Item C: City Legal Services - Who's the Client?

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evaluating the manager, and ultimately on the process for terminating the relationship. In that situation, the City Charter granted to the council the power to supervise, hire and fire the city manager. Our client – the City of Eugene – can only act, like any other public or private corporation - through its officials and employees. When it is the council that is acting (as in the situation just described), we work with the council, rather than the manager. Regardless of whether we are working with the City Council, City Manager or City staff, when our legal opinion is requested, our duty is to provide the most accurate opinion that we can. At times, the law is clear and we will state what the law requires. At other times, the law is not clear; in that situation, we will identify how we believe a court would rule on the matter and what we believe is the likelihood that the court will agree with our opinion. When our opinion is requested, we provide just that: our opinion. Neither City staff nor the City Manager (and, as discussed below, nor the City Council) can direct what our opinion will be. It is important to remember that attorneys have at least two very different roles in our work for clients: (1) legal advisor; and (2) legal advocate. In our role as legal advisor, our task is to inform our client of our opinion on, for example, what a law means or how to accomplish an objective in a lawful manner. In our role as advocate, our role is to persuade others (often a judge) that our client’s position is correct or that our client’s action was lawful. Thus, while a client can instruct an attorney as to a legal position to take in litigation (unless the attorney believes that such a legal position is frivolous, in which case the Rules of Professional Conduct prohibit the attorney from taking that position), when a client seeks legal advice, the attorney is supposed to render a legal opinion based on the attorney’s best professional judgment about what the law is, rather than on the client’s instruction as to what the legal opinion should be. At the December 13, 2006, City Council meeting, Councilor Bettman objected to one of the legal opinions our office issued to the council related to the police auditor’s office. Councilor Bettman stated that the city attorney memorandum (related to the potential of personal liability) was based on what the manager thought the Charter amendment meant, rather than on how the council interpreted the Charter amendment. (Councilor Bettman’s actual comments can be found in Attachment A.) Those comments appear to assume that when we issued our opinion, we were acting in our role as “advocate,” rather than in our role as “advisor.” The opinion we issued was requested by City Councilors as to the possibility of personal liability. Our duty in that situation was to give our opinion as to what we believed a court would find with respect to that question. If a court would defer to the council’s interpretation of the earlier-adopted Charter amendment, then it would have been appropriate for us to do the same; our task, after all, was to inform the council as to what we believe a court would conclude. However, a court will not defer to the council’s interpretation of the Charter, any more than a court will defer to the legislature’s interpretation of the Oregon Constitution. The question that must be answered, according to numerous decisions of no the appellate courts, is what the voters intended when they adopted the amendment. The question is t what the council (or the legislature) intended when the measure was referred, or how the council (or legislature) would like the amendment to be interpreted. If the issue had arisen under a different set of circumstances – for example, a suit against the City – our role would have been as an advocate. As an advocate, we would take positions in court consistent with the adopted City Council policy. However, we were not in court. Instead, members of the council wanted to know what their personal liability might be. In rendering our opinions, we did not consult L:\CMO\2007 Council Agendas\M070409\S070409C.doc