Duties and Responsibilities of City Attorneys


Aug 12th, 2013
by Tyler Younts

Duties and Responsibilities of City Attorneys

The North Carolina Institute for Constitutional Law[1]

www.ncicl.org

August 12, 2013

From time to time the North Carolina Institute for Constitutional Law receives inquiries asking about the duties and responsibilities of city or county[2] attorneys, particularly in the context of attorney-client privilege and the North Carolina’s Open Meetings Law (OML). This memorandum of law explains what the duties and allegiances of a city attorney are, and are not, by exploring the interrelationship between the attorney’s duty of confidentiality, the duty to report wrongdoing, and the OML.  It argues that in some cases, a city attorney has an obligation to report wrongdoing to the voting public. 

Job Description and Duties of City Attorneys

The General Statutes provide only a brief job description for city attorneys: “The council shall appoint a city attorney to serve at its pleasure and to be its legal advisor.”  §160A-173; see also G.S. §153A-114 (county attorney statute).  Thus, by statute, city attorneys are to be appointed by the city council, be a legal advisor, and serve at the pleasure of the council—meaning they are at-will employees that can be terminated at any time.  City attorneys have the same ethical obligations as attorneys generally, as set out in the North Carolina Rules of Professional Conduct (RPC or Rules), which include the duty to maintain confidentiality.  However, he or she may be allowed, and in some cases required, by the rules to report evidence of illegal activity by city officials or employees, as explained below.

Who does a City Attorney Represent?

            A city attorney represents, and therefore owes certain duties to, the city.  Rule 1.13(a) states, “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”  In the same way that a corporate attorney “owes his allegiance to the corporation and not to an officer or director, so a Town Attorney owes his allegiance to the Town and not specifically to particular employees of the Town.”  See CPR 154 (1978) (internal citation omitted). 

The Duty of Confidentiality

All lawyers owe a duty to their clients to keep certain client information and communications confidential.  Rule 1.6(a) establishes the duty of confidentiality stating: “A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”  Paragraph (b) permits, but does not require, a lawyer to breach confidentiality in limited circumstances. For example, a lawyer may breach confidientiality when he or she “reasonably believes [it to be] necessary” in order to prevent “reasonably certain death or bodily harm” or to “prevent, mitigate, or rectify” a “criminal or fraudulent act” by the client when the attorney’s services were used to perpetrate the fraud.  Rule 1.6(b).

The NC Open Meetings Law (OML) and Public Records Act

The duty of confidentiality for city attorneys often arises in the context of City Council meetings—particularly closed sessions, which by their very nature require some degree of confidentiality.  The OML requires that all meetings of public bodies be open to the public.  G.S. § 143-318.10(a).  Closed sessions are only permitted for a few purposes that are specifically listed by statute.  These include, for example, consulting with an attorney or discussing economic development incentives or public safety contingency plans.  G.S. § 143-318.11.  A motion to enter closed session must be made and voted on in an open meeting and must state the statutory justification for the closed session. G.S. § 143-318.11(c); Knight v. Higgs, 189 N.C. App. 696 (2008).  Minutes must be kept for both open meetings and closed sessions, and general accounts are to be written for closed sessions “so that a person not in attendance would have a reasonable understanding of what transpired.”  G.S. § 143-318.10(e). See Boney Publrs Inc. v. Burlington City Council, 151 N.C. App. 651 (2002).  Further, minutes and general accounts are public records and may only be “withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.” G.S. § 143-318.10(e).  Confidential communications within the attorney-client relationship do not become public records subject to public records requests until three years after they are made.  G.S. § 132-1.1(a). 

Required Reporting for Attorneys Representing Organizational Clients

While an attorney would be allowed under Rule 1.6(b) to disclose confidential information under limited circumstances, for attorney’s representing clients that are organizations, reporting unlawful actions can be mandatory.  Rule 1.13(b) requires attorneys representing organizational clients to report illegal activity to higher authorities within the organization under certain circumstances.  The rule states:  

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. 

 

Rule 1.13(b)(emphasis added).  Therefore, if a city attorney becomes aware of “a violation of law” committed or planned by a city official or employee that would do damage to the city, he or she “shall proceed as is reasonably necessary.”  Rule 1.13(b).  What does it mean to proceed as is reasonably necessary?  The rule explains: “Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to the highest authority in the organization,” up to and including, if necessary, “the highest authority that can act on behalf of the organization as determined by applicable law.”  Rule 1.13(b)(emphasis added).

Who is the highest authority that can act on behalf of a city?  While the North Carolina Constitution expresses the ultimate sovereignty of the people when it states that “[a]ll political power is vested in and derived from the people,” N.C. Const. art. I, sec. 2, the people have delegated most of this power to their representatives in state and local government.  So, for most matters, the highest authority that can act on behalf of the city will ordinarily be the city council.  Comment 5 to Rule 1.13 explains, “The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body.” In the local government setting, the city council would be that governing body.  Christopher B. McLaughlin, “The Intersection of the First Amendment and Professional Ethics for Government Attorneys,” UNC School of Government at p. 13.[3]  But will the city council always be the highest authority that can act on behalf of the organization?  Comment 5 to Rule 1.13 states that “applicable law may prescribe that under certain conditions the highest authority reposes elsewhere . . . .”  Indeed, the people have reserved the authority and act on behalf of the body politic on several issues by virtue of required voter approval on various political questions.  At the local government level, North Carolina voters have the right to vote on several issues, including, but not limited to:

·      Whether to permit local alcohol sales. G.S. § 18B-600 et seq.

·      Various local sales & use taxes. § 105-465; § 105-484; § 105-498; § 105-506; § 105-511.2; § 105-537.

·      Supplemental school taxes. § 115C-501.

·      Issuance of general obligation bonds. § 159-49. 

·      Involuntary annexation. § 160A-58.64. 

·      Recall elections to remove elected officials (limited by local acts to certain cities).[4]

 

On these and other questions that require voter approval, the voters would be the highest authority that can act on behalf of the organization.  Thus, there is a strong case that knowledge of unlawful acts or planned actions related to issues the voters have the right to vote on would obligate a city attorney to report that information to the voting public, as mandated by Rule 1.13(b).

Conclusion

While city attorneys certainly have a duty to maintain confidentiality, they also have a duty to disclose wrongdoing in some situations.  In particular, the city attorney has a duty to report knowledge of wrongdoing all the way to the highest authority that can act on behalf of the city.  While this is usually the city council, on issues that require voter approval, the voters themselves are that highest authority.  Therefore, in some cases, a city attorney may have a duty to report wrongdoing to the voting public. 



[1] For more information, please contact staff attorney Tyler Younts at 919-838-5313 or tyounts@ncicl.org.

[2] For convenience, this memorandum refers only to city attorneys, although the law and argument applies with equal force to county attorneys. 

[3] http://canons.sog.unc.edu/wp-content/uploads/2010/10/Microsoft-Word-manuscript_mclaughlin_workplace_and_constitution1.pdf.

[4] For more on referendums in North Carolina see Robert Joyce, “Limited Room for Referendums in North Carolina,” NC Local Government Law Blog, UNC School of Government, http://canons.sog.unc.edu/?p=6426.