Public Agency Attorney Ethics, continued
Another twist on this situation can happen when decision-makers pressure attorneys to modify their advice. Courts have recognized this phenomenon in the context of public service ethics legal advice and found that the advice of counsel is generally not a defense in prosecutions. J
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What if one fears that providing such advice in writing — so there is no question that it was given — will in itself put one’s job on the line? This is an indication that those in a position to act on that advice want to retain the option, if caught, to claim ignorance. It’s a short next step (and one that has O
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Headquartered in Los Altos, the District is a regional greenbelt system in the San Francisco Bay area comprised of over 60,000 protected acres of land in 26 open space preserves in San Mateo, Santa Clara, and Santa Cruz counties. This independent special district enjoys the benefits of a dynamic 7-member independently-elected Board, a politically stable environment, and an outstanding organization of 118 highly-competent and dedicated staff members. Appointed by the General Manager, the Assistant General Manager ($138,000-$172,000) and Public Affairs Manager ($108,000-$135,000) will serve critical roles at the District.
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These examples are no-win situations. When faced with such a dilemma, however, it may well be longer-term career insurance to give the advice and put one’s job on the line if necessary. ■
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Assistant General Manager Public Affairs Manager Midpeninsula Regional Open Space District
been taken many times) to blame the attorney for not giving the advice.
Other Things Agency Officials Need to Know As indicated in the article, the holder of the attorney-client privilege is the agency. The State Bar Rules of Professional Conduct allow the client to waive that privilege as long as such consent is “informed.” Thus, a majority of the governing body can waive the privilege and allow an attorney to alert enforcement authorities about unlawful conduct. Such waivers can be made on a case-by-case basis. Alternatively, staff at the Institute for Local Government is pondering whether the waiver can occur for violations of ethics laws, for example as part of an agency’s adoption of its ethics policies. Also, the majority on a governing body can change over time. If an inquiry is made into why the agency or individual officials pursued an unlawful course of action, the subsequent majority may elect to waive the privilege and disclose what advice the attorney did and did not give.
Looking for Footnotes? A fully footnoted version of this article is available online at www.westerncity.com.
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