Monday, March 23, 2009

Ethics Schmethics

At a March 19, 2009 meeting of the Ethics Committee of the City-County Council where a new ethics code for City-County Councilors was discussed, Republican councilors on the committee, including Chairwoman Ginny Caine and Robert Lutz, incredibly are seeking a loophole for attorneys who serve on the council from disclosing clients they represent who are doing business with the city or county. Caine, Lutz and City Council counsel Bob Elrod take the untenable view that such disclosure would violate the attorney-client privilege.

Although Caine supposedly has a law degree, she isn't a practicing attorney. I don't know what Lutz' law practice involves, but at least one council member, Ryan Vaughn, works for one of the City's largest law firms, Barnes & Thornburg. It is no secret that Barnes & Thornburg represents many clients who do business with the City. The firm also represents the City and various agencies of the county. When attorneys and law firms represent entities doing business with the City and Marion County, there cannot be any claimed attorney-client privilege with respect to the fact that the attorney or his law firm has been retained by that client to represent the client before a city or county agency.

It seems to me that the Council's Republicans are exaggerating the attorney-client privilege in this context to avoid meaningful disclosure of the extent of some attorney-councilors real and potential conflicts of interest in serving on the City-County Council. The purpose of this exercise by the Ethics Committee is to determine what councilors are required to disclose on their statements of economic interest. If it is the intent of the Republican majority to shield these real and potential conflicts from a councilor's disclosure statement, then we should just dump their proposal in the garbage because that's where it belongs.

When the Republican-controlled council adopted a weakened ethics ordinance last year, it decided a separate ethics ordinance should govern the disclosure requirements of councilors. The Ethics Committee has been dragging its feet on adopting a disclosure requirement for councilors for the past year. Because of its belated action, the Ethics Committee plans to delay the requirement that councilors file economic interest statements in May, along with other city-county employees and officials, for at least 60 days while they figure out how weak of an ethics ordinance they are going to pass. Watching this committee in action is very trying on a person of conscience. These people just don't get it.


Paul K. Ogden said...

Gary, Lutz, Caine and Elrod are flat out wrong. They apparently do not understand what is covered by the attorney-client privilege.

That you represent a particular client is not covered by the attorney-client privilege. Communications between you and that client are covered by attorney-client privilege. But the attorney-client privilege does not extend to prevent you from disclosing WHO you represent.

It should be pointed out that the attorney-client privilege is a privilege of the client and not the attorney.

The Caine/Lutz/Elrod theory would allow a client wanting to do business with the city to hire counselors who are attorneys and then the counselor would have to conceal the attorney's conflict of interest due to this alleged attorney-client privilege. Does that make sense? Of course not.

It's a moot point though. The attorney-client privilege simply does not apply to prevent you from revealing WHO you represent.

Once again, I'm underwhelmed by the quality of the legal advice Bob Elrod has given to the council. I'm still amazed that he apparently did not more closely read the coroner legislation, which would have raised a major red flag regarding whether the statute was intended to apply retroactively to someone who is in office.

Patriot Paul said...

It isn't surprising the Ethics Committee has an ethics problem. The Council has been dysfunctional for years. Sad time when the foxes control the keys to the chicken coop.

varangianguard said...

The Councils' ethics rules can be whatever the Council thinks they can get by with.

If they aren't called out publicly, then they can (and will) do whatever they darn well please.
You know, the behavior is serial entitlement disorder.

Gary R. Welsh said...

To your point, Paul, when Barack Obama served in the Illinois Senate, he worked for a law firm in an "of counsel" capacity that represented clients doing business with the State of Illinois. On his ethics disclosure statement, he listed every one of the firm's clients which did business with the state. There was only one client which really needed to be disclosed because that was the only one Obama himself represented. In the case of that client, Obama served as the firm's "general counsel", even though he didn't provide the overall legal services a general counsel typically provides a business. Instead, Obama used his senate office to secure over a half-million dollars in grant money for the firm. Obama received payments for his work in the amount of $115,000. Neither his work as "general counsel" or the $115,000 payment were disclosed on his economic statement. A sharp newspaper reporter pieced together the facts years after the fact from tax return information. It just goes to show you how specific these disclosure statements must be made in order to give them any teeth. Obama gave the appearance of full disclosure by providing a long list of clients of the firm. In reality, he was covering up a big conflict of interest in the work he was performing directly for a private business using his Senate office to make money.

Jon said...

If I'm a prospective bidder for a contract involving construction for the state or local government I must sign a non-collusion affirmation,IC 5-22-16-6, but as a lawyer per the city council reasoning I don't need to disclose clients who may be doing business with the state or local government. Interesting logic, so the 'logic' is thus, if I'm a lawyer and on the city council everything is privileged because I say so.