Reporting government misconduct includes defending rule of law, new ABA ethics opinion says
Lawyers representing governmental entities may be required to disclose misconduct by officials when the conduct is substantially harmful, according to a new ethics opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility. The conduct includes when officials violate the law and bring reputational damage upon the government.
Formal Opinion 524, released Wednesday, focuses on Model Rule 1.13 of the ABA Model Rules of Professional Conduct. The rule addresses when a lawyer for an organization thinks that conduct by an official may be imputed to the organization and also causes substantial injury. Model Rule 1.13(b) provides for the lawyer disclosing misconduct to the highest authority in the organization, while Model Rule 1.13(c) deals with permissive disclosures outside of the organization.
“This opinion concludes that for purposes of these provisions, a violation of a legal obligation or a violation of law by an officer, employee or other constituent of a government organization can be ‘imputed’ to the organization if the officer, employee or other constituent is using or misusing authority possessed by virtue of a position with the government,” according to the opinion.
“It further concludes that the injuries against which the rule protects are not limited to financial and reputational injuries. In the case of a government organization client, virtually any violation of a legal obligation or law by a public official or other constituent that reasonably might be imputed to the government organization client may cause ‘injury’ to the organization, given the government’s obligation to support, defend and promote the rule of law,” according to the opinion.
Like other attorney-representing organizations, government lawyers “may be required or permitted to make certain disclosures under Rules 1.13(b) and (c) in certain prescribed circumstances when they know that public officials or employees in their organizations are engaged or intend to engage in action that violates a legal obligation to the organization,” according to the opinion.
Additionally, the opinion finds that Rule 1.13(b) may require a government lawyer to disclose a public official’s “violation of a legal obligation or law that reasonably might be imputed to the organization” only if the violation “is likely to result in substantial injury.”
Injury to an organization can include much more than just financial injury. Reputational harm may be sufficient.
“Government organizations have a significant interest in the fair administration of justice and in protecting and preserving the rule of law,” the opinion saids. “The government must set an example, itself complying with the legal obligations, even seemingly minor ones, that apply to it.”
Additionally, the opinion stressed that “the credibility of government depends on its own compliance with the law.”
“And the rule of law presupposes that no one—and no organization—is above the law,” the opinion said.
In a footnote, the opinion cited former U.S. Supreme Court Justice Louis Brandeis’ famous admonition in his dissenting opinion for the 1928 wiretapping case in Olmstead v. United States.
“If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy,” Brandeis wrote.
When there is substantial injury, government lawyers have “considerable discretion under Rule 1.13(b)” on how to proceed, according to the opinion. It noted that the lawyer can present information about the misconduct to the appropriate high authorities in the governmental agency.
However, disclosing the misconduct outside the government agency under Rule 1.13(c) is a different story, as such disclosures “should not be undertaken lightly,” according to the opinion.
A July 22 press release from the ABA is here.
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