indicates that at least one private law firm provided financial support to the ethics committee—a rather questionable move considering the committee’s mission is to review the ethics rules that lawyers in this private law firm are expected to follow.
202 See Am. Bar Ass’n, Ethics 2000 Commission on the Rules of Professional Conduct, Appendix A—Biographies (on file with author) [hereinafter Ethics 2000 Commission Appendix]; see also Love, supra note [182], at 441 n.1 (noting that “Commission comprised practitioners, judges, academics, corporate and public section lawyers, and a lay public member”). Also, according to the ABA website, Geoffrey Hazard was still involved with the Model Rules, only this time as a member of the Ethics 2000 Commission. See Ethics 2000 Commission Appendix, supra.
203 Petition for Writ of Injunction and Writ of Mandamus Pursuant to Colo. Const. Art. VI, § 3 at 11-12, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147).
204 Id. at 9-14 (citing People ex rel. Tooley v. Dist. Court, 549 P.2d 774, 777 (Colo. 1976)). It should be noted, though, that many of the cases the Secretary of State cites in support of her claims regard the attorney general’s criminal powers as opposed to his civil powers. Much of the support regarding civil powers is either dicta or inference. For example, the Colorado attorney general in Tooley argued his position, in a criminal prosecutorial manner, was analogous to the Attorney General of the United States, a purely appointed position within the president’s cabinet and not a U.S. constitutional officer. Thus, the Colorado Supreme Court was rebuffing this odd analogy to the U.S. “chief law officer.” This is not to say, though, that the Colorado Supreme Court did not view the attorney general’s statutory authority and the case law as extending the office’s powers to include protection of the public interest.
205 Id. (“Not only must an executive branch officer or the general assembly request that the attorney general initiate litigation but he or she is limited to representing the designated officials and agencies of the state …, not ‘the people.”’).
206 Id. at 12.
207 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 11, Salazar (No. 03SA147); supra notes [18]-[19] and accompanying text.
208 See, e.g., Feeney v. Commonwealth, 366 N.E.2d 1262, 1265 (Mass. 1977) (citation omitted).
209 Id.
210 In fact, the Vermont Attorney General’s office makes this exact analogy. See The Office of the Attorney General, at http:// www.atg.state.vt.us/display.php (last visited Oct. 31, 2004) (“First established by the Vermont Legislature in 1790, the Office of Attorney General has evolved from its one-person operation shortly after the turn of the 20th century to its current status as the State’s largest law firm.”). The Missouri Attorney General’s office does as well. See About the Missouri Attorney General’s Office, at http://www.moago.org/divisions/divisions.htm (last visited Apr. 1, 2005) (“The office is considered the state’s premier law firm.”).
211 See, e.g., Feeney, 366 N.E.2d at 1265.
212 Id. (quoting Sec’y of Admin. & Fin. v. Attorney Gen., 326 N.E.2d 334, 338-39 (Mass. 1975)).
213 See supra Part IV.A.3.
214 See Answer Brief of Attorney General Ken Salazar (Concerning the Powers of the Attorney General) at 15, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (No. 03SA147) (“The Attorney General does not presume to be the final arbiter of the statute’s constitutionality …. Rather, he brings his good-faith concerns to this Court to seek its final determination … because he recognizes that this Court rightfully undertakes that responsibility.”).
215 See supra notes [73]-[75] and accompanying text. Judge Kaplan’s dissent in Secretary of Administration & Finance assumes a lot of self-control by the governor and other state executives, which this Note criticizes as being somewhat unrealistic. Although this Note suggests there will be self-control by the attorney general, unlike Judge Kaplan, this Note has mentioned practical concerns that would make constraints on litigation less about self-control and more about economic realities.
216 In fact, these powers and actions are restrained in part because the legislature has control over the attorney general’s budget. See Lynch, supra note [15], at 2003.
217 See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”).
218 See Davis v. Bandemer, 478 U.S. 109, 132 (1986) ( “[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”). However, in the Colorado case, Attorney General Salazar did not assert an equal protection violation. Instead, he argued his case only on state constitutional grounds, claiming that the Colorado constitution only allowed redistricting immediately after each United States census. See Salazar, 79 P.3d at 1243 (“Under our holding today, the General Assembly may only create a redistricting plan after the federal census (and the resulting congressional apportionment to the states) and before the ensuing general election.”).
219 Obviously if the attorney general decides not to represent the officer-client, the officers still have a right to legal counsel and representation. In these situations, the officers should be allowed to hire outside counsel or use their in-office counsel. This approach seems consistent with Secretary of Administration & Finance, where the governor’s counsel represented the secretary to question the attorney general’s powers. See supra Part IV.A.3.
220 See text accompanying supra notes [162]-[163].
221 See supra notes [196]-[202] and accompanying text.
222 See supra notes [189]-[191] and accompanying text.
223 See Jeffrey Gettleman, Court Orders Alabama’s Chief Justice Removed from Bench, N.Y. TIMES, Nov. 13, 2003, at A1.
224 See id. In 2004, President Bush appointed Pryor to the Eleventh Circuit while Congress was in recess. See Michael A. Fletcher & Helen Dewar, Bush Will Renominate 20 Judges; Fights in Senate Likely over Blocked Choices, WASH. POST, Dec. 24, 2004, at A01. As of press time, Judge Pryor was still awaiting confirmation by the Senate. See STAFF OF SENATE COMM. ON THE JUDICIARY, 109TH CONG., JUDICIARY COMMITTEE REPORT ON NOMINEES (Mar. 28, 2005), available at http://judiciary.senate.gov/noms/108/committee_report.pdf (on file with author).
225 See Gettleman, supra note [223].
226 Id.
227 In re Roy S. Moore, No. 33, at 13 (Ala. Ct. Judiciary Nov. 13, 2003), available at http://www.judicial.state.al.us/documents/final.pdf.
228 Admittedly, there are a couple of differences between the Moore case and the Salazar case. First, there was no statute in question requiring Attorney General Pryor to represent Chief Justice Moore. Second, Moore was personally reprimanded for violating his ethical duties, while Davidson was sued not for any violation on her part but because she was the officer authorized to carry out the new law. But the court still reprimanded Moore not based on his individual, personal beliefs, but because he violated his ethical duties as Chief Justice of the Alabama Supreme Court. In other words, Chief Justice Moore was removed for violating the duties of his office.