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Ethics. How does learning about ethics differ from learning about other stuff? What ethical rules will provide infallible guidance for dealing with every situation? What can you do to reduce risk in this area?. “Problems” in Ethics: Ethics as Values.

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Ethics

  • How does learning about ethics differ from learning about other stuff?

  • What ethical rules will provide infallible guidance for dealing with every situation?

  • What can you do to reduce risk in this area?


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“Problems” in Ethics: Ethics as Values

  • “Legal” equals “ethical.” True or False?

  • Don’t question my ethics.

  • Your ethical standards are always subject to question.

  • Which is more believable: spicy, simple stories or the dull, complicated truth?

  • Where there’s smoke, there’s … (a) fire, or (b) a powerful enemy with a fancy smoke machine?


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What Rules Work All the Time?

  • The Oklahoma Ethics Commission Rules?

  • Your own board’s ethics policy?

  • The Golden Rule?

  • The 9 ½ Commandments?

  • None of the above?


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What can (and should) you do?

  • Refresh your knowledge of the legal rules

  • Revisit your own board’s policy periodically

  • Seek board consensus on values, perks, etc

  • Make early disclosure of potential conflicts

  • Know when to consult your lawyer


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ONE. Thou art a Regent,

  • a Regent hath the Governor created you,

  • a Regent only art thou,

  • and thou shalt hold no other office but this one ---

  • and a few other specified in law.

  • [51 O.S., §6.]


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TWO.Yearly thou shalt sacrifice

  • to the priesthood of the Oklahoma Ethics Commission

  • some

  • (but not very much)

  • financial information about thyself.

  • [74 O.S., Appendix, 257:15-1-7.]


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THREE.Thou shalt not receive,

  • directly or indirectly,

  • any interest, profit or perks,

  • from the use of public monies

  • in your hands.

  • In other words, thou shalt not do business

  • with the institutions thou govern. [Okla. Const., Art. X, §11] …. BUT,


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THREE “A.” The OEC readeth not this part of the Constitution

  • The hand of the lawgiver slipp-est and the etching on the stone tablets blur-est.

  • The Oklahoma Ethics Commission apparently readeth not this part of the Constitution. It sayeth that thou mayst do such business with your institutions if thou disclose fully your interest, on the record, and abstain from voting.

  • That which is an abomination unto the Constitution is acceptable in the sight of the OEC. [20-1-10.] How can this be? Better not to guess.


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The Attorney General issued an official opinion in December, 2004.

  • Article X, Section 11 controls over the Ethics Commission Rules, according to the Attorney General:

    “Thus, although the rule of the Ethics Commission is more liberal, allowing relatively generous exceptions for public members of boards and commissions, we conclude that compliance with such ethics rules will not, and cannot, guarantee that an officer engaging in such conduct will not be subject to criminal sanction and disqualification to hold office under Article X, Section 11 of the Oklahoma Constitution. Conduct that avoids violation of the conflict of interest principles set out in Article X, Section 11 will also avoid violation of the Ethics Commission rules, but not vice versa. If a public member of a board engages in conduct allowed under the provisions of [the Ethics Commission Rules], he or she runs the risk of violating the more stringent constitutional prohibitions.


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The Ethics Commission Rules cannot be read as granting an exception to the Article X, Section 11 prohibition.

Whether a public officer would be prosecuted for a conflict of interest under Article X, Section 11 rests in sound discretion of the district attorney with jurisdiction over the matter. Whether a particular offense is prosecuted as a crime under Article X, Section 11 is a matter of prosecutorial discretion.”

  • State officers, including regents, had come to rely on the guidance provided by the Ethics Commission

    • The rules provided a little certainty in an otherwise uncertain area

  • Meeting with Attorney General’s office

    • First Assistant Attorney General Tom Gruber

      • Would expect local district attorney to use common sense, which would include a “de minimis” standard


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  • State officers, including regents, had come to rely on the guidance provided by the Ethics Commission

    • The rules provided a little certainty in an otherwise uncertain area

  • Meeting with Attorney General’s office

    • First Assistant Attorney General Tom Gruber

      • would expect local district attorney to use common sense, which would include a “de minimis” standard

        • de minimis non curat lex – “The law does not take notice of very small or trifling matters.”


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FOUR. guidance provided by the Ethics Commission It is not sufficient that thou art required to abstain from voting on any matter in which thou hast a pecuniary interest.

  • Even greater purity is required.

  • Thou must keep unto thyself and refrain from trying to influence those brethren and sistern who are allowed to vote on your deal. [20-1-8]


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FIVE. guidance provided by the Ethics Commission Lawyers are especially accursed in the sight of the Ethics Commission.

  • It is easier for a camel to pass through the eye of a needle than it is for a lawyer to serve happily as a Regent.

  • In addition to the afore-inscribed no-nos, (e.g., not doing business with thine institutions) lawyers shalt not even represent entities that do business with the institutions they governst.

  • Lawyers, having eaten at the tree of law school, are further accursed with knowledge of all the subtleties embodied in the term “represent.” [20-1-6.]


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SIX. guidance provided by the Ethics Commission Thou shall beware of geeks bearing gifts.

  • The rules on accepting gifts are fully understandable only to the rule-making gods.

  • It were better for you to rend your garments and pour ashes over your head than to accept a gift prohibited by law. [20-1-9.]


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SEVEN. guidance provided by the Ethics Commission Thou shalt not hire thine own relatives to work for the institutions thou govern,

  • even though they may be more capable than someone else’s relatives. [21 O.S., §§481-7.]


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EIGHT. guidance provided by the Ethics Commission Thou shalt not use thy position to secure special treatment for thyself,

  • or for thy friends and family, by the institutions they govern. [20-1-4.]


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NINE. guidance provided by the Ethics Commission Though shouldst not use thy position to further a political agenda that has nothing to do with your official duties.[20-1-4.]


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Political Campaign guidance provided by the Ethics Commission Activities


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OEC Rules guidance provided by the Ethics Commission

  • Prohibits advocacy activities by state employees on behalf of candidate or ballot measure

    • Use of public funds, property, time

  • State resources may not be used to support the political activities of a Regent


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Exception to OEC prohibition guidance provided by the Ethics Commission

  • Statements made

    • in performance of officer or employees “duties”

    • Or, as allowed by law (statute)

  • Restriction on exception

    • Statute does not trump OEC rule

    • Must be read to harmonize with rule


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Penalties guidance provided by the Ethics Commission

  • OEC authorized by Constitution, Art. 29 §4(a) to

    • Establish civil fines.

      • Willful – up to $50K

      • Inadvertent – up to $15K

    • Prosecute violations in state court

  • Statutory provision- misdeameanor criminal liability – 26 O.S., §16-119


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Summary guidance provided by the Ethics Commission

  • Impossible to list all activities permitted

    • Or, not permitted

  • Use common sense in good faith

  • Consult with legal counsel

  • Legal counsel may want to engage OEC and/or AG


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The Oklahoma Open Meetings Act guidance provided by the Ethics Commission

What You Should Know


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Who is covered? guidance provided by the Ethics Commission

  • All public bodies

  • Does not include

    • staff employees

    • purely advisory groups


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What is a “meeting”? guidance provided by the Ethics Commission

A meeting occurs when a majority of a public body are physically together “conducting public business” -- even if no action is planned or taken.


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Types of “Meetings” guidance provided by the Ethics Commission

  • Regular

  • Special

  • Emergency


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Regular Meetings guidance provided by the Ethics Commission

  • Dates are set in December for the following year

  • Must give 10 days notice prior to changing meeting date


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Special Meetings guidance provided by the Ethics Commission

  • Includes meetings such as COW or SPR

  • Requires 48 hours advance notice


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Emergency Meetings guidance provided by the Ethics Commission

  • Lawful only when life and/or property are threatened and threat was not reasonably foreseeable

  • Requires “reasonable” notice


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Time and place must be convenient to the public guidance provided by the Ethics Commission

Meeting Places


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Committee Meetings guidance provided by the Ethics Commission

Not covered unless committee has actual or de facto decision-making power


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Meeting Notices guidance provided by the Ethics Commission

  • Provide notice to the Secretary of State indicating time, date, space and place of meeting

  • Post meeting agenda 24 hours prior to meeting


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Agenda Requirements guidance provided by the Ethics Commission

  • List all items of business to be transacted, including discussion items and executive session items

  • Describe in plain language; use sentences

  • Identify as “action,” “possible action” or “discussion only”


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Executive Sessions guidance provided by the Ethics Commission

  • For discussions about the employment status of an individual employee

  • For confidential communications with the public body’s attorney about a pending investigation, claim or lawsuit


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Meeting Minutes guidance provided by the Ethics Commission

  • Written minutes must show, at a minimum, those members present and absent, all matters considered and all actions taken

  • Minutes of executive sessions are required but are not open records and thus may be segregated from public minutes

  • COW and SPR meetings are special meetings and are subject to this requirement


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Potential Problem Areas guidance provided by the Ethics Commission

  • Polling for votes by telephone or otherwise

  • Sub-quorum committees having de facto decision-making power

  • Discussion only meetings

  • Social gatherings involving a majority of the members


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Penalties for Violations guidance provided by the Ethics Commission

  • Actions taken in willful violation of the act are null and void.

  • Willful violations of the Act are misdemeanors punishable by a fine not to exceed $500 and/or imprisonment in the County jail not to exceed one year.

    • “Willful” does not require intent to break the law


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Coughing It Up guidance provided by the Ethics Commission

Adventures in Open Records in the Electronic Age


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What Are the Issues? guidance provided by the Ethics Commission

  • Volume of records: do we know what we have?

  • Multiple “publishers” internally: do we know what we have?

  • Unmediated access to web-based records

  • What is really confidential?


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Analyzing ORA Questions guidance provided by the Ethics Commission

  • Are you a public body?

  • Is it a record?

  • Is it a public record?

  • Is it exempt under the ORA?

  • Is it exempt under Oklahoma law?

  • Does it fit the federal exemption?


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Who is covered? guidance provided by the Ethics Commission

  • All public bodies

  • Does not include

    • staff employees

    • purely advisory groups


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Includes all documents guidance provided by the Ethics Commission

Papers

Computer disks

Emails

Sound recordings

Created by or in the possession

Of officials or employees

In connection with

Transaction of public business

Expenditure of public funds

Administering of public property

What Is a Record?


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E-mail guidance provided by the Ethics Commission

  • ORA and Records Management Act both apply

  • Test for email same as other documents

  • Is saving hard copy always good enough?

  • How to redact the electronic version?

  • Protecting the integrity of records


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From: Nat. Assoc. of Col. And Univ. Attorneys on behalf of guidance provided by the Ethics Commission Sent: Wed. 5/3/2006 6:04 PMTo: [email protected]

Have any private, non-medical institutions transitioned to an interpretation that tenure does not guarantee a specific or recurring level of salary or compensation for faculty?

Any policies or written materials relevant to this matter would be appreciated.


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Date: Wed., 3 May 2006 18:42:27 -0070 guidance provided by the Ethics Commission From:Subject: Re: Tenure and Guaranteed Salary

I’ve got to leave for my meeting now and won’t be back till around 10:00 and you will be asleep. Good night, baby. I miss you, but will see you soon. I wish I could give you a nice long sensual kiss before you go to bed, but I’ll save it for when I come out there. Isn’t it funny how it worked out after all. Sleep well. All my love,


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If Public Record, Must Disclose ----- Unless guidance provided by the Ethics Commission

  • Exempt under the ORA

  • Exempt under other Oklahoma law

  • Exempt under federal law


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ORA Exemptions guidance provided by the Ethics Commission

  • Some privileged material (e.g., executive session, attorney client)

  • Some personnel records

  • Some law enforcement records

  • Some student records

  • Some proprietary material

  • Preliminary notes


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Other Oklahoma Laws guidance provided by the Ethics Commission

  • Over 140 statutes provide confidentiality

  • Many juvenile records (also school children)

  • Tax records

  • Retirement systems (individual records)

  • Licensing boards’ disciplinary proceedings


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The Federal Exemption guidance provided by the Ethics Commission

  • Records coming from federal government

    OR

  • Gathered as a result of federal legislation

    AND

  • Required by federal law to be kept confidential


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Disclosure Is the Rule guidance provided by the Ethics Commission

  • Must disclose unless specific exemption applies

  • No individual right of privacy apart from specific exemptions to ORA

  • Government bears burden of proving exemption from disclosure


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Does It Matter Who Asks? Or Why? guidance provided by the Ethics Commission

  • Normally, no BUT

  • Special recognition for news media

  • Also for citizens acting in public interest

  • BUT purely commercial requests subject to search fee

  • Note: special rules on personnel files


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What If You Don’t Comply? guidance provided by the Ethics Commission

  • Criminal penalties: misdemeanor liability for willful violations ($500 and/or 1 year)

  • No liability for producing open records

  • Institution pays attorney’s fee for successful requester

  • No recovery for successful defender unless request was “clearly frivolous”


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Student Records guidance provided by the Ethics Commission

  • ORA intended to mesh with FERPA

  • If differences, FERPA controls

  • Bottom line, confidentiality of individual student records maintained, except directory information


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Scope of Public Access guidance provided by the Ethics Commission

  • General rule: records open for inspection, copying and/or mechanical reproduction

  • Can/must segregate (redact) exempt material from otherwise open record

  • Must produce records within “reasonable” time

  • Must have someone available to decide what’s open


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Personnel Records: What’s Confidential? guidance provided by the Ethics Commission

  • Internal personnel investigative materials

  • Examination and selection material

  • Records from lawful executive session

  • Payroll deductions

  • Employee evaluations

  • Applications of persons not hired

  • Home addresses, phone numbers, and SSNs


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Personnel Records: What’s Open? guidance provided by the Ethics Commission

Everything else, including

  • Application of person hired

  • Gross receipt of public funds

  • Dates of employment, title (or position)

  • Result of final disciplinary action


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Employee Records: Who May Inspect and Copy? guidance provided by the Ethics Commission

  • Current employees

  • Past employees (unclear but probably yes)

  • Authorized representatives of employees (document authority of representative)


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Attorney-supervised Investigations guidance provided by the Ethics Commission

  • Investigative reports

  • Litigation files

  • Ties in with attorney-client privilege and work-product doctrines


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Conclusion guidance provided by the Ethics Commission

  • Strong public policy for disclosure

  • The AG is usually pro-disclosure

  • If no exemption, think disclosure

  • If disclosure is optional, review reasons for non-disclosure

  • Ask question: why not disclose?


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THE ETHICS OF OPENNESS guidance provided by the Ethics Commission

Challenges for Government Officials and Their Lawyers


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Common Dilemmas guidance provided by the Ethics Commission

  • Desire for private discussions on hot topics.

  • Fear of media criticism if you get it “wrong” even if you’re “right” on the law.

  • Fear of second guessing by AG.

  • Everyone’s an expert on what’s open and/or ethical.


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Ethical Issues (Lawyers) guidance provided by the Ethics Commission

  • Is technical compliance good enough?

  • How to resolve differences among “clients”

  • What client secrets are confidential?

  • Suppose client won’t comply?


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See the Big Picture guidance provided by the Ethics Commission

  • For the OFFICIAL:

    • Openness issues are:

      • Big picture.

      • Public perception.

      • Public policy.

    • Technical compliance with the law is not always enough.


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See the Big Picture (Continued) guidance provided by the Ethics Commission

  • For the LAWYER:

    • Openness issues are:

      • Big picture.

      • Public perception.

      • Public policy.

    • Avoid having your role limited to matters of purely technical compliance with the law.


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Truth Telling guidance provided by the Ethics Commission

  • Officials: expect your lawyer to always give you candid legal advice.

  • Lawyers: always “call ‘em like you see ‘em.”


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Know Who The Client Is guidance provided by the Ethics Commission

  • Officials: always remember who the client really is (it’s the agency you work for, not you) and understand where you fit in the overall picture.

  • Lawyers: always remember who the client really is (help constituents understand where they fit in the overall picture).


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What Is Lawyerly Discretion? guidance provided by the Ethics Commission

  • Officials: try to raise delicate legal issues in private but always assume your lawyer’s advice will be made public.

  • Lawyers: always try to provide your advice in private; always assume your advice will be made public.


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Where’s the Attorney General? guidance provided by the Ethics Commission

  • Officials: expect your lawyer to be familiar with the attorney general’s current advice on openness issues. (His/her view will always trump your lawyer’s.)

  • Lawyers: try to stay in touch with the attorney general’s advice on openness issues. (His/her view will always trump yours).


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You Have to Know the Territory guidance provided by the Ethics Commission

Officials: familiarize yourself with the openness practices of other, similar public bodies.


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You Have to Know the Territory (Continued) guidance provided by the Ethics Commission

  • Lawyers: unless ethical considerations require you to do otherwise, avoid being the lone wildebeest on the Serengeti.


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Criminal guidance provided by the Ethics Commission Liability

  • Officials: remember that there is potential criminal-liability card for violations of the openness laws. If you are in doubt about that, ask your lawyer.

  • Lawyers: don’t play the potential-criminal-liability card unless you really need it but don’t hesitate to play it (privately, if possible) if you must.


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What Difference Does It Make? guidance provided by the Ethics Commission

  • Officials: if confidentiality isn’t mandated or otherwise justified, always ask yourself what the harm is in releasing a particular record

  • Lawyers: if confidentiality isn’t mandated or otherwise justified, always ask the client what the harm is in releasing a particular record


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Be Prepared guidance provided by the Ethics Commission

  • Officials: always have your lawyer review a proposed meeting agenda well in advance of the meeting.

  • Lawyers: always review a proposed meeting agenda in advance of the meeting (in time to comment, constructively if possible).


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Be Educated guidance provided by the Ethics Commission

  • Officials: ask your attorney for periodic briefings on current openness issues, especially in emerging areas.

  • Lawyers: look for, and exploit, opportunities to educate the client about openness issues, especially in emerging areas (e.g., email).


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Duty of Confidentiality guidance provided by the Ethics Commission

  • Confidentiality is an ethical duty: the attorney is obligated not to reveal information given by the client in confidence for the purpose of obtaining or providing legal assistance.

  • Doesn’t apply to fraud or crime.

  • It’s the same duty for government and private lawyers.


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Attorney-client Privilege guidance provided by the Ethics Commission

  • The privilege is a rule of evidence.

  • It belongs to the client.

  • It allows the client to refuse to disclose or to prevent the disclosure of communications facilitating the provision of legal services.

  • Some exceptions – fraud, etc


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Attorney-client Privilege for Public Officers and Agencies guidance provided by the Ethics Commission

  • The privilege is limited to pending investigations or litigation.

  • “Ordinary” legal advice to public officials not covered by the privilege.

  • Privilege destroyed by communication to non-client third parties.


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Advice: How Technical? guidance provided by the Ethics Commission

  • Is the client experienced in legal matters?

  • A lawyer may refer not only to law but to other relevant considerations such as moral, economic, social and political factors.

  • A lawyer shall exercise independent professional judgment and render candid advice.


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Ethics: What-Me Worry? guidance provided by the Ethics Commission

  • Moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.


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Is the “Customer” Always Right? guidance provided by the Ethics Commission

  • Normally, a lawyer is required to abide by a client’s decisions concerning the goals of representation.”

  • A government lawyer may have authority to question the client’s conduct more extensively than a lawyer for a private organization in similar circumstances.


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What If the Client Wants to Do Something Wrong? guidance provided by the Ethics Commission

  • A client is entitled to straightforward advice expressing the lawyer’s honest assessment.

  • Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.

  • A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.


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What Is the Lawyer’s Duty? guidance provided by the Ethics Commission

  • If it’s a violation of law for the organization, and

  • Is likely to result in substantial injury to the organization,

  • The lawyer shall proceed in the best interest of the organization


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Doing the Right Thing guidance provided by the Ethics Commission

  • To do the right thing you have to know the right thing: education.

  • Avoiding embarrassing mistakes requires thinking ahead: preparation.

  • Government lawyers should know their clients’ plans: communication.

  • The legal requirements should be viewed in the context of good public policy: wisdom.


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Questions? guidance provided by the Ethics Commission


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