7 ETHICAL SURVIVAL SKILLS FOR THE GOVERNMENT LAWYER SUING AND DEFENDING GOVERNMENTAL ENTITIES JULY 2007

SUING AND DEFENDING GOVERNMENTAL ENTITIES

JULY 2007

CALL/ EMAIL AND GET THE SLIDES CHRIS GRIESEL 512-228-4831 [email_address] READ THE PAPER, GET SORTS OF EXTRAS AND VIEW THE SLIDESHOW AGAIN http://texasgovernmentlawyer.wordpress.com/

CHRIS GRIESEL

512-228-4831

[email_address]

READ THE PAPER, GET SORTS OF EXTRAS AND VIEW THE SLIDESHOW AGAIN

http://texasgovernmentlawyer.wordpress.com/

A WORD ABOUT DUH! Duh is a slang exclamation that is used to express disdain for someone missing the obviousness of something.

Duh is a slang exclamation that is used to express disdain for someone missing the obviousness of something.

Really! No, Duh! No S****, Sherlock! MOTFO

Really!

No, Duh!

No S****, Sherlock!

MOTFO

DUH! IS ALL AROUND

BUT KNOWING DUH! IS NOT ENOUGH!

THE DUH! OF ETHICS

OF COURSE, I'M ETHICAL I HAVE A BELIEF SYSTEM I TOOK PR IN LAW SCHOOL I TOOK AND PASSED THE MPRE I READ THE RULES I TOOK THE “BASICS” COURSE NO ONE HAS EVER SUED ME

I HAVE A BELIEF SYSTEM

I TOOK PR IN LAW SCHOOL

I TOOK AND PASSED THE MPRE

I READ THE RULES

I TOOK THE “BASICS” COURSE

NO ONE HAS EVER SUED ME

EVERY DAY IN THE EL PASO TIMES

CLIPS FROM LEGISLATIVE REFERENCE LIBRARY ETHICS 1999-2006

ETHICS 1999-2006

FORMER STATE REP.SERNA PLEADS GUILTY TO KICKBACKS 10 years

10 years

LEGISLATOR ASKS LOBBIES TO PAY FOR ETHICS CLASS

POWER GRID MANAGER IS FACING AUDIT OVER INQUIRY Oversight Agency Angry

Oversight Agency Angry

TSU HEAD RETURNS $138,000 TO SCHOOL Resignation, $500K Suspect Spending,Indictment

Resignation, $500K Suspect Spending,Indictment

ERCOT CHIEF STEPS DOWN; TWO MORE SENTENCED FOR ERCOT SCHEMES 7,8, and 12 Years

7,8, and 12 Years

STATE AGENCY OFFICIAL CONVICTED OF BRIBERY Conviction

Conviction

LOTTERY DIRECTOR NOW ADMITS SHE LIED #1

#1

DIRECTOR ADMITS INFLATING JACKPOTS #2

#2

FORMER EMPLOYEE INDICTED IN SCAM #3

#3

7 ETHICAL SURVIVAL SECRETS YOU LINE IN THE SAND LET THE CLIENT KNOW WHO THEY ARE (AND AREN'T) DO YOUR JOB ASK WDWDW DON'T DRINK THE KOOLAID YOUR ORGANIZATION UNDERSTAND THE ETHICAL ENVIROMENT UNDERSTAND YOUR ROLE

YOU

LINE IN THE SAND

LET THE CLIENT KNOW WHO THEY ARE (AND AREN'T)

DO YOUR JOB

ASK WDWDW

DON'T DRINK THE KOOLAID

YOUR ORGANIZATION

UNDERSTAND THE ETHICAL ENVIROMENT

UNDERSTAND YOUR ROLE

RULE 1: DEFINE THE LINE YOU WON'T CROSS BEFORE YOU HAVE TO CROSS IT LIKE TRAVIS AT THE ALAMO, YOU HAVE TO DRAW A LINE IN THE SAND, EXCEPT THIS IS THE LINE OF ACTIONS YOU WILL NOT TAKE (AND YOU HAVE TO DO IT BEFORE YOU ARE ASKED TO TAKE THEM)

LIKE TRAVIS AT THE ALAMO, YOU HAVE TO DRAW A LINE IN THE SAND, EXCEPT THIS IS THE LINE OF ACTIONS YOU WILL NOT TAKE (AND YOU HAVE TO DO IT BEFORE YOU ARE ASKED TO TAKE THEM)

DECIDE WHAT LINES YOU WON'T CROSS “ I’LL QUIT OR YOU’LL HAVE TO FIRE ME BEFORE I’LL TAKE THE FOLLOWING ACTIONS”.

“ I’LL QUIT OR YOU’LL HAVE TO FIRE ME BEFORE I’LL TAKE THE FOLLOWING ACTIONS”.

WHY BEFORE? If you know what you won’t do, you will probably spend some time in your practice avoiding the very things that you won’t do. It easier to not start down a slippery slope than to try and arrest yourself on the way down.

If you know what you won’t do, you will probably spend some time in your practice avoiding the very things that you won’t do.

It easier to not start down a slippery slope than to try and arrest yourself on the way down.

REASONS WHY NOT TO DO THIS Hey Pollyanna, the world’s not black and white. I can’t deal in hypos. I’ll just have to take it as it comes. Don’t worry, I’ll always act ethically .

Hey Pollyanna, the world’s not black and white.

I can’t deal in hypos.

I’ll just have to take it as it comes.

Don’t worry, I’ll always act ethically .

MY RESPONSE BULL****

BULL****

THERE ARE THINGS THAT YOU WON'T DO (AND YOU KNOW IT) WOULD YOU HELP YOUR CLIENT PLACE SOMEONE IN A WOODCHIPPER?

WOULD YOU HELP YOUR CLIENT PLACE SOMEONE IN A WOODCHIPPER?

IF NO TO THE WOODCHIPPER, WHAT ELSE? Don’t lie Don’t cheat Don’t steal

Don’t lie

Don’t cheat

Don’t steal

WHERE'S YOUR LINE? 1. I’m willing to go to jail 2. I’m willing for my client to go to jail 3. I’m willing to be indicted 4. I’m willing for my client to be indicted 5. I’m willing to be disbarred 6. I’m willing for my client to be sanctioned 7. I’m willing to have an ethics complaint filed 8. I’m willing for lawyers to alter their normal actions when they deal with me 9. I’m willing to have people publicly speak badly about me or my client (economic effect on practice) 10. I’m willing to have people gossip about me or my client (no economic effect on practice) 11. I’m willing to have some people, especially opposing counsel’s clients, not to appreciate my clearly ethical actions.

1. I’m willing to go to jail

2. I’m willing for my client to go to jail

3. I’m willing to be indicted

4. I’m willing for my client to be indicted

5. I’m willing to be disbarred

6. I’m willing for my client to be sanctioned

7. I’m willing to have an ethics complaint filed

8. I’m willing for lawyers to alter their normal actions when they deal with me

9. I’m willing to have people publicly speak badly about me or my client (economic effect on practice)

10. I’m willing to have people gossip about me or my client (no economic effect on practice)

11. I’m willing to have some people, especially opposing counsel’s clients, not to appreciate my clearly ethical actions.

NEED HELP IN DECIDING WHERE TO DRAW THE LINE PLAY “WHAT IF?” Your boss accepts a bribe in front of you. You thought you saw your boss accept a bribe in front of you. Your client has not turned over all the responsive discovery documents but says that they have. The government body you work for routinely circumvents the Open Meeting Act and invites you to participate in an illegal meeting.

Your boss accepts a bribe in front of you.

You thought you saw your boss accept a bribe in front of you.

Your client has not turned over all the responsive discovery documents but says that they have.

The government body you work for routinely circumvents the Open Meeting Act and invites you to participate in an illegal meeting.

RULE 2 UNDERSTAND THE ETHICAL ENVIROMENT YOUR CLIENT OPERATES UNDER

UNDERSTAND THE ETHICAL ENVIROMENT YOUR CLIENT OPERATES UNDER

FLOOR: COMPLIANCE WITH ETHICS LAW CEILING: ETHICS GOOD ENOUGH FOR EVERYONE ALL THE TIME ZONE OF UNCERTAINTY NO ONE CARES TERMINATION

THE SOURCES OF ETHICAL PROBLEMS IN YOUR UNIVERSE PEOPLE GETTING IN YOUR BUSINESS CORRUPTION, FAILURE OF IMAGINATION, "THE MIDDLE 1/3"

THINK ABOUT THE THINGS THAT HAVE CAUSED TROUBLE FOR YOU IN THE LAST YEAR OUTSIDERS BAD INSIDERS GOOD INSIDERS Keep a list of troublemakers and then figure out how they would cause trouble and then avoid the trouble”

OUTSIDERS

BAD INSIDERS

GOOD INSIDERS

Keep a list of troublemakers and then figure out how they would cause trouble and then avoid the trouble”

DOES YOUR ORGANIZATION UNDERSTAND THE RISK OF ETHICAL LAPSES? YOU ARE CORDIALLY INVITED TO GET INTO MY BUSINESS BECAUSE OF THE ETHICAL LAPSE I HAVE ALLOWED TO OCCUR ON MY WATCH PLEASE FEEL FREE TO SADDLE ME WITH ADDITIONAL RESTRICTIONS AND OVERSIGHT, TERMINATE OR REASSIGN PERSONNEL, USE THESE LAPSES AS EXCUSES TO UNFUND PROGRAMS OR STRIP RESOURCES, AND TO CONTINUALLY BRING UP THE LAPSE FOR ANY NUMBER OF YEARS

YOU ARE CORDIALLY INVITED TO GET INTO MY BUSINESS BECAUSE OF THE ETHICAL LAPSE I HAVE ALLOWED TO OCCUR ON MY WATCH

PLEASE FEEL FREE TO SADDLE ME WITH ADDITIONAL RESTRICTIONS AND OVERSIGHT, TERMINATE OR REASSIGN PERSONNEL, USE THESE LAPSES AS EXCUSES TO UNFUND PROGRAMS OR STRIP RESOURCES, AND TO CONTINUALLY BRING UP THE LAPSE FOR ANY NUMBER OF YEARS

RULE 3 UNDERSTAND YOUR ROLE IN THE ORGANIZATION YOUR ROLE IS DETERMINED BY THE INTERSECTION OF THE RISK TO THE CROWN JEWELS THE ORGANIZATION IS WILLING IS TO TAKE AND THE CONTROL THEY ARE WILLING TO GIVE TO YOU

UNDERSTAND YOUR ROLE IN THE ORGANIZATION

YOUR ROLE IS DETERMINED BY THE INTERSECTION OF THE RISK TO THE CROWN JEWELS THE ORGANIZATION IS WILLING IS TO TAKE AND THE CONTROL THEY ARE WILLING TO GIVE TO YOU

WHICH TYPE OF LAWYER ARE YOU? A. Claims Reporters- who have no control and merely pass on the results of the risks taken B. Claims Managers-who have some control to proactively manage any existing risk C. Claims Avoiders- who have more control to proactively attempt to limit risk D. Claims Preventers-who stomp out risk before it ever arises.

A. Claims Reporters- who have no control and merely pass on the results of the risks taken

B. Claims Managers-who have some control to proactively manage any existing risk

C. Claims Avoiders- who have more control to proactively attempt to limit risk

D. Claims Preventers-who stomp out risk before it ever arises.

REGARDLESS OF WHAT THE ORGANZIATION SAYS YOUR ROLE IS, REMEMBER YOU MUST PROTECT THE CROWN JEWELS CONTROL OF THE INSTITUTION MONEY RE-ELECTION

CONTROL OF THE INSTITUTION

MONEY

RE-ELECTION

DIVISION 1 DILEMIA 2005-2006 14 major Division 1 infraction cases

2005-2006

14 major Division 1 infraction cases

THINK ABOUT IT: WHEN DOES YOUR CLIENT LISTEN TO YOU? ALWAYS NEVER ONLY WHEN THEY ARE IN TROUBLE FOR THE 1ST 3 MONTHS AFTER THEY GET IN TROUBLE ONLY IF I'M TAKING ABOUT IMPORTANT THINGS EXCEPT WHEN I'M TALKING ABOUT IMPORTANT THINGS

ALWAYS

NEVER

ONLY WHEN THEY ARE IN TROUBLE

FOR THE 1ST 3 MONTHS AFTER THEY GET IN TROUBLE

ONLY IF I'M TAKING ABOUT IMPORTANT THINGS

EXCEPT WHEN I'M TALKING ABOUT IMPORTANT THINGS

BOEING $1 B IN LOST LAUNCHES $5-10B IN DAMAGES 15 VP'S 900 SUBSTANTIATED ETHICS CLAIMS

$1 B IN LOST LAUNCHES

$5-10B IN DAMAGES

15 VP'S

900 SUBSTANTIATED ETHICS CLAIMS

JAN 2006 SPEECH CHOICES CHANGE TO ETHICALLY COMPLIANT SYSTEM, IF WE KEEP DOING WHAT WE ARE DOING, WE CAN DO EVERYTHING BUT MAKE AIRPLANES

CHANGE TO ETHICALLY COMPLIANT SYSTEM,

IF WE KEEP DOING WHAT WE ARE DOING, WE CAN DO EVERYTHING BUT MAKE AIRPLANES

RULE 4 LET THE CLIENT KNOW WHO THEY ARE (AND WHO THEY AREN'T)

LET THE CLIENT KNOW WHO THEY ARE (AND WHO THEY AREN'T)

GET IT IN WRITING ARE MY DUTIES IN WRITING? HAVE I GONE OVER WHAT I THINK MY DUTIES ARE WITH ANYONE? HAVE I TOLD ANYONE IN THE LAST 3 MONTHS ABOUT THE LIMITS OF MY REPRESENTATIONS? DUTIES TO ORG. A/C PRIVILEGE ISN'T AN INVISIBILITY CLOAK

ARE MY DUTIES IN WRITING?

HAVE I GONE OVER WHAT I THINK MY DUTIES ARE WITH ANYONE?

HAVE I TOLD ANYONE IN THE LAST 3 MONTHS ABOUT THE LIMITS OF MY REPRESENTATIONS?

DUTIES TO ORG.

A/C PRIVILEGE ISN'T AN INVISIBILITY CLOAK

RULE 5 DO YOUR JOB!

DO YOUR JOB!

YOUR SINGLEST BIGGEST ETHICAL CHALLENGE AS A GOVERNMENT LAWYER….

NO MATTER WHAT, REMEMBER WHAT YOUR JOB IS AND DO IT!

PRINCIPAL GARRISON'S TWO SIMPLE RULES BE WHERE YOU ARE SUPPOSED TO BE DOING WHAT YOU ARE SUPPOSED TO DO

BE WHERE YOU ARE SUPPOSED TO BE

DOING WHAT YOU ARE SUPPOSED TO DO

WHAT IS YOUR JOB?

WHAT IS YOUR JOB?

RULE 1 BE WHERE YOU ARE SUPPOSED TO BE

BE WHERE YOU ARE SUPPOSED TO BE

BE WHERE YOU ARE SUPPOSED TO BE

BE WHERE YOU ARE SUPPOSED TO BE

BE WHERE YOU ARE SUPPOSED TO BE

BE WHERE YOU ARE SUPPOSED TO BE

Be Where You Are Supposed to Be

RULE 2 DOING WHAT YOU ARE SUPPOSED TO DO

DOING WHAT YOU ARE SUPPOSED TO DO

DOING WHAT YOU ARE SUPPOSED TO DO

DOING WHAT YOU ARE SUPPOSED TO DO

Doing What You are Supposed To Do

ADDENDUM TO THESE TWO RULES ANSWER TO EACH RULE SHOULD BE BASED ON THE FACT THAT THE ACTION WILL BE KNOWN PRETEND THAT THAT FACT ALONE WILL DECIDE SOMETHING IMPORTANT TO YOU

ANSWER TO EACH RULE SHOULD BE BASED ON THE FACT THAT THE ACTION WILL BE KNOWN

PRETEND THAT THAT FACT ALONE WILL DECIDE SOMETHING IMPORTANT TO YOU

IF YOU VIOLATE THE TWO RULES, YOU NEED AN EXCUSE IF IT'S ABOUT TAKING SOMETHING, DOING SOMETHING, OR GOING SOMEWHERE REMOTELY RELATED TO YOUR JOB, YOU NEED TO TALK TO AN UNINTERESTED PARTY REGARDING YOUR EXCUSE

IF IT'S ABOUT TAKING SOMETHING, DOING SOMETHING, OR GOING SOMEWHERE REMOTELY RELATED TO YOUR JOB, YOU NEED TO TALK TO AN UNINTERESTED PARTY REGARDING YOUR EXCUSE

TEXAS ETHICS COMMISSION GENERAL COUNSEL OUTSIDE LAWYER

TEXAS ETHICS COMMISSION

GENERAL COUNSEL

OUTSIDE LAWYER

EXAMPLE OF WHAT HAPPENS WHEN PEOPLE DECIDE NOT TO DO THEIR JOB

RULE 6 EVERY DAY, ASK WDWDW?

EVERY DAY, ASK

WDWDW?

RULE 6:ASK WHAT DID WE DO WRONG GOAL: ONLY MAKE NEW LEGAL MISTAKES PROBLEM: NOT RECOGNIZING THAT SOMETHING WENT WRONG A MISS IS AS GOOD AS A MILE NO DIFFERENCE BETWEEN ALMOST BEING SUED TO WINNING ON APPEAL

GOAL: ONLY MAKE NEW LEGAL MISTAKES

PROBLEM: NOT RECOGNIZING THAT SOMETHING WENT WRONG

A MISS IS AS GOOD AS A MILE

NO DIFFERENCE BETWEEN ALMOST BEING SUED TO WINNING ON APPEAL

RULE 6: WDWDW YOU HAVE TO UNDERSTAND EACH TRAIN WRECK THIS REALLY ISN'T A TRAIN WRECK THIS REALLY WASN'T A BAD TRAIN WRECK THE CAUSE IS OBVIOUS

THIS REALLY ISN'T A TRAIN WRECK

THIS REALLY WASN'T A BAD TRAIN WRECK

THE CAUSE IS OBVIOUS

LAST ETHICS PROBLEM (ETHICS PROBLEMS ARE LIKE A PITCH AT YOUR HEAD ) I SAW IT COMING WHY DID YOU NOT TO STOP IT BEFORE IT HAPPENED? I DID NOT SEE IT COMING WHY NOT?

I SAW IT COMING

WHY DID YOU NOT TO STOP IT BEFORE IT HAPPENED?

I DID NOT SEE IT COMING

WHY NOT?

THINK ABOUT YOUR LAST ETHICS PROBLEM THAT DEALT WITH YOUR INTERNAL PROCEDURE

WDWDW: 4 GREAT RATIONALZATIONS ACTIVITY IS CONDONED ACTIVITY IS SAFE FROM DISCOVERY ACTIVITY IS IN THE CLIENT'S BEST INTEREST IT NOT ILLEGAL OR IMMORAL, BUT AN ACCEPTED PRACTICE “THE 5 MOST DANGEROUS WORDS IN THE ENGLISH LANGUAGE: EVERY ONE IS DOING IT”

ACTIVITY IS CONDONED

ACTIVITY IS SAFE FROM DISCOVERY

ACTIVITY IS IN THE CLIENT'S BEST INTEREST

IT NOT ILLEGAL OR IMMORAL, BUT AN ACCEPTED PRACTICE

“THE 5 MOST DANGEROUS WORDS IN THE ENGLISH LANGUAGE: EVERY ONE IS DOING IT”

RULE 7 DON'T DRINK THE KOOL AID

DON'T DRINK THE KOOL AID

GREATEST DANGER CORNER OFFICE GREAT VIEW ___ MONTHS TO RETIREMENT CUSHY JOB IT'S A GREAT PLACE TO WORK!

CORNER OFFICE

GREAT VIEW

___ MONTHS TO RETIREMENT

CUSHY JOB

IT'S A GREAT PLACE TO WORK!

HAVE YOU SEEN THE MOVIE, PIRANHA...

EXAMPLES OF DRINKING THE KOOL-AID IT'S ONLY THIS TRANSACTION EVERYONE ELSE IS DOING IT COMMONLY UTILIZED TRANSACTION NOT UNLAWFUL I DON'T WANT TO KNOW BECAUSE I SAID TO DO IT YOU ONLY HAVE TO HOLD YOUR NOSE FOR A MINUTE

IT'S ONLY THIS TRANSACTION

EVERYONE ELSE IS DOING IT

COMMONLY UTILIZED TRANSACTION

NOT UNLAWFUL

I DON'T WANT TO KNOW

BECAUSE I SAID TO DO IT

YOU ONLY HAVE TO HOLD YOUR NOSE FOR A MINUTE

WAYS TO STOP DRINKING THE KOOL-AID PLAY “ASK THE QUESTION THE WAY THE DA/INVESTIGATING COMMITTEE/ MALPRACTICE CARRIER WOULD?”

PLAY “ASK THE QUESTION THE WAY THE DA/INVESTIGATING COMMITTEE/ MALPRACTICE CARRIER WOULD?”

HP:DRINKING THE KOOL-AID IS PRETEXTING, A COMMON UTILIZED INVESTIGATIVE TECHNIQUE, LEGAL? CAN A 3RD PARTY PRETEND TO BE SOMEONE ELSE, OBTAIN PRIVATE PHONE RECORDS WITHOUT AUTHORIZATION AND NOT SUFFER ANY CONSEQUENCES?

IS PRETEXTING, A COMMON UTILIZED INVESTIGATIVE TECHNIQUE, LEGAL?

CAN A 3RD PARTY PRETEND TO BE SOMEONE ELSE, OBTAIN PRIVATE PHONE RECORDS WITHOUT AUTHORIZATION AND NOT SUFFER ANY CONSEQUENCES?

HP:DRINKING THE KOOL-AID PART 2 “I SHOULDN'T HAVE ASKED” OOPS, NOW I KNOW. SO EITHER I HAVE TO TAKE SOME ACTION OR I'LL HAVE TO EXPLAIN MY INACTION WHEN THIS EMAIL IS EXPOSED

“I SHOULDN'T HAVE ASKED”

OOPS, NOW I KNOW. SO EITHER I HAVE TO TAKE SOME ACTION OR I'LL HAVE TO EXPLAIN MY INACTION WHEN THIS EMAIL IS EXPOSED

DON'T DRINK THE KOOL-AID WHY?

WHY?

REMEMBER WHO YOU ARE