Two Wolves And A Lamb Decide On Dinner

Civil Beat's recent story "Mayor, City Council Move Closer to Litigation on Rail" details the potential lawsuit over who gets to control the $18 million budget of the Honolulu Authority for Rapid Transit (HART), the newly created "semi-autonomous" agency that is overseeing the $5 billion rail project. The focus of the story is substance of the dispute over whether the city council or the mayor holds the purse strings, but this passage caught our eye:

In a Wednesday press conference, Honolulu Mayor Peter Carlisle confirmed that he'd be willing to sue the City Council over its position. Carlisle told Civil Beat that the cost of legal fees would not be passed on to taxpayers. He said he sees no conflict of interest with the city lawyers — who represent both the executive and legislative branches — representing both the City Council and the mayor on the issue.

This naturally brings up the question: how can city lawyers represent both sides in a lawsuit between the Mayor and the Council? Are government lawyers not subject to the usual conflict-of-interest and ethical rules that prohibit lawyers from the same office from representing both parties in a lawsuit, especially when both parties are existing clients?

Nope, not in Hawaii. In County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007), a three-Justice majority of the Hawaii Supreme Court held that there is "a well-established distinction between private attorneys representing private parties and government attorneys representing government entities," and concluded that in a lawsuit between the County Council as plaintiff, and the Mayor as the defendant, the County Attorney could represent both sides.

[Disclosure: I represented the taxpayer-intervenors in that case, whose arguments were rejected by the majority opinion.]

The court relied on State v. Klattenhoff, 71 Haw. 598, 801 P.2d 548 (1990), a case in which a deputy in one branch of the State Attorney General's office defended Klattenhoff, while at the same time another deputy from another AG's branch was prosecuting him. The court in that case held that "due to the AG's statutorily mandated role in our legal system, we cannot mechanically apply the Code of Professional Responsibility to the AG's office," and "the ethical rules for private law firms are not necessarily applicable, in all cases, to the AG's office." The Hawaii AG's office is often noted to be the "largest law firm in Hawaii" and presently employs 180 attorneys in a multitude of branches and offices. In Klattenhoff, the deputies were in separate offices and were isolated from each other. In Baptiste, the court applied that rationale to the five-person Kauai County Attorney's office:

As the counterpart to the state AG, the County attorney is also charged with representing "the county in all legal proceedings." [Revised Charter of the County of Kauai] § 8.04. Thus, as the County argues, concurrent representation by the County Attorney of county agencies in intra-government controversies is consistent with Klattenhoff and, therefore, proper, unless such representation results in prejudice, and none has been shown.

Baptiste, 115 Haw. at 31 n.17, 165 P.3d at 932 n.17. There, the County Council hired private lawyers (at taxpayer expense) to represent them in their lawsuit against the mayor. But based on Mayor Carlisle's statement in the HART case that "the cost of legal fees would not be passed on to taxpayers," it is probably not contemplated that outside counsel will be hired, but rather that corporation counsel will represent both parties. (Technically, that still means that the cost will be passed on to taxpayers, only that no additional costs for attorneys fees will be incurred.)

One final technicality: as a municipal corporation without any free-standing sovereign powers, the city is not subject to separation of powers, and any space between the city's executive and legislative "branches" is one of convenience, because there are no branches of city government that corporation counsel represents separately. Rather, it represents the corporation, the city. Thus, the lack of a conflict of interest by the city's lawyer is not driven by the corporation counsel "represent[ing] both the executive and legislative branches" as the story implies. Rather, it is a matter of common law and the Hawaii Supreme Court holding that unless prejudice can be shown, dual representation by government lawyers is just fine, even if private lawyers in the same situation would be acting unethically if they did the same thing.

The real question this piece raises is if a lawsuit between the mayor and the council goes forward, will any other party be allowed to have a seat in the courtroom, or whether the mayor and the council can tailor a lawsuit in such a way that the result is foregone. When politicians are on both sides of a case over the scope of their powers — especially when what is at stake is the power to control purse strings, and government lawyers who work for the politicians represent both parties — it reminds us of a definition apocryphally attributed to Benjamin Franklin: "democracy is two wolves and a lamb voting on what to eat."

Let's hope the city taxpayer isn't the lamb.


About the author: Robert H. Thomas is an attorney with Damon Key Leong Kupchak Hastert, in Honolulu. The views in this piece are his own.

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