Ethics around the Country
•
3 recomendaciones•1,306 vistas
The document summarizes an ethics presentation given by three experts on ethics for planners. It discusses the AICP Code of Ethics and compares it to ethical codes of other professions like architecture, landscape architecture, and engineering. It also provides examples of state ethics laws and hypothetical ethics scenarios that planners may face. Attendees are encouraged to ask questions throughout.
Recomendados
Más contenido relacionado
La actualidad más candente
La actualidad más candente (13)
Similar a Ethics around the Country
Similar a Ethics around the Country (20)
Más de American Planning Association - Massachusetts Chapter
Más de American Planning Association - Massachusetts Chapter (20)
Último
Último (20)
Ethics around the Country
- 1. Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP
- 2. Ethics Around the Country Anna Breinich, AICP Benjamin Frost, Esq., AICP Dwight Merriam, Esq., FAICP Providence October 21, 2011
- 27. Beware: What You Say to Your Government Lawyer May Not Be Confidential Government Lawyer-Client Confidentiality Special Thanks to Patricia E. Salkin Raymond & Ella Smith Distinguished Professor of Law, Albany Law School
- 32. Issue #1 – Attorney Ethics A Lawyer’s Responsibility to Protect Client Confidences
- 36. Issue #2 – The Privilege of Confidentiality
- 50. Ethics Questions
- 54. Ethics Scenarios
- 58. How about a few real cases from the courts?
Notas del editor
- 15 Total Cases 10 Cases Resolved 4 Charges Dismissed and Not Appealed 2 Anonymous Charges Dismissed 1 Charge Settled 1 Respondent Resigned 1 Respondent's Membership Lapsed 1 Respondent Died 5 Cases Pending 1 Charge Pending Investigation 1 Complaint Pending Respondent's Cooperation 1 Complaint Pending Review 2 Charges Appealed Ethics Committee Actions No actions Requests for Formal Advice No requests Ethics Cases During 2005 7 Total Cases 2 Cases Resolved 1 Complaint Resolved by Settlement Agreement Reached by Ethics Committee and Respondent 1 Complaint Resolved by Court Approved Settlement Agreement 5 Cases Pending 3 Charges Under Review by Ethics Officer 1 Charge Pending Charging Party's Submission of Additional Information 1 Charge Pending Response from Respondent Ethics Committee Actions 5 Ethics Committee Actions in 2 Cases 1 Tabled Action in Settlement Agreement Pending Further Negotiations 1 Approved Settlement Agreement 1 Upheld the Ethics Officer's Partial Dismissal of Charges 1 Determined Member Violated the Code. 1 Made Disciplinary Action Recommendations to the Commission (under old Code rules) Requests for Formal Advice No requests
- Canons, Ethical Standards (aspirational principles), and Rules (mandatory) Rule 1.101 states: In practicing architecture, Members shall demonstrate a consistent pattern of reasonable care and competence, and shall apply the technical knowledge and skill which is ordinarily applied by architects of good standing practicing in the same locality. Rule 3.201 states: A Member shall not render professional services if the Member’s professional judgment could be affected by responsibilities to another project or person, or by the Member’s own interests, unless all those who rely on the Member’s judgment consent after full disclosure. The Complainant and his wife retained Mr. Briggs’s firm to design a new home for their retirement. They informed Mr. Briggs that they wanted a home of approximately 3,500 square feet, a construction cost of about $500,000 or less, and a completion date within 10 months. When Mr. Briggs presented an initial schematic design of more than 7,000 square feet, the Complainant requested reductions. During the following month, Mr. Briggs presented additional schematic designs, each of which contained more than 6,300 square feet of enclosed living area. The initial construction cost estimates, which were provided by the project’s general contractor hired by the Complainant, exceeded $800,000. The Complainant repeated his request that cuts be made and understood that Mr. Briggs would redesign the house so that it could be built for the Complainant’s increased budget of $700,000. As design work progressed, Mr. Briggs and his firm communicated primarily with the Complainant’s wife and not the Complainant. Construction began based on preliminary plans provided by the firm. Final construction drawings were completed more than four months later, which was subsequent to the originally requested completion date for the project. Prior to the completion of the foundations and more than three months before the drawings were completed, Mr. Briggs had begun a romantic relationship with the Complainant’s wife. Mr. Briggs continued to work and bill on the project and never disclosed the affair to the Complainant. The Complainant learned of the affair about three months after construction had begun. He and his wife separated and subsequently divorced, he retained ownership of and financial responsibility for the project, and he terminated Mr. Briggs’s involvement in the project. The home ultimately cost more than $1 million to construct and contains more than 6,000 square feet of living area plus more than 2,000 square feet of porches and a detached garage of more than 1,100 square feet. The National Ethics Council ruled that Mr. Briggs violated Rule 1.101 of the Code of Ethics by designing a home far in excess of the written objectives of his clients and by failing to confirm that the Complainant, as well as his wife, had agreed to revise his objectives for scope, budget, and schedule. The Council concluded that this conduct constitutes a failure to demonstrate a consistent pattern of reasonable care and competence in the delivery of services and a failure to apply the technical knowledge and skill which is ordinarily applied by architects of good standing doing similar projects. The Council noted that, in light of Mr. Briggs’s personal relationship with the Complainant’s wife, he cannot justify his decisions on the project as having been made in response to directions that she alone gave. The Council also ruled that Mr. Briggs violated Rule 3.201 because, although his personal relationship with the Complainant’s wife certainly could have affected his professional judgment while rendering professional services, he did not disclose his conflict or resign from the project. The Council imposed the penalty of a two-year suspension of membership on Mr. Briggs.
- National Soc'y of Prof. Engineers v. United States, 435 U.S. 679 (1978) http://supreme.justia.com/us/435/679/case.html#696 11(c). He shall not solicit or submit engineering proposals on the basis of competitive bidding. Competitive bidding for professional engineering services is defined as the formal or informal submission, or receipt, of verbal or written estimates of cost or proposals in terms of dollars, man days of work required, percentage of construction cost, or any other measure of compensation whereby the prospective client may compare engineering services on a price basis prior to the time that one engineer, or one engineering organization, has been selected for negotiations. The disclosure of recommended fee schedules prepared by various engineering societies is not considered to constitute competitive bidding. An Engineer requested to submit a fee proposal or bid prior to the selection of an engineer or firm subject to the negotiation of a satisfactory contract, shall attempt to have the procedure changed to conform to ethical practices, but if not successful he shall withdraw from consideration for the proposed work. These principles shall be applied by the Engineer in obtaining the services of other professionals. “ The Sherman Act does not require competitive bidding; it prohibits unreasonable restraints on competition. Petitioner's ban on competitive bidding prevents all customers from making price comparisons in the initial selection of an engineer, and imposes the Society's views of the costs and benefits of competition on the entire marketplace.” Id. at 694-5. “ We are faced with a contention that a total ban on competitive bidding is necessary because otherwise engineers will be tempted to submit deceptively low bids. Certainly, the problem of professional exception is a proper subject of an ethical canon. But, once again, the equation of competition with deception, like the similar equation with safety hazards, is simply too broad; we may assume that competition is not entirely conducive to ethical behavior, but that is not a reason, cognizable under the Sherman Act, for doing away with competition. ” Id. at 696.
- It is a basic rule of evidence and one so commonly accepted that the American public watching “made for TV lawyering” knows it as truth - conversations between lawyers and clients are afforded the privilege of confidentiality. During the last five years, however, this notion has not only been challenged, but to some extent, it is has been turned upside down with respect to conversations between government lawyers and their clients. While many would like to point to this as a legacy of the Whitewater investigation and the Clinton White House, the fact remains that the issues have manifested themselves at the state and local levels as well, prompting decisions in the 7 th , 8 th and 9 th circuit federal courts of appeals. The privilege extended to attorney-client relationships in the government setting is confusing and not as clear-cut as the privilege in other lawyer-client settings. In fact, one reporter has commented that in the area of government attorney-client privilege, government lawyers “are in a legal no-man’s land.” [1] The pattern emerging is that for cases involving government lawyers and their government clients, a different set of rules for the applicability of the attorney-client privilege has emerged in the criminal activity arena. [2] These decisions are discussed below, as well as a general discussion of the reasons for and against recognizing a privilege for government lawyer-client conversations. While there are no federal district court or circuit court opinions covering this subject in New York, the most recent pronouncement from the Seventh Circuit just one month ago provides persuasive authority on how these situations are likely to be resolved in New York. [1] Walter Pincus, “No Clear Legal Answer: The Uncertain State of the Government Attorney-Client Privilege,” 4 Green Bag 2d 269 (2001). [2] In the most recent case on point, the Seventh Circuit stated, “There is surprisingly little case law on whether a government agency may also be a client for purposes of this privilege, but both parties here concede that, at least in the civil and regulatory context, the government is entitled to the same attorney-client privilege as any other client.” In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (7 th Cir. 2002) citing, Green v IRS , 556 F. Supp. 79, 85 (N.D. Ind. 1982) aff’d 734 F.2d 18 (7 th Cir. 1984); and Restatement (Third) of Law Governing Lawyers sec. 74 (2000).
- Perhaps the most important reason in support of the lawyer-client privilege is the necessity of ensuring that there be full and frank communication between lawyers and their clients which promotes the broader public interests in the observance of law and administration of justice. [1] It follows, then, if there were no guarantee that these conversations would be protected as confidential, then lawyers would not have access to all of the detailed information needed to zealously represent clients and to uphold the law. [2] In the government context, it has been argued that if government officials know that conversations with their legal counsel are not privileged, public officials might avoid discussing sensitive matters with counsel, which could lead to legal violations and even corruption. [3] It has further been suggested that uninformed public officials would be afraid to obtain legal advice and could be unable to effectively carry out their policy objectives which would serve to hamper the implementation of government programs. [4] Ultimately, proponents of the privilege assert that absent a privilege, people might be unwilling to serve in public office. [5] [1] Adam Chud, “In Defense of the Government Attorney-Client Privilege,” 84 Cornell L. Rev. 1682 (1999), citing Upjohn v United States, 449 U. S. 383 (1981). [2] See, Marion J. Radson and Elizabeth A. Waratuke, “The Attorney-Client and Work Product Privileges of Government Entities,” 30 Stetson L. Rev. 799 (2001). See also, Swidler & Berlin v United States, 524 U.S. 399 (1998). [3] In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (2002). [4] Id. citing Duces Tecum , 112 F.3d at 932 (Kopf, J., dissenting). [5] In Re: A Witness before the Special Grand Jury 2000-2 , 2002 U.S. App. LEXIS 7477 (2002).
- Generally, application of the attorney-client privilege may result in the exclusion of relevant evidence, and therefore it stands “in derogation of the search for truth.” [1] The most persuasive argument against extending the privilege for government lawyers-clients is that in the public practice of law, the ultimate client might be the general public, and not the public official. A discussion of “who is the client of the government lawyer” is also frought with legal uncertainty and it remains somewhat unsettled in opinions and law reviews across the country. Rather, in the context of discussing whether a privilege of confidentiality ought to attach in the government setting, the courts have looked not necessarily to clearly define the client of the government lawyer, but rather they have carved out a “higher duty” of government lawyers to act in the public interest. [1] It has also been argued that public officials are not the same as ordinary citizen-clients, because public officials are empowered to exercise the power of government. With this responsibility comes a responsibility to act in the public interest, and “It follows that [a] government lawyer [is] duty-bound to report internal criminal violations, not to shield them from public exposure.” [2] Lastly, following the spirit of the Freedom of Information laws at the federal and state levels, there is a strongly held belief that government information should be open and available to the public [3] and that such openness in government protects the people from a potentially corruptible government. Of course, government officials may always retain, at their own expense, a non-government lawyer and presumably any and all conversations would be entitled to the traditional attorney-client privilege. [1] Id. citing Lindsay , 158 F.3d at 1273; and Comment to ABA Model Rule 1.13 which notes that “government lawyers may have higher duty to rectify wrongful official acts despite general rule of confidentiality.” [2] Id. citing Nixon , 418 U.S. at 712-12; and Lindsay, 158 F.3d at 1273. [3] See, Lindsay , 158 F.3d at 1274 citing In re Sealed Case (Espy) , 121 F.3d at 749. [1] United States v Nixon , 418 U.S. 683, 710 (1974).
- These cases remain troubling for government lawyers who are charged with representing their clients zealously, and who seek truth and to simply “do the right thing.” It seems as though government lawyers may not always be able to pick to their clients, but savvy government official should be careful to pick and choose what lawyer (public or private) they choose to confide in. This comes, of course, at a cost - to the public official should he or she choose to retain private outside counsel, and to the public because it could hamper the efficient and effective operation of government and presents a potential for underutilization of the government lawyer. Furthermore, if public officials are forced to retain private outside legal counsel, the billing for such services could meet or exceed the public official’s salary, making it unattractive to serve the public. This is remains an area of ethics law ripe for reform. Judge Kopf’s dissent in Lindsay offers a judicial alternative to the quagmire. He suggests a balancing test of sorts that would have the court weigh the government lawyer-client privilege with the public’s right to know based upon evidence submitted in camera to the Court. Others have argued that courts should make a factual inquiry into whether the government official was acting in public or private matter in deciding whether to attach the privilege. [1] Both a statutory solution and modifications to the Rules of Evidence and to the Code or Rules of Professional Conduct are warranted to provide a clear and consistent path. This is a debate that compels the dialogue and engaged debate of the public, not solely the private bar. [1] See, Adam Chud, “In Defense of the Government Attorney-Client Privilege,” 84 Cornell L. Rev. 1682 at 1728 (1999).
- Key recommendations of the Statewide Grand Jury include: - Expanding the definition of public employees to include private employees contracted by government entities that perform government services; - Creating sentencing enhancements for offenses committed by officials who use their public position to facilitate their crimes; - Creating an independent State Office of Inspector General, responsible for hiring and firing agency Inspectors General; - Expanding definition of criminal bid tampering to include bid-rigging schemes; and - Authorizing the Ethics Commission to initiate investigations with a supermajority vote of commission members. Grand Jury’s term expires in February 2011.
- Section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” is properly confined to cover only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within the Court’s confinement of §1346’s proscription.
- There are several possible examples. A planner must not receive favorable mortgage terms not available to the typical customer if a bank is expanding with several locations requiring approval from the planner’s agency, for example; a planner could not have a country club initiation fee waived should its board include developers, architects, and attorneys with business interests requiring approvals of the planner’s employer.
- Responses to this scenario will vary based on the assumptions that are made. On the assumption that the planner will not be working in both positions, the discussion comes back to disclosure. It is important for the planner to talk to the current employer and let them know their intentions and ensure them that they will not work on their plan. If the planner chooses to continue with their public sector work, but privately consult on the project on the side, there may be ethical considerations to consider. If the planner chooses to accept the position, effective immediately, another set of concerns is raised. The Code of Ethics says that the planner’s primary focus is to serve the public interest. If a planner is resigning in the middle of a major project to take the other position, they need to ensure that it will be a transition that will not adversely affect the community.
- As a planner, you are likely to get requests for transportation, security or development issues regarding the stadium or university. You do not want to be beholden or have the University think you should be beholden for something as simple as -- well, for anything, but certainly not for a ticket in a box seat. Ideally, the planner would want to ethically keep things at arm’s length or longer. In doing so, this is not so much the issue as who pays for the ticket or who reimburses for the ticket, but who is in an atmosphere or a context that may allow certain conversations to occur that would not be privy to those who may have other views on university issues.
- The recommended course of action often varies based on situational variables, such as the size of an office or department. It is important to reflect and consider how these circumstances influence the outcome. If it is a larger department, there is usually more than one person who handles permits and applications. It would be best to explain to the friend that if they are going to keep the friendship, that they cannot expect to continue a business relationship as well. They would need to trust that they trained additional staff to effectively review plans. In a small, resource-strapped planning department, it may be necessary to make arrangements with a neighboring jurisdiction or hire an outside consultant to perform reviews.
- Planners must often negotiate several roles simultaneously – in this case, their role as property owner, neighbor, and public servant. It often helps to clearly identify ethical obligations of each role, as well as personal interests of each. This practice of reflection helps separate competing interests that a planner may experience, and assist them in making ethical decisions. In a similar situation, a planner handled the situation as such: They went to the city manager and explained the violations, disclosing that they owned property. The planner discussed the facts of the situation and questioned whether the city manager wanted the planner to handle the case, or have it reassigned. After the city manager confirmed that we would like the planner to take enforcement action per the job description, the two confirmed this in writing. Enforcement actions would clearly convey no benefit to the planner. The planner then called the property owners in with their attorneys and talked about the violations. In that meeting, they disclosed that they were a property owner in that same planned unit development, and were paying fees to the same condo association. And so the situation was handled through clear and open communication and disclosure.
- Responses to this scenario will vary based on the assumptions that are made. On the assumption that the planner will not be working in both positions, the discussion comes back to disclosure. It is important for the planner to talk to the current employer and let them know their intentions and ensure them that they will not work on their plan. If the planner chooses to continue with their public sector work, but privately consult on the project on the side, there may be ethical considerations to consider. If the planner chooses to accept the position, effective immediately, another set of concerns is raised. The Code of Ethics says that the planner’s primary focus is to serve the public interest. If a planner is resigning in the middle of a major project to take the other position, they need to ensure that it will be a transition that will not adversely affect the community.
- You simply cannot do it. You certainly would not want to get into such a specific recommendation. There are some communities that maintain lists of consultants that they have worked with in the past. It may be acceptable to simply hand a copy of that list to the developer. It is also acceptable to discuss multiple consultants that are familiar with the community and its plan, regulations, and opportunities.
- This is often the lifeblood of many consulting firms. There are many planning and engineering firms that perform these services for communities. However, as a planner, you must be careful to ensure that you do not write the master plan to include recommendations that are so narrowly defined that your firm is particularly well suited for the work. Such a project requires the planner to continually reflect on their motives behind the recommendation. Are they in the public interest, or simply to garner more work?