Legal Ethics Opinion #1566

Zealous Representation--Duty to Report: Refusal of Local
Government attorney to Comply With Freedom of Information Act
Request 

You have presented a hypothetical situation in which Taxpayer,
resident in County A, has appealed the assessed value on his home
to the Board of Real Estate Review and Equalization ("Board") of
County A.  Pursuant to 58.1-3386 of the Code of Virginia
("Code"), Taxpayer has asked Board to subpoena witnesses to offer
evidence at the hearing.  Taxpayer is informed that it is not the
"policy" of the Board to subpoena witnesses. Taxpayer
continuously asks, in writing, how Board can fulfill its
statutory charge to hear the case of Taxpayer and refuse to
subpoena the witnesses Taxpayer needs to present his case.

Approximately four months later, Taxpayer asks in writing,
pursuant to the Freedom of Information Act ("FOIA"), if Board has
ever issued a subpoena and for a copy of all policies and
procedures under which Board operates.  One day after the written
request is made, Taxpayer is informed that there are no records
relating to the issuance of any subpoena and is provided with a
copy of the policies and procedures of Board.  You state that the 
policies and procedures contained no reference to a policy
concerning subpoenae.

Approximately seven months later, Taxpayer is advised by the
Assistant Real Estate Director of Board that it is not Board's
"policy" to subpoena witnesses.  Shortly thereafter, Taxpayer
questions that policy, in response to which Attorney X of County
A states:

     The Board's policy concerning use of its authority to
     summons witnesses has been explained to you both last
     year and this year in previous correspondence. I find
     no violation of law or procedure in this policy.

Approximately three weeks later, Taxpayer asks Attorney X to
provide the date Board adopted its "policy" and a copy of the
minutes of that meeting.  Taxpayer prompts Attorney X for a
response to that request twice in the next month.   You state
that, three weeks after the last prompt, Attorney X responds, but
does not provide the documents originally requested. 

Approximately one month later, Taxpayer reminds Attorney X that
the explicit FOIA request has not been fulfilled, to which
Attorney X informs Taxpayer that he may inspect the records of
Board or he may pay $1,450 for a copy of all 38 years of records
of Board. Taxpayer then advises Attorney X that that response is
not in compliance with the FOIA, to which Taxpayer states as
follows:

     The adoption of the "policy" either predates my dealing
     with the Board or does not exist.  I believe it is the
     latter and that you are therefore caught with your
     earlier statements.  I am stating that I believe you
     have been intentionally untruthful to me.  You are
     invited to prove me wrong.  You can do so by telling me
     the date of the adoption of the "policy" and to send me
     those minutes. Further, your response is incorrect as a
     matter of law.  Re-read Section A.  The minutes
     allegedly exist and you have not been asked to abstract
     or summarize records or to convert records into another
     form.  A meeting is a discrete, discernible,
     segregatable event.  Section 2.1-342.A provides that
     "any reasonably segregatable portion of an official
     record shall be provided to any person requesting the
     record after the deletion of the exempt portion."  Quit
     wasting my time.  Provide me with the minutes of the
     meeting at which the "policy" was adopted or confirm
     that such records do not exist.

Shortly thereafter, Attorney Y, supervisor of Attorney X, advises
Taxpayer that Attorney X has not been intentionally untruthful. 
Attorney Y advises Taxpayer, who is a licensed Virginia lawyer,
that a lawyer should be temperate and dignified and that Taxpayer
should cease making ad hominem attacks on Attorney X.

In response to Attorney Y, Taxpayer points out that EC 1-5 of the
Virginia Code of Professional Responsibility also encourages
obedience to the law.  Taxpayer specifically demands compliance
with the FOIA as to the "policy" and that the minutes at which
the "policy" was adopted be provided.  Taxpayer reiterates that
demand to Attorney Y six times during the succeeding eight weeks. 
At the conclusion of that time period, Attorney Y states "... in
my opinion, the County has complied with your FOIA request." 
Shortly thereafter, Taxpayer, by certified mail, advises Attorney
Y as follows:

     For the first time, you have asserted your "opinion"
     that the County has complied with my FOIA request. 
     Your "opinion" is not correct and if you do not already
     know that, you should.  You have not been asked to
     "abstract" or "summarize" a record.  The record,
     minutes of each meeting, exists.  You have asserted the
     existence of a "policy".  Therefore, you must be aware
     that the policy has been adopted.  Therefore, you
     should be able to provide me with the minutes of the
     meeting at which the policy was adopted.  You have not
     been asked to "create" a record.  Additionally, FOIA is
     full of language about the intent of the Act and about
     cooperation by the governmental body.  Further, you
     have previously provided me with minutes of meetings. 
     In short, I believe no reasonable person would believe
     your "opinion" has been arrived at in good faith. 
     Therefore, I believe your "opinion" is yet another
     deliberate deception as you know it is not correct.  It
     is one thing to represent the County zealously; it
     quite another to ignore mandatory language in the law
     and to pretend you are in compliance.  Please comply
     with FOIA.

You state that the above certified mailing was received by
Attorney Y and no response had been received within six weeks. 
     
You have asked the committee to opine under the facts of the
inquiry, (1) whether Attorneys X and Y have violated DR 7-
102(A)(3) by failing to produce documents covered by FOIA; (2)
whether, if the "policy" does not exist, Attorney X or Attorney Y
has violated DR 7-102(A)(5); (3) whether, if either DR 7-
102(A)(3) or (5) has been violated, Taxpayer, as a licensed
Virginia lawyer, has a duty to report such misconduct pursuant to
DR 1-103; and (4) whether, if Taxpayer suspects a violation of DR
7-102(A) but cannot prove it because the County refuses to comply
with FOIA, Taxpayer must (i) complain to the Bar about Attorneys
X and Y, or (ii) bring a FOIA action in County A courts to compel
compliance with FOIA to determine the veracity of Attorneys X and
Y.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 1-103(A), 7-102(A)(3) and 7-102(A)(5) which
state, respectively, that a lawyer shall not conceal or knowingly
fail to disclose that which he is required by law to reveal or
knowingly make a false statement of law or fact; and Disciplinary
Rule 1-103(A) which provides that a lawyer having information
indicating that another lawyer has committed a violation of the
Disciplinary Rules that raises a substantial question as to that
lawyer's honesty, trustworthiness, or fitness to practice law in
other respects shall report such information to the appropriate
professional authority. 

The committee responds relative to your inquiries as follows:

1.   As to whether Attorneys X and Y have violated DR 7-
     102(A)(3), the committee is of the opinion that Attorneys X
     and Y responded sufficiently on September 9, 1992, April 12,
     1993, and September 17, 1993 to Taxpayer's question as to
     the issuance of subpoenae. The facts indicate that on
     September 9, 1992, Board informed Taxpayer that there were
     no records relating to the issuance of any subpoenae and
     provided him with a copy of the policies and procedures of
     the Board.  The committee believes, then, that Attorneys X
     and Y have not violated DR 7-102(A)(3).

2.   Regarding your second inquiry, the committee believes that
     Taxpayer may have adopted an excessively narrow
     interpretation of "policy".  Black's Law Dictionary, 5th
     Edition, defines "policy" as "the general principles by
     which a government is guided in its management of public
     affairs, or the legislature in its measures."   There is no
     reference to "policy" being defined in terms of an official
     action memorialized in written form. The committee
     recognizes that while some "policies" may be written, others
     may more simply be "custom" or "practice" and, thus, not in
     writing.

     The facts indicate that the policies and procedures,
     provided to Taxpayer by the Board, contained no reference to
     a policy concerning subpoenae.  The committee is of the
     opinion that even if the "policy" has not been reduced to
     print, it may still exist.  The committee believes, then,
     that Attorneys X and Y have not violated DR 7-102(A)(5),
     i.e., they have not knowingly made a false statement of law
     or fact.       

3.   In the committee's view, therefore, your third inquiry,
     regarding the obligation to report misconduct under DR 1-
     103, has been rendered moot, based upon the committee's
     conclusion that no violation of DR 7-l02(A)(3) and (5) has
     occurred. 

4.   Finally, you inquire whether Taxpayer must file a complaint
     with the Bar, or file a FOIA action in County A, if he
     suspects, but is unable to prove, a violation of DR 7-102(A)
     by Attorneys X and Y.

     The committee opines that Taxpayer is obligated to report
     misconduct, under DR 1-103(A), if he possesses information,
     based on a substantial degree of certainty and not on rumor
     or suspicion, that another lawyer has committed a violation
     of the Disciplinary Rules that raises a substantial question
     as to that lawyer's honesty, trustworthiness, or fitness to
     practice law in other respects. [emphasis added]   Since
     Taxpayer's information is based on suspicion, the obligation
     to report misconduct does not arise. See LEOs #1338, #1545

     The question as to whether Taxpayer must bring a FOIA action
     in County A, if he suspects but is unable to prove a
     violation by Attorneys X and Y, raises a legal issue the
     determination of which is beyond the purview of the
     committee.
 
Committee Opinion
December 14, 1993

Affirmed
April 11, 1994

Reaffirmed
July 20, 1994