Try this thought experiment. Imagine you are the general counsel of a non-profit trade association. You are overseeing an industry lobbying effort to change a federal regulation. If you are successful your members will enjoy an economic windfall--but in your eyes, it would come at the cost of serious harm to the environment. What's your legal duty to your employer? Does it differ from your duty as a member of the bar?
Most GCs would say their legal duty is to apply their knowledge and skill on behalf of their employer. If that duty conflicts with a strongly held personal view, then a recusal or even a resignation is in order.
Try a variation of the same experiment. You are still in-house counsel to a trade association and you are active in the ABA's Tax Section and in particular the section's Exempt Organizations Committee. The committee is filing comments with the IRS on a proposed enforcement policy that would have a positive effect on your industry. However, you believe the proposal is not in the public interest. Which way do you draft the comments?
In the first scenario you are acting as an attorney on behalf of a client with whom you've formed an attorney-client relationship. Clearly your duty is to your client. In the second scenario you have no client. You are a lawyer who joined the ABA Tax Section because you believe it advances the profession. You joined the Exempt Organizations Committee because that's the place where you think you can make the greatest contribution. Is your duty here as obvious as it is in the first scenario? The answer is no, as revealed in recent commentary on this very question.
The ABA Tax Section has more than 17,000 members and files comments with multiple government agencies. Obviously these lawyer commenters have clients with interests before these agencies, but when they file comments, how do we know whether the lawyers are acting on behalf of the public interest as they see it or on behalf of their clients?
Paul Streckfus, publisher of EO Tax Journal, recently posed a related question: "Is it even possible for the ABA's Tax Section to serve both its members (and their clients) and the public?" He is so skeptical that he questions whether the Tax Section--which professes to serve the public interest--should be in the business of making these kinds of comments to government agencies at all. As a practical matter, Streckfus notes, the Tax Section more likely serves the interests of its members' clients.
The Tax Section tries to address this problem by noting in its conflicts policy that when taking policy positions, "a member should determine that he or she acts out of personal conviction rather than client interest." To me, this seemingly simple instruction is nothing more than an invitation to extended therapy sessions. "Know thyself" is not helpful as a standard for a conflicts policy. The stress of trying to decide between self and client alone could kill some lawyers.
Streckfus suggests it would be much easier for the Tax Section to avoid this "personal conviction" standard entirely by admitting that lawyers have clients who pay them and those clients might benefit when their lawyers speak to the government under the auspices of the ABA.
After all, it is what it is (as Britney Spears once said in referring to her situation). It might also increase lawyers' participation in the ABA sections as they would be freed from the "know thyself" requirement of the conflicts policy before filing section comments. Self-knowledge may be good for the soul, but for the legal profession--not so much.
Bruce D. Collins is the corporate vice president and general counsel of -C-SPAN, based in Washington, D.C.