CHAPTER 4 ETHICAL ISSUES FOR THE LEGISLATIVE LAWYER

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1 CHAPTER 4 ETHICAL ISSUES FOR THE LEGISLATIVE LAWYER Ross Fischer Denton Navarro Rocha Bernal Hyde & Zech, P.C W. William Cannon, Suite 609 Austin, TX (512) Chairman. Commissioner. Prosecutor. Judge. Director. Professor. Ross Fischer has burned through all these titles and more during his career. Along the way, he has developed an expertise in the area of professional ethics, public law, and campaign finance. A notable has-been, Ross has been the following: Chairman of the Texas Ethics Commission, which regulates ethics laws in the political process, including campaign finance, candidates for office, officeholders, and lobbyists. Inaugural Chairman of the Legislative and Campaign Section of the State Bar of Texas. An adjunct professor at the University of Texas School of Law. Appointed by the Texas Speaker of the House to serve on the Select Interim Committee to Study Ethics laws. Elected to the Board of Directors of the nation s largest electric distribution cooperative. Assistant Chief Disciplinary Counsel for the State Bar of Texas, where he prosecuted ethics violations against attorneys. The elected Kendall County Attorney, where he served as both the civil advisor and the misdemeanor prosecutor for one of the fastest growing counties in Texas. A municipal judge. Ross is an honors graduate of St. Edward s University and a less than honorable graduate of the University of Texas School of Law, both in Austin. He is an attorney in the Austin office of the firm Denton Navarro Rocha Bernal Hyde and Zech. Additionally, he has performed a wedding, been interviewed on Voice of Russia radio, and occasionally sits in with his daughters ukulele band.

2 Ross Fischer Chair State Bar of Texas Section on Legislative & Campaign Law

3 Goals Describe what makes legislative law unique. Identify ethical issues of legislative lawyers. Review applicable rules of conduct. Consider ethical rules in the context of legislative legal practice.

4 Isn t that Special? What makes legislative law different? Who s the client? Committee? Chairman? Agency? Elected? Association? Adversarial? Opposing Party is a fluid concept Subject matter of representation General topic? Specific bill? Amendment? Rule? What s it mean to win? Pass a bill? Kill a bill? Improve a bill?

5 What s the Difference? Legislative law usually involves altering law and public policy, as opposed to adjudicating legal rights. Ethical rules have been developed with the traditional, adversarial process in mind, with lawyers working to adjudicate the rights of clients in relation to an opposing party.

6 What s the Matter? What is a matter? Is it the entire representation? Is it a specific bill? An amendment? A single provision within a bill? A bill and its corresponding appropriation? Is a matter a discrete, isolatable transaction?

7 What s the Matter? Rule 1.10(f) the term matter does not include regulation-making or rule-making proceedings, but includes: An adjudicatory proceeding An application A request for a ruling or other determination A contract An investigation or charge accusation

8 Conflicts of Interest Rule A lawyer shall not represent a person if representation of that person: Involves a substantially related matter in which that person s interests are materially & directly adverse to those of another client; or Reasonably appear to be adversely limited by the lawyer s responsibilities to another client, a third party, or the lawyer s own interests.

9 Conflicts of Interest Unless The lawyer reasonably believes that the representation of each client will not be materially affected; AND Each potentially affected client consents after full disclosure of the existence, nature, implications & possible adverse consequences of the common representation.

10 Conflicts: Current Client Lawyer is representing Client A on Medicaid issue and is representing Client B on a food stamp issue. It becomes clear that, due to funding limitations, only one bill will pass. Does the lawyer have a conflict? What if both bills will likely pass, but only one will be funded by the appropriations bill?

11 Possible Improvements Instead of matter can we define piece of legislation? Piece of legislation means a single bill, amendment, or package of interrelated bills if they are being considered together. Should piece of legislation be limited to a single legislative session? Should it include rule-making authorized by the bill?

12 Possible Improvements A legislative lawyer: Is one who drafts, amends, or analyzes a proposed piece of legislation. Shall not advance two or more adverse positions on any piece of legislation. Shall not represent a client if it will be directly adverse to another client, unless. The representation will not harm either client; and Each client consents after consultation.

13 Conflicts: Former Clients Rule Without prior consent, a lawyer who has represented a client in a matter shall not represent another in a matter adverse to the client matter: If the representation is likely to involve a violation of confidentiality; OR If it is the same or a substantially related matter.

14 Conflicts: Former Clients Gray areas: What is a matter? What is a substantially related matter? Scenario: If you help pass a piece of legislation in the 2015 session, can you work for a different client to repeal that law in 2017? If you help pass a piece of legislation in the session, can you represent an adverse client during the interim rule-making process?

15 Possible Improvements A lawyer who has formerly represented a client on a piece of legislation shall not thereafter represent another person on the same or a substantially related piece of legislation I which that person s interest are materially adverse to the interests of the former client, unless the former client consents after consultation.

16 Tribunal Tribulations Tribunal does not include legislative bodies or their committees, members or staffs, nor does it include other governmental bodies when acting in a legislative or rule-making capacity. ( Terminology, TDRPC)

17 Advocate in Non-Adjudicatory Proceedings Rule A lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that appearance is in a representative capacity and shall conform to: Rule 3.04 (Fairness in Adjudicatory Proceedings) Rule 3.05 (Maintaining Impartiality of Tribunal) Rule 4.01 (Truthfulness in Statement to Others)

18 Possible Improvements A legislative lawyer shall not: (1) seek to influence a legislator or any government agency employee by means prohibited by law; (2) make a false statement of material fact or law to a legislator or any government agency official; or (3) fail to disclose material fact to a legislator, or any government agency official when disclosure is necessary to avoid a fraudulent act.

19 Confidentiality A lawyer shall not knowingly reveal confidential information. Privileged information is that protected by the lawyerclient privilege of Rule of Evidence 503. Client representative = (i) a person authorized to obtain legal services on behalf of a client; or (ii) any person who makes or received confidential communication in order to effectuate legal representation

20 Confidentiality If you are counsel to a legislative chamber, who are your client representatives? If you are counsel to a committee, who are your client representatives? If you work for the committee Chairman, are discussions with the Vice-Chair confidential? What if a committee member seeks your counsel on an issue adverse to the committee chair?

21 Confidentiality In the context of an organizational client Remember that your client is the entity as distinct from its constituents; Take direction from duly authorized constituents; Clarify your role by Explaining that you represent the entity; Explaining the limits of confidentiality; and Encouraging independent counsel for constituents with interests adverse to the organization.

22 Summary Legislative law is unique. Types of clients Types of matters Not exactly adversarial Untraditional notions of victory

23 Attribution I stole most of these ideas from: Legislative Lawyering and the Model Rules 14 Geo. J. Legal Ethics 823 (2001) Michelle Grant

24 The End Questions? Ross Fischer

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