ETHICS MATTER! Why You Can’t Rely on Your Attorney to Keep You Out of Ethics Trouble
Ultimately, you are the only one responsible for your conduct.
By Martha Perego, ICMA-CM | November 1, 2022 | PM MAGAZINE
It’s not unusual when a public official accused of misconduct defends his or her actions by saying that they sought and obtained a green light from their (or their organization’s) attorney. While that defense might be helpful in justifying the official’s actions and decisions, in many cases it will be inadequate to convince others that the actions were appropriate and ethical.
Often times a public official who is accused of ethical misconduct will respond “I didn’t break any laws.” This response is often viewed skeptically in that it is not a denial of an ethical misstep, but only a statement of belief that the alleged misconduct did not rise to the level illegality. This is hardly the standard we will be held to as public officials.
Focusing exclusively on “what is legal” and relying heavily on your attorney’s legal opinion can cause serious problems for public officials wishing to be viewed in a positive ethical light.
Sources of Problems
Legal does not always mean ethical.
The ethical bar for those in the public arena is much higher than “what is legal.” There are many types of conduct that don’t actually violate the law that is deemed unacceptable conduct from an ethical perspective. In addition to laws, you can be subject to other criteria for conduct, including regulations, codes of ethics/conduct, policies and public and community perception. Attorneys are trained to discern what is legal. While they may also have a broader perspective, you must assume that they will be focusing on evaluating the “legality” of a proposed action.
Your attorney may not fully appreciate your ethical obligations.
Each profession has its own ethical obligations and expectations. While your attorney, hopefully, fully understands their ethical obligations as an attorney, they may not understand all of your expectations/obligations as a manager. They may or may not have a clear understanding of the various expectations you are subject to as a local government professional manager (including your obligations under the ICMA Code of Ethics).
Your attorney may be inclined to tell you what you want to hear.
It is not unusual for a city/county attorney to value having a positive and mutually supportive relationship with the chief administrator of the organization they advise. While this is certainly a good thing, this can also influence the type of advice offered. An attorney may be motivated to find a rationale to support what the manager would like to do. This could cause the attorney to “stretch” to provide legal advice supportive of the manager’s proposed actions. In particular, if they don’t determine a specific legal barrier to the conduct, they could underestimate/understate the other potential pitfalls associated with the proposed action.
You can be part of the problem if you succumb to “selective listening.”
It is a natural tendency to “hear what you want to hear.” Your attorney may offer you a variety of thoughts on the ethical question you raise. It can be tempting to focus on the observations or opinions that best match what you want to hear.
How to Address These Challenges
Give your attorney “permission” to tell you something you may not want to hear.
While hopefully most attorneys don’t need such “permission” to give you their best advice, make it clear that you always want their frank opinion regardless of whether it is favorable to your proposed action. Make it clear to them that you need to rely on their unvarnished opinion and that telling you “what you want to hear” will not be helpful to either of you. Having a history of “shooting the messenger” when given advice that you find disappointing is not useful when attempting to get the best possible advice from your attorney and your staff. Make it clear to your attorney that you want their best legal advice as well as their assessment of other potential impacts that could come from your action.
Make your attorney aware of all your ethical obligations.
It can often be helpful for the attorney to understand your professional obligations relating to ethical conduct that goes beyond the law. For example, while the attorney may not provide you advice on how to conform to the requirements of the ICMA Code of Ethics, familiarity with the Code can help create context as they provide you advice on your proposed actions.
Making it clear to your attorney that you view your obligations to extend beyond the “floor” of the action being legal can make it clear that simply passing that test is not sufficient. Informing them of the requirements of the ICMA Code of Ethics and other criteria can help them understand the broader context of your obligations.
Listen carefully and ask probing questions.
It is critical to avoid “selective listening.” Listen to and think about all that your attorney has to offer, even those opinions or observations you would rather not hear. Ask probing questions and provide feedback to the attorney to make sure that there is no misunderstanding regarding his or her opinion. Give as much weight to the points raised that are not supportive of a proposed action as you do to those supportive of what you would like to do. You shouldn’t take much comfort from a superficial conversation with your attorney on an ethical question. Make sure you fully understand the attorney’s opinion. And if his or her rationale is not clear or compelling, dig deeper. In addition, confirm that your attorney feels comfortable with their position, even if they needed to explain it publicly, including to the press and/or at a public meeting.
Get objective perspectives.
It is often very useful to obtain the advice of other professionals who have no direct involvement in the issue. Additionally, it would not be unusual for one or more of your professional peers to have dealt with the same (or similar) question previously. Getting an opinion from someone who does not have a direct interest in the outcome of the matter can provide a valuable perspective. This type of “nothing to lose or gain” advice can help supplement your assessment and the opinion of your attorney.
Conclusion
The advice of your or your agency’s attorney can be a critical component in your ethical decision making. However, it is not always the final answer. There may be times when we really would like to be given “permission” (or at least justification) for an action we are considering. We can seek legal justification in order to feel better regarding a decision we are contemplating. While it is obviously important to obtain legal advice regarding issues of law, it is very risky to take undue assurance in the fact you have been given a legal green light.
Ultimately, you are responsible for your conduct. As a public official, stating that someone else said it was OK (even if that someone else is an attorney) is not good enough. So while it may be a good start to have your attorney advise that what you have done or plan to do is legal, that is not sufficient. You must determine what it is appropriate, ethical, and reasonable from other’s perspectives in order to feel confident about your actions.
While I had the good fortune in my public management career to work with excellent city attorneys who not only were well informed regarding laws, regulations, rules, and policies effecting our work, but had a similar sense of what was the “right thing to do” in regard to ethical questions. We shared a similar set of values on this topic. They were my partners in helping keep our organizational ethical missteps to a minimum. However, no two individuals will always view complex and “gray area” challenges in the same fashion.
Regardless of how good a working relationship you may have with your legal counsel, never forget that there is only one person ultimately responsible for your ethical decision making—you.