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Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
Ethics around the Country
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Ethics around the Country
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Ethics around the Country
Ethics around the Country
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  • Numerous scenarios were presented that one is likely to encounter as a planner. I felt that the issues were relevant to modern planning practices.
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  • 15 Total Cases 10 Cases Resolved 4 Charges Dismissed and Not Appealed 2 Anonymous Charges Dismissed 1 Charge Settled 1 Respondent Resigned 1 Respondent's Membership Lapsed 1 Respondent Died 5 Cases Pending 1 Charge Pending Investigation 1 Complaint Pending Respondent's Cooperation 1 Complaint Pending Review 2 Charges Appealed Ethics Committee Actions No actions Requests for Formal Advice No requests Ethics Cases During 2005 7  Total Cases 2 Cases Resolved 1 Complaint Resolved by Settlement Agreement Reached by Ethics Committee and Respondent 1 Complaint Resolved by Court Approved Settlement Agreement 5 Cases Pending   3 Charges Under Review by Ethics Officer 1 Charge Pending Charging Party's Submission of Additional Information 1 Charge Pending Response from Respondent Ethics Committee Actions 5 Ethics Committee Actions in 2 Cases 1 Tabled Action in Settlement Agreement Pending Further Negotiations 1 Approved Settlement Agreement 1 Upheld the Ethics Officer's Partial Dismissal of Charges 1 Determined Member Violated the Code. 1 Made Disciplinary Action Recommendations to the Commission (under old Code rules) Requests for Formal Advice No requests
  • Canons, Ethical Standards (aspirational principles), and Rules (mandatory) Rule 1.101 states: In practicing architecture, Members shall demonstrate a consistent pattern of reasonable care and competence, and shall apply the technical knowledge and skill which is ordinarily applied by architects of good standing practicing in the same locality. Rule 3.201 states: A Member shall not render professional services if the Member’s professional judgment could be affected by responsibilities to another project or person, or by the Member’s own interests, unless all those who rely on the Member’s judgment consent after full disclosure. The Complainant and his wife retained Mr. Briggs’s firm to design a new home for their retirement. They informed Mr. Briggs that they wanted a home of approximately 3,500 square feet, a construction cost of about $500,000 or less, and a completion date within 10 months. When Mr. Briggs presented an initial schematic design of more than 7,000 square feet, the Complainant requested reductions. During the following month, Mr. Briggs presented additional schematic designs, each of which contained more than 6,300 square feet of enclosed living area. The initial construction cost estimates, which were provided by the project’s general contractor hired by the Complainant, exceeded $800,000. The Complainant repeated his request that cuts be made and understood that Mr. Briggs would redesign the house so that it could be built for the Complainant’s increased budget of $700,000. As design work progressed, Mr. Briggs and his firm communicated primarily with the Complainant’s wife and not the Complainant. Construction began based on preliminary plans provided by the firm. Final construction drawings were completed more than four months later, which was subsequent to the originally requested completion date for the project. Prior to the completion of the foundations and more than three months before the drawings were completed, Mr. Briggs had begun a romantic relationship with the Complainant’s wife. Mr. Briggs continued to work and bill on the project and never disclosed the affair to the Complainant. The Complainant learned of the affair about three months after construction had begun. He and his wife separated and subsequently divorced, he retained ownership of and financial responsibility for the project, and he terminated Mr. Briggs’s involvement in the project. The home ultimately cost more than $1 million to construct and contains more than 6,000 square feet of living area plus more than 2,000 square feet of porches and a detached garage of more than 1,100 square feet. The National Ethics Council ruled that Mr. Briggs violated Rule 1.101 of the Code of Ethics by designing a home far in excess of the written objectives of his clients and by failing to confirm that the Complainant, as well as his wife, had agreed to revise his objectives for scope, budget, and schedule. The Council concluded that this conduct constitutes a failure to demonstrate a consistent pattern of reasonable care and competence in the delivery of services and a failure to apply the technical knowledge and skill which is ordinarily applied by architects of good standing doing similar projects. The Council noted that, in light of Mr. Briggs’s personal relationship with the Complainant’s wife, he cannot justify his decisions on the project as having been made in response to directions that she alone gave. The Council also ruled that Mr. Briggs violated Rule 3.201 because, although his personal relationship with the Complainant’s wife certainly could have affected his professional judgment while rendering professional services, he did not disclose his conflict or resign from the project. The Council imposed the penalty of a two-year suspension of membership on Mr. Briggs.
  • National Soc'y of Prof. Engineers v. United States, 435 U.S. 679 (1978) http://supreme.justia.com/us/435/679/case.html#696 11(c). He shall not solicit or submit engineering proposals on the basis of competitive bidding. Competitive bidding for professional engineering services is defined as the formal or informal submission, or receipt, of verbal or written estimates of cost or proposals in terms of dollars, man days of work required, percentage of construction cost, or any other measure of compensation whereby the prospective client may compare engineering services on a price basis prior to the time that one engineer, or one engineering organization, has been selected for negotiations. The disclosure of recommended fee schedules prepared by various engineering societies is not considered to constitute competitive bidding. An Engineer requested to submit a fee proposal or bid prior to the selection of an engineer or firm subject to the negotiation of a satisfactory contract, shall attempt to have the procedure changed to conform to ethical practices, but if not successful he shall withdraw from consideration for the proposed work. These principles shall be applied by the Engineer in obtaining the services of other professionals. “ The Sherman Act does not require competitive bidding; it prohibits unreasonable restraints on competition. Petitioner's ban on competitive bidding prevents all customers from making price comparisons in the initial selection of an engineer, and imposes the Society's views of the costs and benefits of competition on the entire marketplace.” Id. at 694-5. “ We are faced with a contention that a total ban on competitive bidding is necessary because otherwise engineers will be tempted to submit deceptively low bids. Certainly, the problem of professional exception is a proper subject of an ethical canon. But, once again, the equation of competition with deception, like the similar equation with safety hazards, is simply too broad; we may assume that competition is not entirely conducive to ethical behavior, but that is not a reason, cognizable under the Sherman Act, for doing away with competition. ” Id. at 696.
  • It is a basic rule of evidence and one so commonly accepted that the American public watching “made for TV lawyering” knows it as truth - conversations between lawyers and clients are afforded the privilege of confidentiality. During the last five years, however, this notion has not only been challenged, but to some extent, it is has been turned upside down with respect to conversations between government lawyers and their clients. While many would like to point to this as a legacy of the Whitewater investigation and the Clinton White House, the fact remains that the issues have manifested themselves at the state and local levels as well, prompting decisions in the 7 th , 8 th and 9 th circuit federal courts of appeals. The privilege extended to attorney-client relationships in the government setting is confusing and not as clear-cut as the privilege in other lawyer-client settings. In fact, one reporter has commented that in the area of government attorney-client privilege, government lawyers “are in a legal no-man’s land.” [1] The pattern emerging is that for cases involving government lawyers and their government clients, a different set of rules for the applicability of the attorney-client privilege has emerged in the criminal activity arena. [2] These decisions are discussed below, as well as a general discussion of the reasons for and against recognizing a privilege for government lawyer-client conversations. While there are no federal district court or circuit court opinions covering this subject in New York, the most recent pronouncement from the Seventh Circuit just one month ago provides persuasive authority on how these situations are likely to be resolved in New York. [1] Walter Pincus, “No Clear Legal Answer: The Uncertain State of the Government Attorney-Client Privilege,” 4 Green Bag 2d 269 (2001). [2] In the most recent case on point, the Seventh Circuit stated, “There is surprisingly little case law on whether a government agency may also be a client for purposes of this privilege, but both parties here concede that, at least in the civil and regulatory context, the government is entitled to the same attorney-client privilege as any other client.” In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (7 th Cir. 2002) citing, Green v IRS , 556 F. Supp. 79, 85 (N.D. Ind. 1982) aff’d 734 F.2d 18 (7 th Cir. 1984); and Restatement (Third) of Law Governing Lawyers sec. 74 (2000).
  • Perhaps the most important reason in support of the lawyer-client privilege is the necessity of ensuring that there be full and frank communication between lawyers and their clients which promotes the broader public interests in the observance of law and administration of justice. [1] It follows, then, if there were no guarantee that these conversations would be protected as confidential, then lawyers would not have access to all of the detailed information needed to zealously represent clients and to uphold the law. [2] In the government context, it has been argued that if government officials know that conversations with their legal counsel are not privileged, public officials might avoid discussing sensitive matters with counsel, which could lead to legal violations and even corruption. [3] It has further been suggested that uninformed public officials would be afraid to obtain legal advice and could be unable to effectively carry out their policy objectives which would serve to hamper the implementation of government programs. [4] Ultimately, proponents of the privilege assert that absent a privilege, people might be unwilling to serve in public office. [5] [1] Adam Chud, “In Defense of the Government Attorney-Client Privilege,” 84 Cornell L. Rev. 1682 (1999), citing Upjohn v United States, 449 U. S. 383 (1981). [2] See, Marion J. Radson and Elizabeth A. Waratuke, “The Attorney-Client and Work Product Privileges of Government Entities,” 30 Stetson L. Rev. 799 (2001). See also, Swidler & Berlin v United States, 524 U.S. 399 (1998). [3] In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (2002). [4] Id. citing Duces Tecum , 112 F.3d at 932 (Kopf, J., dissenting). [5] In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (2002).
  • Generally, application of the attorney-client privilege may result in the exclusion of relevant evidence, and therefore it stands “in derogation of the search for truth.” [1] The most persuasive argument against extending the privilege for government lawyers-clients is that in the public practice of law, the ultimate client might be the general public, and not the public official. A discussion of “who is the client of the government lawyer” is also frought with legal uncertainty and it remains somewhat unsettled in opinions and law reviews across the country. Rather, in the context of discussing whether a privilege of confidentiality ought to attach in the government setting, the courts have looked not necessarily to clearly define the client of the government lawyer, but rather they have carved out a “higher duty” of government lawyers to act in the public interest. [1] It has also been argued that public officials are not the same as ordinary citizen-clients, because public officials are empowered to exercise the power of government. With this responsibility comes a responsibility to act in the public interest, and “It follows that [a] government lawyer [is] duty-bound to report internal criminal violations, not to shield them from public exposure.” [2] Lastly, following the spirit of the Freedom of Information laws at the federal and state levels, there is a strongly held belief that government information should be open and available to the public [3] and that such openness in government protects the people from a potentially corruptible government. Of course, government officials may always retain, at their own expense, a non-government lawyer and presumably any and all conversations would be entitled to the traditional attorney-client privilege. [1] Id. citing Lindsay , 158 F.3d at 1273; and Comment to ABA Model Rule 1.13 which notes that “government lawyers may have higher duty to rectify wrongful official acts despite general rule of confidentiality.” [2] Id. citing Nixon , 418 U.S. at 712-12; and Lindsay, 158 F.3d at 1273. [3] See, Lindsay , 158 F.3d at 1274 citing In re Sealed Case (Espy) , 121 F.3d at 749. [1] United States v Nixon , 418 U.S. 683, 710 (1974).
  • These cases remain troubling for government lawyers who are charged with representing their clients zealously, and who seek truth and to simply “do the right thing.” It seems as though government lawyers may not always be able to pick to their clients, but savvy government official should be careful to pick and choose what lawyer (public or private) they choose to confide in. This comes, of course, at a cost - to the public official should he or she choose to retain private outside counsel, and to the public because it could hamper the efficient and effective operation of government and presents a potential for underutilization of the government lawyer. Furthermore, if public officials are forced to retain private outside legal counsel, the billing for such services could meet or exceed the public official’s salary, making it unattractive to serve the public. This is remains an area of ethics law ripe for reform. Judge Kopf’s dissent in Lindsay offers a judicial alternative to the quagmire. He suggests a balancing test of sorts that would have the court weigh the government lawyer-client privilege with the public’s right to know based upon evidence submitted in camera to the Court. Others have argued that courts should make a factual inquiry into whether the government official was acting in public or private matter in deciding whether to attach the privilege. [1] Both a statutory solution and modifications to the Rules of Evidence and to the Code or Rules of Professional Conduct are warranted to provide a clear and consistent path. This is a debate that compels the dialogue and engaged debate of the public, not solely the private bar.   [1] See, Adam Chud, “In Defense of the Government Attorney-Client Privilege,” 84 Cornell L. Rev. 1682 at 1728 (1999).
  • Key recommendations of the Statewide Grand Jury include: - Expanding the definition of public employees to include private employees contracted by government entities that perform government services; - Creating sentencing enhancements for offenses committed by officials who use their public position to facilitate their crimes; - Creating an independent State Office of Inspector General, responsible for hiring and firing agency Inspectors General; - Expanding definition of criminal bid tampering to include bid-rigging schemes; and - Authorizing the Ethics Commission to initiate investigations with a supermajority vote of commission members. Grand Jury’s term expires in February 2011.
  • Section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” is properly confined to cover only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within the Court’s confinement of §1346’s proscription.
  • There are several possible examples. A planner must not receive favorable mortgage terms not available to the typical customer if a bank is expanding with several locations requiring approval from the planner’s agency, for example; a planner could not have a country club initiation fee waived should its board include developers, architects, and attorneys with business interests requiring approvals of the planner’s employer.
  • Responses to this scenario will vary based on the assumptions that are made. On the assumption that the planner will not be working in both positions, the discussion comes back to disclosure. It is important for the planner to talk to the current employer and let them know their intentions and ensure them that they will not work on their plan. If the planner chooses to continue with their public sector work, but privately consult on the project on the side, there may be ethical considerations to consider. If the planner chooses to accept the position, effective immediately, another set of concerns is raised. The Code of Ethics says that the planner’s primary focus is to serve the public interest. If a planner is resigning in the middle of a major project to take the other position, they need to ensure that it will be a transition that will not adversely affect the community.
  • As a planner, you are likely to get requests for transportation, security or development issues regarding the stadium or university. You do not want to be beholden or have the University think you should be beholden for something as simple as -- well, for anything, but certainly not for a ticket in a box seat. Ideally, the planner would want to ethically keep things at arm’s length or longer. In doing so, this is not so much the issue as who pays for the ticket or who reimburses for the ticket, but who is in an atmosphere or a context that may allow certain conversations to occur that would not be privy to those who may have other views on university issues.
  • The recommended course of action often varies based on situational variables, such as the size of an office or department. It is important to reflect and consider how these circumstances influence the outcome. If it is a larger department, there is usually more than one person who handles permits and applications. It would be best to explain to the friend that if they are going to keep the friendship, that they cannot expect to continue a business relationship as well. They would need to trust that they trained additional staff to effectively review plans. In a small, resource-strapped planning department, it may be necessary to make arrangements with a neighboring jurisdiction or hire an outside consultant to perform reviews.
  • Planners must often negotiate several roles simultaneously – in this case, their role as property owner, neighbor, and public servant. It often helps to clearly identify ethical obligations of each role, as well as personal interests of each. This practice of reflection helps separate competing interests that a planner may experience, and assist them in making ethical decisions. In a similar situation, a planner handled the situation as such: They went to the city manager and explained the violations, disclosing that they owned property. The planner discussed the facts of the situation and questioned whether the city manager wanted the planner to handle the case, or have it reassigned. After the city manager confirmed that we would like the planner to take enforcement action per the job description, the two confirmed this in writing. Enforcement actions would clearly convey no benefit to the planner. The planner then called the property owners in with their attorneys and talked about the violations. In that meeting, they disclosed that they were a property owner in that same planned unit development, and were paying fees to the same condo association. And so the situation was handled through clear and open communication and disclosure.
  • Responses to this scenario will vary based on the assumptions that are made. On the assumption that the planner will not be working in both positions, the discussion comes back to disclosure. It is important for the planner to talk to the current employer and let them know their intentions and ensure them that they will not work on their plan. If the planner chooses to continue with their public sector work, but privately consult on the project on the side, there may be ethical considerations to consider. If the planner chooses to accept the position, effective immediately, another set of concerns is raised. The Code of Ethics says that the planner’s primary focus is to serve the public interest. If a planner is resigning in the middle of a major project to take the other position, they need to ensure that it will be a transition that will not adversely affect the community.
  • You simply cannot do it. You certainly would not want to get into such a specific recommendation. There are some communities that maintain lists of consultants that they have worked with in the past. It may be acceptable to simply hand a copy of that list to the developer. It is also acceptable to discuss multiple consultants that are familiar with the community and its plan, regulations, and opportunities.
  • This is often the lifeblood of many consulting firms. There are many planning and engineering firms that perform these services for communities. However, as a planner, you must be careful to ensure that you do not write the master plan to include recommendations that are so narrowly defined that your firm is particularly well suited for the work. Such a project requires the planner to continually reflect on their motives behind the recommendation. Are they in the public interest, or simply to garner more work?
  • Transcript

    • 1. Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP
    • 2. Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP Providence October 21, 2011
    • 3. Roadmap for Today
      • AICP Code of Ethics and Professional Conduct
      • Ethical Codes of other professions
      • State statutory code examples
      • Scenarios
      • Questions (welcome throughout)
    • 4.
      • “ Always do right. This will gratify some people and astonish the rest.“
      • -Mark Twain
      • “ Ethics are what you do when no one is looking.”
      • -George Bernard Shaw
      • "Whenever you do a thing, act as if all the world were watching."
      • -Thomas Jefferson
      • “ The standards that govern the conduct of a person, especially a member of a profession.”
      • -www.wiktionary.com
    • 5. Ethics for Planners
      • Planners should just apply common sense
      • Ethical problems are seldom clear cut – rich in ambiguity
      • Planners must be aware of local ethics standards
      • “ Those who practice planning need to adhere to a special set of ethical requirements that must guide all who aspire to professionalism.”
      • Ethical Principles in Planning
    • 6. The AICP Code
      • Code of Ethics and Professional Conduct
      • 2005 Update; similar to previous code
      • Four sections
          • Aspirational Standards
          • Rules of Conduct
          • Procedures
          • Automatic suspension for serious crimes (2009)
    • 7. Our Overall Responsibility to the Public
      • “ Our primary obligation is to serve the public interest and we, therefore, owe our allegiance to a conscientiously attained concept of the public interest that is formulated through continuous and open debate.”
    • 8. Code A.1.f
      • “ We shall seek social justice by working to expand choice and opportunity for all persons, recognizing a special responsibility to plan for the needs of the disadvantaged and to promote racial and economic integration. We shall urge the alteration of policies, institutions, and decisions that oppose such needs.”
    • 9. Our Responsibility to Our Clients and Employers
      • “ We owe diligent, creative, and competent performance of the work we do in pursuit of our client or employer’s interest. Such performance, however, shall always be consistent with our faithful service to the public interest.”
    • 10. Code A.2.c
      • “ We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers.”
    • 11. Our Responsibility to Our Profession and Colleagues
      • “ We shall contribute to the development of, and respect for, our profession by improving knowledge and techniques, making work relevant to solutions of community problems, and increasing public understanding of planning activities.”
    • 12. Code A.3.c
      • “ We shall describe and comment on the work and views of other professionals in a fair and professional manner.”
    • 13. Code A.3.j
      • “ We shall contribute time and effort to groups lacking in adequate planning resources and to voluntary professional activities.”
    • 14. Rules of Conduct
      • “ We adhere to the following Rules of Conduct, and we understand that our Institute will enforce compliance with them. If we fail to adhere to these Rules, we could receive sanctions, the ultimate being the loss of our certification.”
    • 15. Code B.6
      • “ We shall not perform work on a project for a client or employer if, in addition to the agreed upon compensation from our client or employer, there is a possibility for direct personal or financial gain to us, our family members, or persons living in our household, unless our client or employer, after full written disclosure from us, consents in writing to the arrangement.”
    • 16. Code B.10
      • “ We shall neither deliberately, nor with reckless indifference, misrepresent the qualifications, views and findings of other professionals.”
    • 17. Code Procedures
      • In brief, our Code Procedures
      • 1. Describe the way that one may obtain either a formal or informal advisory ethics ruling, and
      • 2. Detail how a charge of misconduct can be filed, and how charges are investigated, prosecuted, and adjudicated.
    • 18. Code Procedures
      • Informal and Formal Advice
        • Only the Ethics Officer, who is the APA Executive Director
        • Binding
        • Formal Advice: Findings within 21 days
        • Forwarded to the Ethics Committee
    • 19. Ethics Cases During 2009
      • 11 Total Cases
      • 9 Cases Resolved
        • 4 Cases Dismissed
        • 1 Charge Withdrawn
        • 2 Respondents' Membership Lapsed
        • 2 Appealed Case Dismissals Upheld
      • 2 Cases Pending
        • 1 Charge Under Review
        • 1 Complaint Under Review
      • Ethics Committee Actions
        • Upheld Dismissals of 2 Appealed Cases
      • Requests for Formal Advice
        • No requests
    • 20. Flash cards
      • Michael Schuler and Amon Browning have created sets of AICP ethics flash cards, very clever, available at:
      • http://www.studystack.com/flashcard-280610 and
      • http://www.studystack.com/flashcard-14636
    • 21. ...and for all others...
      • Available at:
      • http://www.planning.org/ethics/
      • ethicalprinciples.htm
      • Ethical Principles in Planning
      • (As Adopted May 1992)
    • 22. Codes of Other Professions
      • American Institute of Architects
      • American Society of Landscape Architects
      • National Society of Professional Engineers
      • American Bar Association
    • 23. AIA Code of Ethics
      • Similar principles and structure compared with AICP Code, but a different perspective – private sector
      • Obligations: public, client, profession, colleagues, environment (“Canons”)
        • Balancing confidential client communications with other Code obligations
        • Fairness in competition with other architects (including Copyright)
      • AIA Code: http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aiap074121.pdf
      • … an example of a disciplinary action…
    • 24. ASLA Code of Professional Ethics
      • Same structure and private sector perspective as AIA Code
        • Greater emphasis on environment
        • Recognition of public sector employment, but only in reference to conflicts of interest
        • Honesty, dignity, integrity, fair dealing
      • ASLA Code: http://www.asla.org/nonmembers/CODE499.htm
    • 25. Code of Ethics for Engineers
      • Same sorts of considerations as AIA and ASLA Codes (do you see a pattern…?)
      • III.2.d. Engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.
      • Ban on competitive bidding struck down by US Supreme Court in 1978 (old Code 11(c) – Engineers “shall not solicit or submit engineering proposals on the basis of competitive bidding. …”)
        • Ban was defended by NSPE as a means of preventing engineers from making deceptively low bids; hiring of engineers should be done on the “traditional” basis of qualifications
        • Held to be a violation of the Sherman Antitrust Act
        • Act does not require competitive bidding; only prevents NSPE from prohibiting it
      • National Society of Professional Engineers Code: http://www.nspe.org/Ethics/CodeofEthics/index.html
    • 26. ABA Model Rules
      • Available at:
      • http://www.abanet.org/cpr/mrpc/mrpc_toc.html
      • Typically…lawyers aren’t planners and planners aren’t lawyers…but when they are…there can be conflicts…
    • 27. Beware: What You Say to Your Government Lawyer May Not Be Confidential Government Lawyer-Client Confidentiality Special Thanks to Patricia E. Salkin Raymond & Ella Smith Distinguished Professor of Law, Albany Law School
    • 28. Situation
      • Uncertainty as to existence of privilege in the government context – circuit courts in conflict
      • Politicizing attorney professionalism
      • ABA Task Force on Attorney-Client Privilege
    • 29. ABA Adopts 2005 Resolution
      • Resolved, That the ABA supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal problems fully and candidly with their counsel so as to
      • (1) promote compliance with law through effective counseling,
      • (2) ensure effective advocacy for the client,
      • (3) ensure access to justice, and
      • (4) promote proper and efficient functioning of government.
    • 30. Three Distinct Areas of Law/ Regulation
      • Common-law privilege of confidentiality from an evidentiary line of cases
      • Common-law (then codified) attorney work-product doctrine (not being discussion today)
      • Attorney codes of conduct and professionalism
    • 31. Questions
      • In what manner do each of these areas of the law protect attorney-client conversations and information gleaned from the attorney-client relationship?
      • Are the government attorney and his/her client(s) afforded the same protections and burdened with the same mandates as non-government attorneys and clients?
      • Should the application of these rules be the same whether the attorney works for the public or for the private sector?
    • 32. Issue #1 – Attorney Ethics A Lawyer’s Responsibility to Protect Client Confidences
    • 33. Model Rules Preamble
      • “ A lawyer should keep in confidence information relating to the representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.”
      • “ A lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.”
      • Lawyers must zealously protect and pursue client interests
    • 34. Model Rule 1.6
      • “ A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted…to prevent reasonable certain death or bodily harm…”
      • Rule 1.6(b)(6) acknowledges that a court may order disclosure
    • 35. Comment 13 to Model Rule 1.6
      • Acknowledges that a lawyer may be ordered by a court or governmental entity to disclose, but states that the lawyer should use all non-frivolous means to prevent the revelation of secret or confidential information.
    • 36. Issue #2 – The Privilege of Confidentiality
    • 37. Defining The Privilege
      • Wigmore on Evidence Defines the Privilege as Follows:
        • - where legal advice of any kind is sought
        • - from a professional legal adviser in his capacity as such,
        • - the communication relating to that purpose,
        • - made in confidence
    • 38. Defining The Privilege
      • - by the client,
      • - are at his instance permanently protected
      • - from disclosure by himself or by the legal adviser,
      • - except where the client waives the protection
    • 39. Reasons Favoring A Government Lawyer-Client Privilege
      • Ensuring full and frank communication between lawyer and client
      • Public officials would shy away from legal counsel which could lead to corruption
      • Lack of legal counsel could hamper the implementation of government programs
    • 40. Reasons Against a Government Lawyer-Client Privilege
      • Client is the public
      • Public entitled to truth
      • Higher duty in the public law context
      • Public officials are not the same as ordinary citizen-clients
      • Following FOIL, there should be no secrets in government
      • Government officials (lawyers) often have a duty to disclose wrongdoing – fraud, corruption, abuse
    • 41. Differences Between the Work Product Doctrine and the A-C-P
      • Work product doctrine seeks to protect the interests of the attorney and the client
        • Both attorney and client must agree to waive
      • Attorney-client privilege belongs to the client alone
      • Unlike the attorney-client privilege, the work-product privilege is typically not waived when information is shared with third parties
    • 42. Conclusion
      • Proceed with caution...don’t assume you are protected from disclosure…
    • 43. Public Ethics Laws
      • Florida
      • Oregon
      • Pennsylvania
      • Maine
      • Federal Concerns
    • 44. Florida
      • Statutory standards for public officers and employees at all levels of state government
        • Anti-nepotism (thorough but limited definition of “relative”), no gifts whatsoever, and of course no influence peddling
        • But it’s 59 pages long!
      • Florida Commission on Ethics – “guardian of the standards”: http://www.ethics.state.fl.us/
      • 2010 Statewide Grand Jury convened to investigate “…ongoing harm caused by crimes committed by local and state public officials while acting in their official capacity. Public officials have abused their powers gained by virtue of their position.”
        • Interim report: http://myfloridalegal.com/webfiles.nsf/WF/JFAO-8CLT9A/$file/19thSWGJInterimReport.pdf
    • 45. Oregon
      • http://landru.leg.state.or.us/ors/244.html
    • 46. Pennsylvania
      • Fully staffed State Ethics Commission
      • State Ethics Act applicable to public officials and employees, political candidates and nominees
      • Annual financial disclosures required
      • http://www.ethics.state.pa.us/portal/server.pt/community/ethics/8995/the_ethics_act/539789
    • 47. Maine
      • Applicable to Ethics Commission members and legislators
      • http://www.maine.gov/ethics/pdf/laws/
      • governmental_ethics_law.pdf
    • 48. Federal Concerns
      • What does Enron have to do with planning? Skilling v. U.S. – Honest Services wire/mail fraud (18 U.S.C. §§371, 1343, 1346)
        • §1346 Proscribes fraudulent deprivations of another’s “intangible right of honest services”
        • Unconstitutionally vague? No
        • Applies to undisclosed conflicts of interest (“self-dealing”)? No – only to bribery or kickbacks
      • Many cases still being prosecuted alleging bribery and kickbacks; Congress may fill the “conflict” gap by passing a law overriding Skilling
      • Skilling Decision: http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf
    • 49. Federal Concerns
      • Before you sign on the dotted line…
        • US v. Westchester County – initiated by Anti-Discrimination Center of Metro New York
        • Assurances given when signing forms necessary to receive Federal funding (such as CDBG)
          • “ Affirmatively furthering fair housing”
        • False Claims Act violations – potentially up to $150M damages
        • 2009 settlement: county must build or acquire 700 units of affordable housing ($50 million), mostly to be located in mostly white communities; Analysis of Impediments to Fair Housing
        • More vigorous enforcement in the works? HUD guidelines “forthcoming” (that was in 2009…)
        • Patty Salkin’s Law of the Land Blog: http://lawoftheland.wordpress.com/2009/08/16/historic-desegregationaffordable-housing-agreement-proposed-in-westchester-county-ny/
    • 50. Ethics Questions
    • 51. Do you want to friend me?
      • Facebook, Twitter, LinkedIn, MySpace, FriendFeed, Plaxo…and the list goes on…
      • What are the ethical issues with social networking?
      • Patricia Salkin, “Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations”
      • http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690835
    • 52.
    • 53. A Private Life
      • How does Code B.5 apply to private sector planners? (i.e., “We shall not, as public officials or employees; accept from anyone other than our public employer any compensation, commission, rebate, or other advantage that may be perceived as related to our public office or employment.”)
    • 54. Ethics Scenarios
    • 55. Too Good to Be Ethical?
      • For many years, a local retailer has given 15% discounts for all municipal employees to “give back” to the community. The retailer is now expanding and applies for a waiver of impact fees, which requires a staff recommendation. The planning director’s husband is an employee of the retailer. The director and all other staff members are recipients of the discount. What should the town do?
    • 56. Consultant Dilemma
      • You are a consultant. To get a project approved in a particular Council District, you are told to hire a certain firm to “manage” the project through the approval process. While the extra fee is substantial and you suspect kickbacks to a Council Member is involved, your client says it’s worth it. What do you do?
    • 57. The Devil You Know…
      • A local developer wants to rehab a derelict structure in an historic district. You know him and like him; he has a spotless reputation. But what he wants to do requires a “creative” zoning interpretation. Without that, the historic structure will be demolished. What should you do?
    • 58. How about a few real cases from the courts?
    • 59. Pillow talk
      • Is there an ethics problem where a city council enters into a development agreement with a developer where a council member is married to a lawyer who represents the developer on unrelated matters?
    • 60. No
      • The city council could enter into a development agreement with the developer despite the fact that one of the city council members was married to a lawyer whose firm represented the developer on unrelated matters.
      • No. 78 Ops. Cal. Atty. Gen. 230 (No. 95-110) (July 27, 1995)
    • 61. Did she say that?
      • Is it unethical for the board chairperson to write a letter to the Mayor supporting both the rezoning and the project, noting that she “would really like to see new housing available to [her] should [she] decide to sell [her] home and move into something maintenance free[.]”?
    • 62. Yes
      • That this constituted the appearance of bias and actual bias, requiring annulment of the planning board’s site plan approval. although the actions did not technically violate the General Municipal Law sections dealing with conflicts of interest for municipal officials, the actions nonetheless warranted annulment of the decision. See also, NASHA, LLC v. City of Los Angeles , 22 Cal. Rptr.3d 772 (Cal. Ct. App. 2004) (finding impermissible bias where a commissioner wrote a newsletter article advocating a position against the proposed project).
      • Schweichler v. Village of Caledonia , 45 A.D.3d 1281, 1283-1284 (N.Y.App.Div. 2007); See also, NASHA, LLC v. City of Los Angeles , 22 Cal. Rptr.3d 772 (Cal. Ct. App. 2004)
    • 63. Just hope this isn’t your board
      • Does the following exchange create any ethics problems: A member of a Commission engages in the following dialogue with an applicant’s engineer: “[s]ome Italians are wopsided.” The engineer replied “Lopsided?” and the commissioner said “Wopsided.” The engineer replied: “Wopsided, yes, O.K. got you.”
    • 64. Yes
      • The Court found the exchange indicated lack of impartiality.
      • Pirozzilo v. Berlin Inland Wetlands and Water Courses Com’n , 32 Conn. L. Rptr. 103 (Conn. Super. Ct. 2002).
    • 65. All in the family
      • Is it a conflict of interest for a board member to vote on an application involving a shopping center to be located in close proximity to where his/her parents live?
    • 66. No
      • A board member voted on the siting of a shopping center to be located near his elderly parents’ home. Neighbors opposed to the project alleged the board member had a conflict of interest because if the shopping center were to be built there, the board member would not have to do the grocery shopping for his parent. The court found no prohibited conflict of interest and noted that there was no evidence that the board member even did grocery shopping for his parents.
      • Lincoln Heights Ass’n v. Township of Cranford Planning Board , 714 A.2d 995 (N.J. Super. Ct. Law Div. 1998). But, see Care of Tenafly v. Tenafly Zoning Bd. of Adjustment , 704 A.2d 1032 (N.J. Super. A.D., 1998) (the court found a prohibited conflict of interest where a board member voted on a variance request that would impact his 83-year-old mother’s commercial interest in a strip mall based upon the “potential for psychological influences” because his mother needed the income to subsist).
    • 67. The honeymoon is over
      • Is it ethical for a council member to cast the deciding vote to reappoint her recently wed spouse to a new term on the planning board, where he served for 15 years prior to the marriage?
    • 68. No
      • After a 3 to 2 vote to reappoint the planning board member, the Court determined that in casting the deciding vote for her husband’s reappointment, the council member violated the State ethics law as this created at least a perception of a conflict of interest. Noting that a familial relationship does not always create a per se conflict, the Court said that “when a family member’s vote results in another family member obtaining a position in a government agency, as in the situation before us, a conflict is usually present.” Although the council member asserted that her spouse was well qualified on the merits, the Court said that although he may well have been an ideal candidate, “in the eyes of the public, the personal involvement…might reasonably be expected to impair her objectivity or independence of judgment.” Noting too that since the spouse cast the tie-breaking vote, the matter did not “resound with political consensus,” the Court concluded that “marriage is a direct personal involvement which might be reasonably expected to impair objectivity or independence of judgment within the meaning of” the statute.
      • Shapiro v Mertz, et. al., 368 N.J. Super. 46, 845 A.2d 186 (2004)
    • 69. Spousal privilege?
      • May Village Trustee vote on a special use permit and variance application to allow a historical society to locate their new office in a residential district where the spouse of the trustee had represented the society in the sale of the residential property in question, and received a commission as a result of her involvement?
    • 70. Yes
      • The Illinois Appellate Court held that a spouse’s financial interest in a venture does not necessarily disqualify a decision maker, and found no evidence here that the Board Member’s vote “was influenced or tainted by his wife receiving the commission.” Since the Historical Society did not apply for the permit and variance until after they had already purchased the property, the Court stated that in this instance, the commission that the spouse received was not in any way contingent upon the granting of the requested relief. Furthermore, the Court noted that the Trustee disclosed his wife’s involvement as a real estate broker for the Society at a public meeting, and that the Plaintiff had simply failed to show any evidence that the Council’s determination was impacted by a conflict of interest.
      • Lapp v Village of Winnetka, 359 Ill. App. 3d 152, 833 N.E.2d 983 (2005
    • 71. Dollars and Sense?
      • Is it a prohibited conflict of interest where a member of a local Board of Commissioners, which had voted to rezone a tract of land, was also a vice president of a local bank that had participated in financing the acquisition of the land by the county redevelopment authority?
    • 72. No
      • The Georgia Court held that absent more evidence that the rezoning directly and immediately affected his pecuniary interest, there was merely a remote and speculative allegation that failed to make a case of a prohibited conflict.
      • White v Board of Commissioners on McDuffie County, 252 Ga. App. 120, 555 S.E.2d 45 (2001), cert. denied (March 25, 2002).
    • 73. More hypotheticals…
    • 74. Game Tickets
      • You are a planner for a jurisdiction home to a popular college football team. The
      • university offers several members of the planning staff hard to get tickets to a sold
      • out game. Recognizing the conflict, your boss and colleagues decide to pay for
      • their tickets outright, thus absolving the question of whether or not the tickets were
      • a gift. Is there still an ethical conflict?
    • 75. Private-Public Flip-Flop
      • Two planners work together at a private developer for several years before both
      • joining the planning department in a large city. After two years at the department,
      • one of the planners returns to private sector development. How does this change
      • the personal and professional relationship of the two planners? Does the scenario
      • change if the planners are working in a city with a small, resource-strapped
      • planning department?
    • 76. Fencing with the neighbors
      • You are a planner with responsibility for code enforcement. You own a home in a planned unit development (PUD) and notice that several of your neighbors have erected fences that extend their backyard into the shared greenway – essentially privatizing public land. How would you handle this situation? Do conflicts arise between your roles as property owner, neighbor, and public servant?
    • 77. An offer you can’t refuse?
      • You are a public sector planner working with a consulting firm in your community on a redevelopment plan. After several weeks, based on the quality of your work, the head of the firm offers you a position within the firm. Are there ethical considerations that would prevent you from accepting this position?
    • 78. Consulting on consultants
      • A developer asks you, as a public sector planner, to help him select the team of
      • lawyers and architects that you would recommend, since you are familiar with who
      • is good in your community. How do you respond? If you decide that giving advice on a team is not ethical, are there other ways you can assist?
    • 79. RFP redux
      • You are working for a consulting firm that completes a master plan for a new community airport. After the master plan is completed, the community releases an RFP for engineering services based on recommendations from the plan. Do you foresee any conflicts?
    • 80. Resources for Information on Ethics
      • American Planning Association (APA) Ethical Principles of Planning www.planning.org/ethics/ethicalprinciples.htm
      • American Institute of Certified Planners (AICP) Code of Ethics & Professional Conduct www.planning.org/ethics/
      • Massachusetts Commission on Ethics www.mass.gov/ethics
      • City of Santa Clara CA comprehensive site on ethics www.santanclaraca.gov
      • Institute for Local Self Government – Developing a Local Agency Ethics Code www.ca-ilg.org/trust
      • Vermont Land Use Education & Training Collaborative – Rules of Procedure & Ethics Manual www.vpic.info/pubs/rules_proc.pdf

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