The people of Sparks have heard that term a lot lately from the mouth of their city attorney, Chet Adams. And he wasn’t referring to them. He was talking about the members of the Sparks City Council.
In taking that stance, Adams is right in the mainstream of the specialized field of public lawyers (attorneys who serve as counsel to public agencies or officials). The National Association of Attorneys General once sent out a questionnaire to state attorneys general. Of the 16 who answered a question about whom they considered their client, nine said they viewed their role primarily as representing the agencies of state government, four as representing the public and four as a combination of the two.
Combining the two, however, can be tricky—there are times when the views of the public and the views of public officials are absolutely at odds. After the people of Arizona approved medical use of marijuana in a landslide in the 1996 election, the 1997 Arizona Legislature overrode that decision and imposed new legislation that kept the voter decision from being implemented. In court, should the attorney general defend the voters’ decision or the legislature’s decision?
Washoe County wanted to build a new courthouse annex on the Pioneer Inn property, but the public voted it down. The county wanted it anyway. It retooled and relocated the facility and built it without a public vote. If a dispute had arisen, should the district attorney have represented the public or the commissioners? And if the answer is “the commissioners,” who represents the public when public officials subvert a vote of the electorate?
Or there’s the Reno railroad trench, which the people of Reno voted down on May 27, 1980. More recently, voters elected anti-trench candidates to office. So when the city and county decided to build it without another public vote, who is the client of the Reno city attorney and the district attorney who advises the county commission—the public or the public body?
Former Nevada attorney general Brian McKay says the client can’t be decided by the public counsel because the issue is more or less determined by statute.
“Elected attorneys general, especially, are politicians, so it’s a great catchphrase to say that you’re the attorney for the people, right?” he says. “But the fact of the matter is, the way that most statutory schemes are set up is that we represent the state agencies. And there are times, certainly, when conflicts could occur.”
But some lawyers say that such an approach to the job is becoming outmoded, that the size and pace of society have made it passé. In a representative republican system, the city council or county commission is the public, but not everyone believes that is still the case. William Baxley, a former Alabama attorney general, has written that the job of a public counsel is evolving into something less recognizable to traditionalists:
“Government, both federal and state, has increased in size and, while becoming involved in more aspects of our private lives, has become more removed from our immediate control. As a consequence, the state’s attorney has had to assume an ambivalent posture in some instances. Quite simply, the actions of governmental entities are now often at odds with the public interest … because a government entity derives its legitimacy from the public, or the people, when the public’s interest is in conflict with that of the governmental entity, the state’s attorney is obligated to represent the public.”
What does the public lawyer do if the public speaks for itself instead of through its representatives? That is becoming an important issue because of the growing use of ballot petitions by interest groups to override public actions or policies set by governing panels.
McKay says, “I think in almost every instance that the deputy attorney general or the deputy district attorney needs to represent his direct client. And that’s going to be the county commission, in the instance of the Reno courthouse.”
Attorney Robert Sader, who served as a state legislator for many years and chaired the Nevada Assembly’s judiciary committee, says he does not consider the client of a public counsel to be either a person or body of persons. Rather, he thinks the client is the government entity.
“Even an elected official like a city attorney, the answer is the client is the public body you’re elected to represent—the City of Reno, the City of Sparks, the County of Washoe, the State of Nevada, whoever it is,” Sader says. “Even if you’re an elected official, your client is that entity.”
He adds, “Now, under the ethics rules of the state and national bar … we would identify the client and then the representative of the client, whether it’s the governor or the mayor or the city council or whatever, that represents the client in the circumstance that you’re talking about and that would be the person you have to have loyalty to as a client. … The reason the answer’s that way is that, I mean, it couldn’t be anywhere else. Obviously there might be differences and huge controversies between the public and a public body. That’s inherent in the political process. And to have an ethics duty as a lawyer, the first thing you have to do is identify who your client is.
“Now, distinguish that from your duties and responsibilities as an elected public official. In that capacity, you’re elected by the public. You’re elected by the voters, and you represent the public, don’t you? So you have a different set of obligations, some of which are moral and others are very definitely legal. But they’re distinguishable. And they need to be distinguished from the duties to your client.”
The difficulties of representing public agencies or officials who have to navigate polarizing controversies can sometimes mean that those agencies or officials—or the public—try to push lawyers into policy areas that are really not within their purview. Many citizens sometimes zero in on the public counsel as a player in those controversies. However, if the public counsel is doing her job right, she will resist being drawn into those disputes. Advising a city council on one-way streets, for instance, means telling the council members whether such streets are legal, not whether it’s a good idea to have them. One state attorney general said that the effectiveness of an attorney general “is going to depend on large measure, I believe, on the extent to which he refrains from engaging in policy-making, which has not by fairly specific legislative or constitutional mandate been entrusted to him.”
In Robert Bolt’s A Man for All Seasons, Thomas More told the king’s lawyer Thomas Cromwell, “You may tell the King what he may do, and what he ought to do; but you must never tell the King what he can do.”
When Maxwell Anderson used the same scene in Anne of the Thousand Days, he included More’s caution to Cromwell but added a line to make plainer the warning against the power of the law in unrestrained hands—”If he [the king] knew his true strength, it would be hard for any man to rule him.”
Having independent public counsel is no guarantee that the lawyer won’t tell officials what they want to hear, but it helps. Both Sader and McKay believe a lack of independence can make lawyers enablers. “I think that’s absolutely the case,” McKay said. Some public counsel are elected, which gives them independence from their clients. Others are employed by the attorney general, district attorney, or city attorney, and not by the agency they advise, which also gives them independence. It’s when the agency itself employs the lawyer that problems most often happen.
Until 1989, the Washoe County Airport Authority used Maureen Griswold as its lawyer. She was an employee of the district attorney’s office, not of the Airport Authority, and was paid $57,262 annually.
Then the Airport Authority switched to private lawyers and by the mid-1990s was paying nine law firms more than 10 times that amount each year. More to the point, it was soon enmeshed in some badly handled public controversies. Some members of the Authority board felt that the private attorney formed an alliance with the airport director and staff and with one faction on the board, and it affected the character of the advice given to the board.
“Oh, the counsel was, I think, totally in with staff,” says former board member Tina Manoukian. “I think there was a real conflict with staff, and I feel that counsel told us what staff wanted us to know. … I think things were a lot better when we had Maureen.”
Sader says of independence for public counsel, “I don’t think there’s any good answer to this, but I’ll tell you one consequence that is one aspect of this. Do you remember a couple of years ago the city of Reno was very unhappy with the representation they were getting from Patricia Lynch? And there was a lot of discussion around the council table about hiring special counsel, basically to represent the city. … And so that then leads you to the question of, ‘Well, if we’re going to have these kinds of conflicts, why do we have a publicly elected city attorney?’ Or is it a good thing to have that, if the public agency feels as a consequence of the public lawyer’s view of public duty, as a consequence the agency can’t get representation—or, in their view, they can’t get adequate representation.”
Sader says of his time in the legislature, “When we first did the regional plan legislation mandating the regional plan, we provided that Washoe County would provide the legal services. And the Washoe County D.A. did provide the legal services. But after a few years … the cities in particular were very uncomfortable with the representation of the D.A. because there were all these squabbles going on between the three jurisdictions. And sometimes you would have two district attorneys’ representatives involved—one representing the agency and one representing the county, out of the same office. … And so, you have to look at that and say, is this a good thing?”
Public lawyers worry about the danger to their field of the viewpoint that by changing lawyers an agency can get different advice, but it does happen. In 1975 when the Equal Rights Amendment was at issue and the lieutenant governor supported ERA, Nevada legislative counsel Perry Burnett issued an opinion that the lieutenant governor has an unrestricted tie-breaking vote. Later that year he was fired by the anti-ERA legislative leaders, who requested a new opinon. The new counsel, Frank Daykin, wrote an opinion saying that the lieutenant governor can vote only on minor matters.
Sometimes the nature of a relationship between agencies and counsel can depend on the counsel. McKay had a relatively bipartisan and cooperative approach to his job, which set a tone for his office, and his deputies were usually able to work out conflicts before they ever broke into public view.
“I never came across one that I considered unsolvable,” McKay says. “The big issue always used to be, really, the conflict was gaming board versus gaming commission, not public versus state agency. … There are circumstances in which the attorney general declines to represent his state agency … because he believes there’s a conflict, or in some cases—if the public lawyer takes the wider view of who his client is—he believes that the position of the state agency is against the public interests. Which means his opinion of the public interest.”
In the end, it’s likely to come down to the lawyer’s concept of her job. If she thinks it’s her job merely to enable, the advice will reflect it, and the client—whoever that is—will endure the consequences.