Laurie Williams and Allan Zabel, two Environmental Protection Agency attorneys based in California, posted a YouTube video criticizing the Obama administration’s climate change policy, citing a Washington Post op-ed piece. When the EPA told them to either take down the video or edit out references to their work with the EPA, some organizations cried “censorship.”
It is not censorship, however. The attorneys, a married couple, are engaging in unethical conduct both as government lawyers and, arguably, as lawyers generally.
While an attorney is constitutionally allowed the right to express his or her personal or political views like any other American, and while the ethics rules explicitly note that a lawyer has no obligation to adopt the client’s beliefs, philosophies, ideology, or views of any kind, it is a basic tenet of legal ethics that the attorney also can not in any way undermine his or her client’s objectives, or harm a client’s interests during the course of a representation. This includes embarrassing a client publically or quietly undermining privately the same objective that lawyer is committed to accomplishing for the client professionally. Williams and Zabel (who are a married couple) can debate whether their video actually does any of these things: they are criticizing the U.S. government rather than the EPA, but a lawyer who works for a federal agency has the government as a client too. I think their video is a breach of loyalty and the duty of zeal, but it is a close call—not so close if one presumes that they are governed by Washington, DC ethics rules, which are stricter on this point than California’s rules.
There should be no dispute, however, about whether their video violates government ethics rules. The regulations regarding the conduct of all federal government employees, not just lawyers, forbids the use of the employee’s official position to lend influence and persuasion to a publicly expressed opinion. Because the video reveals that Williams and Zabel work for the EPA, it definitely crosses the ethical line, and is a breach of the ethics regulations. If they didn’t know that, they should have.
In fact, because of all the publicity, the video will continue to have implied credibility based on their EPA connection, even if the offending segment is removed, as the EPA has asked. Any claims by the couple that they were not trying to capitalize on their jobs as EPA lawyers to find a greater audience for their policy opinions is disingenuous—and that’s an ethics violation too. Lawyers aren’t supposed to lie.
Stop laughing.
Williams and Zabel claim they are exploring legal options. What they should do is apologize and take the video down, or resign and find a job with employers that they don’t feel they have to challenge, embarrass or exploit on YouTube.
I’d fire them.
Ethics Alarms 
I think we may have to part ways on this one, at least a little bit.
First of all, even if we assume that the “government” is the client of these two people, that government is not monolithic on this issue. What they are attacking is a piece of proposed legislation, not a law or regulation that they are charged with enforcing. They are not speaking out against the EPA, or the executive branch, or the administration itself. To the contrary, they are disagreeing with legislation that is not yet law, and is still firmly in the arena of ideas. The lawyer-client relationship, given these facts, would not seem to preclude them from making comments about the legislation, pro or con.
Second, it is debatable that they have run afoul of government employee ethics. The Office of Government Ethics (usoge.gov) construes misuse of position thus:
“Executive branch employees must not use their public office for their own or another’s private gain. Employees are not to use their position, title or any authority associated with their office to coerce or induce a benefit for themselves or others.”
I am not whatever convinced that they can be honestly accused of using their position for “private gain” or “benefit” in the context of this rule. Does that position enhance their credibility on their argument? Undoubtedly, but let’s be honest – when the President speaks, is not his credibility on any given issue enhanced by his official position? Again, undoubtedly.
Unless there is demonstrable personal gain here, I can’t see this as a problem, at least as far as the code of ethics is concerned.
What does bother me a bit is their schizophrenia on the issue, which makes me think they are not so sanguine about their own ethical position. One is that on their carbonfees.org website, they don’t identify themselves as EPA attorneys in the “About” section (although they do strongly imply it), yet they unabashedly do so in the main body of the website, in the video and on their WaPo op-ed.
I would be far more comfortable if they did not use their position to enhance their credibility, but unless some kind of personal gain can be directly attributed, it’s unlikely to run afoul of the ethics guidelines I have seen published. But as we know, doing what is “legal” does not by any means equal doing what is right (or ethical).
I also wish that they had notified their employer of their intention to identify themselves as working for the EPA, and of their intention to publish a video like that. If they did, and the EPA approved, I would say the EPA is wrong. If they did not, I would say these people should remember the Golden Rule, apologize, and make themselves right with their employer.
As an unrelated aside, I will once again whine about lack of a preview. It’s tough to proof a comment in a tiny textbox. 🙂
The profession is pretty much with you and against me on the matter of whether this kind of thing violates DC Rule 1.3, prohibiting a lawyer from “damaging a client” during the course of a relationship. I think this is a “floor vs ceiling” situation. You can get away withdoing it, but the best ethical course is not to do it.
I think “government policy” is pretty clear in this case and not in question. I also think basic loyalty dictates that you don’t try to oppose in your spare time what your client (here, the government) is trying to accomplish, using the 1st Amendment to do it. You CAN do it, legally, but it’s unethical. Would the EPA have hired the couple if they said in the interview, “Oh, by the way, we have strong views on this issue and may work against the Administration’s policies in other organizations?”
I think the violation of the government employee rules are pretty clear. The benefit doesn’t have to be money. Charley Rangel is violating the rule when he uses his letterhead to raise money for a charity that he supports. These lawyers are using the EPA to further their political objectives…isn’t that a benefit?
I also know this particular reg is very strictly enforced. Why did they mention their EPA background? Because it helped their argument be more persuasive, more likelyto accomplish their goals. For activists, that kind of result is MORE desirable than money.
Absolutely they should have asked permission, for the Post op-ed and the video. And it would have been denied.
That’s why they didn’t ask, don’t you think?
Word Press doesn’t seem to have a draft feature, or at least I haven’t found it. Still looking…
Well, okay but …
In the first place, they aren’t working against any administration, they are working against a proposed law. There is one heck of a difference. It is true that the administration may support the legislation, but opposing the legislation is not necessarily opposing the administration. They are not the same thing.
And I would point out that the same people have been there, if memory serves, over three separate administrations (20+years) with at least two divergent viewpoints on the matter the proposed legislation seeks to address. Would this view have been okay to express (absent the disclosure of their employer) in the Bush administration just because they could have been on the same page as the Bush EPA?
As far as personal benefit is concerned, I concede that it is possible for them to achieve some political benefit out of it, except for the fact that they seem to oppose the legislation less for political reasons than for reasons of public policy. It isn’t as if they have designs on a Senate or House run, it seems clear at this point that they merely disagree with legislation that is not even before the executive branch yet. But still, I think that using the EPA’s name without their permission is an ethics faux pas.
The EPA may well support the legislation, and it’s fine to require their employees to grab an oar at work, but it’s a bridge too far to ask them to shut up away from work just because they are not on the same page this particular year. I don’t really think the EPA is even asking them to do that, I think they just don’t want an EPA imprimatur on their credentials, which is certainly their right.
So while I concur that they should not have disclosed their affiliation with their employer without permission, and that was unethical, I cannot say the act of speaking out in opposition to legislation their employer might like is disloyal — it isn’t. Their loyalty rightly belongs with the government, but the government isn’t just the administration, and the government as a whole by no means shares a monolithic view of the issue.
I would also point out that according to the article you linked, the EPA initially granted permission for the video, then withdrew it when they saw the WaPo op-ed. I’m not sure what I think about that, but I still think the onus was on them to make it right, even if I question the actions of the EPA in that scenario. If permission was withdrawn, the EPA association should have been left out of the video.
P.S. We’ll get by without the preview just fine, I was just kidding. It’s always better to focus on content than technology, anyway. 🙂
The profession is pretty much with you and against me on the matter of whether this kind of thing violates DC Rule 1.3, prohibiting a lawyer from “damaging a client” during the course of a relationship. I think this is a “floor vs ceiling” situation. You can get away withdoing it, but the best ethical course is not to do it.
I think “government policy” is pretty clear in this case and not in question. I also think basic loyalty dictates that you don’t try to oppose in your spare time what your client (here, the government) is trying to accomplish, using the 1st Amendment to do it. You CAN do it, legally, but it’s unethical. Would the EPA have hired the couple if they said in the interview, “Oh, by the way, we have strong views on this issue and may work against the Administration’s policies in other organizations?”
I think the violation of the government employee rules are pretty clear. The benefit doesn’t have to be money. Charley Rangel is violating the rule when he uses his letterhead to raise money for a charity that he supports. These lawyers are using the EPA to further their political objectives…isn’t that a benefit?
I also know this particular reg is very strictly enforced. Why did they mention their EPA background? Because it helped their argument be more persuasive, more likelyto accomplish their goals. For activists, that kind of result is MORE desirable than money.
Absolutely they should have asked permission, for the Post op-ed and the video. And it would have been denied.
That’s why they didn’t ask, don’t you think?
Word Press doesn’t seem to have a draft feature, or at least I haven’t found it. Still looking…