So I have a small issue with a state government agency regarding a very unfair (in my opinion) fine (okay, maybe it’s not a small issue…more like a crippling one). Anyway, I spoke to my lawyer and gave him all the details.
Now, my lawyer is a state senator. He said that he would call the agency not as my lawyer, but as a state senator “with a concerned constituent.” I’d assume that to mean he’d have a little more pull with them. My lawyer’s a great guy, a good lawyer, and I’m sure he’s very observant of legal ethics, as good lawyers are.
However, I’m really curious now. Seems to me that it’s a violation of ethics and a conflict of interest to use an elected position to gain an advantage in your professional interests. Am I wrong, or is my definition too broad?
Interesting question. Elected officials do this kind of thing all the time for their constituents. In this case, you happen to be both a constituent and a client. I wonder whether your state legislature or state law has any restrictions on this kind of thing. Of course, to look into that question, we’re going to have to know what state you live in.
A possible problem I see is that in my view when an elected official goes to bat for a constituent, it should be a matter of public record. However, in many cases someone who’s your lawyer has a right to keep his activities secret. (Of course, in either case, the state regulatory agency in question doesn’t have to keep it secret. Indeed, I should hope they wouldn’t.)
IANAL, but one issue in favor of it being legal is that, well, he is your state Senator. Should his constituants as State Senator be everyone in the state, except a few people who happen to be his clients? How would that be fair to them (you)?
I think this is ethical, as long as you aren’t billed for legal services for this contact. I’d consider getting him a nice Christmas present if things work out well for you.
I’d say as long as he doesn’t charge you for what he’s doing. Otherwise you’ve got a nice little bribery scandal on your hands. And I mean he can’t accept a single cent for the work he’s doing, not even the initial consultation.
So he’s willing to scarifice time he would be spending assisting his own constituents to assist people who are not his constituents, in his capacity as a public official, a job for which he is already being paid by the public, so long as those people he’s helping pay him, individually (as opposed to reimbursing the state for his time).
This guy has schmuck written all over him, IMHO.
If he thinks you could be helped by a state Senator, he should direct you to your own Senator.
I don’t see how it would be any different for individual in District 1 to pay a Senator in District 2 to act in an official capacity to vote on a bill or to do any offical act. This stinks.
He’s already being paid by the public to help people as an elected official. He shouldn’t be paid twice, nor should he be able to personally profit from neglecting his own constituents to assist people in another district. If I was a taxpayer in his district, I would be pissed.
If you are really worried that you might be caught in the middle in an ethical mess I would tell the Senator, in writing if necessary, to stop all action on my behalf. And in all matters where you have a complaint with a state agency, go to a different lawyer.
I might write a letter similar to what Dave Simmons suggests, but with a difference. I am guessing that a lawyer, and state senator knows more about what is considered legal / ethical than any of us. So I would not tell him to stop all activities. Instead I would tell him that I am concerned that his actions on my behalf could be seen as a conflict of interest. I would ask him for assurances as both my lawyer, and as a state senator that this is not so. If his actions could be considered as a conflict of interest, then I would instruct him to stop the activity on my behalf.
That way if what he is doing is considered above board, the problem gets fixed. If what he is doing is slightly shady, and he stops, no harm no foul. If what he is doing is very shady and/or he does not stop, you have a get out of jail free card to show that you had no intent to break the law.
IMHO I don’t consider this to be a problem unless he bills you for the time. I am guessing that senators and other elected officials intercede on a regular basis on behalf of their friends with various agencies even though their friends may not live in their district.
All my posts are WAGs, BTW. I am not giving legal advice and you are not my client.
That said…
Bear in mind that state senators are probably not barred from maintaining a profession outside their role as elected officials.
So, I would think that he could either (1) act striclty as a private attorney for private pay using private letterhead; or (2) act as a senator for public pay on public letterhead. He shouldn’t mix the two.
When he acts in his role as an elected offical, performing offical acts on behalf of the state or the people or writing letters on official letterhead, he shouldn’t bill for it, IMHO.
Now, if he made a phone call and said, “This is Senator Smith calling on behalf of a private client,” he will have gotten the message across as to his identity by throwing his title around, but I’m not so sure it would be an ethical breach.
How do you know he’s spending less time assisting his own constituents? Maybe he’s sacrificing time he’d be spending working for other clients – which means less time he can bill them for, but that’s his choice.
Calling someone and mentioning his title so they take him a bit more seriously doesn’t seem remotely on par with selling his vote. He’s not using any of the powers granted to him as a senator to help the OP. He’s just hoping the mere act of mentioning he’s a senator will help.
It does seem a bit dishonest not to disclose that the OP is a private client. But if he doesn’t charge a fee for the call – the OP doesn’t make this clear – then I can’t see how anyone could object. There’s no law I know of that a senator can’t use their influence to help someone they know personally – whereas there presumably are laws against selling their influence. (Although I’m not sure just name-dropping the fact that he’s a senator counts.)
Again, how do you know he’s spending any less time working for his constituents as a result? That seems like a pretty big leap on your part. Do normal state senators spend 24 hours a day, seven days a week working for their constituents? Seems like that would make it pretty hard for him to hold down a second job as a lawyer. (And anyway, how much time does it take to make one phone call.)
Agent Foxtrot, although IANAL, I can’t imagine any way that you could get in trouble for this. If your lawyer/senator tells you something is OK, how could anyone expect you to know the ethical rules better than him? So at most I’d just say “Hey, I just want to make sure you (the senator) can’t get in any trouble for using your position to help me, seeing as I’m your client.” That’s all anyone could reasonably expect of you. If he tells you it’s not against the rules, who are you to argue?
If I’m reading this correctly, the lawyer is a state senator, and state senators, unless they’re elected at-large, represent districts the same way state representatives do (albeit usually larger districts). This will vary by state, though.