Serving the Public and Avoiding Conflicts [Updated]
The North Carolina Rules of Professional Conduct create unique challenges for lawyers appointed to public office.
Photo by DPS
Editor’s Note, July 26, 2013: Secretary Shanahan resigned from his position today, effective July 31, citing a need to “concentrate on his law firm, other business obligations and to support his wife in her new capacity as Rear Admiral in the U.S. Navy.”
Finding controversy in the appointment of government officials by new political leaders is not unusual. Opponents question the backgrounds of the new appointees and take umbrage with the newly elected leader’s decisions. Most often, the arguments against a particular appointee are politically motivated, spearheaded by those from the opposing side of the aisle. The appointment of North Carolina’s new Secretary of the Department of Public Safety, however, raised questions of a different sort. Governor McCrory’s appointment of Raleigh-based lawyer Kieran Shanahan generated the expected political debate, but because Shanahan is a lawyer, his appointment to a political role potentially involved issues of legal ethics.
The Rules of Professional Conduct govern not only lawyers practicing law but also lawyers holding public office.
Shanahan took office in January of 2013 but continued his private practice on a limited basis, providing legal advice and consultation to clients but neither appearing in court nor taking depositions after accepting the public position. Maintaining his previous employment would not be an issue were Shanahan not a lawyer. Upon approval from a superior, state government employees may have second jobs, and Sec. Shanahan completed the necessary paperwork to allow him to maintain his private practice on nights and weekends. The problem, however, was that Shanahan’s profession is not just any profession; he is a lawyer, and the Rules of Professional Conduct govern lawyers practicing law and lawyers holding public office.
Specifically, the Rules address conflicts of interest for those lawyers serving as public officials, lawyers’ actions while holding office, and the use of a public official-lawyer’s name in his firm’s communications. Despite the concern expressed by opponents, Sec. Shanahan appears to be in general compliance with the Rules. Even while maintaining his limited client communications, he and his firm took measures to avoid conflicts. The Shanahan Law Group ended their representation of criminal clients in state court, and since taking office, Shanahan and his associates have not appeared before the General Assembly on behalf of clients. Finally, in May 2013, after media and opposition probing, Shanahan announced that he would take a leave of absence from private practice while serving in his appointed position. Shanahan ended even limited consulting and advising in order to avoid fully any conflicts of interest.
One area of compliance that may prove more difficult for Sec. Shanahan is Rule 7.5(d), which prohibits the use of “the name of a lawyer holding a public office…in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm, whether or not the lawyer is precluded from practicing law.”
Founded in 2001 by the Secretary, the Shanahan Law Group blatantly bears its founder’s name. As recently as May 2013, however, Shanahan was working with the State Bar to address this rather tricky issue. His firm, as well, has taken steps to comply with the rule as best as possible. On its website is a disclaimer, found on the Home Page and in the “About Us” section, stating clearly that Sec. Shanahan is taking a leave of absence while serving in Gov. McCrory’s cabinet. It appears that the firm and its founder are making efforts to comply with the state’s Rules of Professional Conduct.
Lawyers’ knowledge of the legal system makes them “uniquely qualified” to serve as public officials.
Political concerns aside, the ethical issues involved in lawyers holding public office are important and the rules necessary. Rule 6.6, adopted in July 1997 and amended in March 2003, prohibits lawyers from using their public positions to further their own political agendas or that of their clients to the detriment of the public interest. The rule further condemns even attempts by a lawyer serving in public office to influence “a tribunal to act in favor of himself or herself or his or her client” and states that lawyers in political office cannot accept “anything of value” that is meant to influence “the lawyer’s action as a public official.”
The language and instruction in the rule are not surprising. Certainly no public official should use her power improperly or accept bribes and improper favors. The comment to this particular rule, however, addresses the unique position of a lawyer who is also a public official. Comment 1 to Rule 6.6 recognizes that having lawyers hold public office “highly desirable, as lawyers are uniquely qualified to make significant improvements to the legal system.” As the rule recognizes, it is their knowledge of the legal system that makes lawyers “uniquely qualified,” but it is this knowledge that makes it even more important for lawyers to uphold high ethical standards when in public office. While the rule addresses only the use of a public position to gain special advantages, it is also important for lawyers to refrain from using their knowledge of the law and the legal system to the detriment of other public officials and the public at large.
Special conflict rules attempt to balance interests between maintaining confidentiality and encouraging public service.
In addition to their knowledge of the law, lawyers serving as public officials face another challenge: special conflicts of interest. Not only are these officials charged with not promoting their personal interests while in office, but they must also take care not to promote the interests of those clients they served while practicing law.
Conflicts of interest are a primary concern for all lawyers, not just those in public office. In fact, the North Carolina Rules of Professional Conduct dedicate five ethics rules to the topic of conflicts. Rule 1.11, adopted in July 1994 and amended in March 2003 and October 2004, specifically addresses the special conflicts faced by those lawyers who have previously or who currently serve in public office. The rule prohibits a lawyer from participating as a public official in matters “in which the lawyer participated personally and substantially while in private practice,” unless she receives consent from the appropriate government agency.
Rule 1.11 also prohibits former public officials from representing clients “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.” The lawyer’s firm is also disqualified from representing such clients, unless the appropriate screening measures have been taken and consent given. Finally, a lawyer who has confidential government information based on his public service may not represent a private client who has adverse interests if the information could be used to the person’s disadvantage.
The similarities between this public official-specific rule and the general conflict rules illustrate the importance of maintaining ethical standards while serving the public. It is an added reminder to lawyers in public positions that they represent many clients with many interests: former private clients, the government, and the public. Comment 4 to Rule 1.11 calls the rule “a balancing of interests.” These interests are both an effort to prevent certain clients from benefitting from the lawyer’s governmental involvement and to insure no one is advantaged – or disadvantaged – by the former public official’s confidential information. The balancing of interests also serves as a step to ensure that lawyers transfer from public to private jobs relatively easily. Conflicts of interest are to be avoided, but lawyers are not meant to be discouraged from governmental work by potential conflicts.
The rules aimed at public officials represent lawyers’ unique qualifications and the unique challenges they face.
North Carolina is not alone in its special ethical rules for lawyers serving as public officials. The Model Rules of Professional Conduct, as well as most states’ rules, contain rules that specifically address lawyers’ conduct during and after their tenure as public officials. These special rules represent the idea that lawyers are, in fact, “uniquely qualified” to serve the public, but they also illustrate the unique challenge of being a lawyer and a public official. Cases like that of Kieran Shanahan evidence the difficulty of complying fully with those specific directives. Instead of simply holding lawyer-public officials to the general Rules, unique rules have been created to insure that lawyers do not use their knowledge and positions to the detriment of their clients, the public, and the government.
