This is not a detailed discussion of the substantive areas of law that come into play in the representation of local governments. Rather, it presents an introduction to the general role and functions of the County Attorneys, County Solicitors, City Solicitors, City Attorneys, and Town Attorneys who primarily are responsible for advising and representing the 23 counties, Baltimore City, the 157 municipalities in Maryland, and the instrumentalities of these local governments, on a day to day basis. These attorneys are referred to in the remainder of this article generally as "local government attorneys."

General Overview

Although local governments are municipal "corporations", the representation of this type of client bears little resemblance to the representation of most businesses. Local government attorneys operate in an arena imbued with the public interest. Although the "client" of the local government attorney usually is the government entity (See, Maryland Rules of Professional Conduct, Rule 1.13(a); 82 Opinions of the Attorney General ____ (1997) [Opinion No. 97-028 (December 16, 1997)], the local government attorney must develop and maintain relationships with the many officials responsible for setting and implementing the policy of the government, the governing council or commission, the chief elected official, the chief administrative official, department heads, employees and members of boards and commissions. Often the local government attorney is called upon to practice in an environment characterized by political urgency and conflicting political views and agendas. This can result in the local government attorney engaging in a delicate balancing act between maintaining objectivity and preserving job security.

The base of legal knowledge required for a local government attorney to provide competent and effective representation has grown exponentially in the past 25 years, mandating a commitment to continuing education, almost on a day to day basis. When I began my career representing local governments as an Assistant in the Anne Arundel County Solicitors Office nearly 25 years ago, one of the office "old timers" said to me "All you need to remember is Harlan v. Town of Bel Air" 178 Md. 260 (1940) (involving the dedication and acceptance of roads to public use). Although this statement was an exaggeration even then, it reflected the relative simplicity of the issues facing local government attorneys. Local governments worried about little more than providing essential public services, and attorneys had to ensure that local charters and relatively few State and local laws were complied with.

Since then local governments and their attorneys have had to deal with the effects of a literal explosion of both procedural and substantive mandates and restrictions from both Congress and the General Assembly that affect every aspect of the day to day operations of local government. As mere examples, these include public meetings, public ethics and public information acts; Law Enforcement Officers Bill of Rights; environmental protection and growth management initiatives; Section 1983 and related federal civil rights laws; Title VII, Americans With Disabilities Act, Age Discrimination in Employment Act and similar anti-discrimination laws; Family and Medical Leave Act; Fair Labor Standards Act; Telecommunications Act; and on and on and on!

The local attorney who does not keep abreast of the latest developments does so at his or her peril. Attorneys who do not practice government law generally will not held liable to third parties for erroneous advice given to their clients. However, local government attorneys may be held liable under 42 U.S.C. § 1983 to third parties whose civil rights have been violated as a result of advice given by the local government attorney that was inconsistent with clearly established statutory or constitutional rights of which a reasonable person should have known. Smith v. Montgomery County, Maryland, 573 F.Supp. 604 (D. Md. 1983) (where the Montgomery County Attorney was held liable for advice that was contrary to certain principles decided by the Fourth Circuit only six weeks earlier).

Appointment of the Local Government Attorney

Every county and municipality is authorized, and Charter or local law requires many, to have a local government attorney. Even in the absence of express authority to appoint a local government attorney, local governments have the implied power to employ counsel to render services in matters of proper government interest. Jackson v. Cosby, 179 Md. 671 (1941). Unlike the Attorney General and State's Attorneys who are elected by the voters, local government attorneys are political appointees. They are appointed, and subject to removal, by local elected officials. The method of appointment varies by jurisdiction. In those counties governed by a board of county commissioners, the local attorney is appointed by resolution of the county commissioners. In the City of Baltimore and in Anne Arundel, Baltimore, Howard, Prince George's and Montgomery Counties the local government attorney is appointed by the Mayor or County Executive, subject to approval or confirmation by the local council. In Talbot and Wicomico Counties, which do not have an elected executive, the County Council appoints the local government attorney.

Harford County is unique in that its Charter provides for two distinct local government attorneys, one for the executive branch of the County government and another to advise and represent the County Council. These attorneys are appointed by the County Executive and County Council, respectively. The charters of Anne Arundel, Baltimore, Howard and Prince George's Counties also authorize their respective County Councils to retain attorneys with various degrees of authority to assist in the drafting of legislation and to advise and represent those bodies in the performance of their legislative duties. Notwithstanding that Baltimore City and Montgomery Counties also have distinct legislative and executive branches, their charters do not provide for separate attorneys for the legislative branches.

Municipal charters spell out a variety of methods for the appointment of local government attorneys for cities and towns. Municipal local government attorneys may be appointed by the mayor, by the mayor with the approval of the local council, or exclusively by the Council, as specified in the charter of each city and town.

The nature of the local government attorney and the attorney's staff usually parallels the size and complexity of the respective political subdivisions and their governments. The Charters of the City of Baltimore and all 8 charter counties establish government offices or departments charged with the responsibility of providing legal services for the government. Whether known as the Department of Law, Office of Law, County Attorney's Office, or the like, each is headed and administered by the local government attorney. Except in Talbot and Wicomico Counties these offices or departments are staffed by "in-house" attorneys, Baltimore City being the largest with approximately 70 attorneys serving the City's legal needs. In Talbot and Wicomico Counties the local government attorneys serve on a contractual "part-time" basis. The local government attorneys in non-charter counties also are "part-time", except in Carroll, Calvert, Charles, Frederick, St. Mary's and Washington Counties which in recent years also have created full time "in-house" legal departments. Municipalities follow a similar pattern as the counties. Two of the State's largest cities, Frederick and Annapolis, have full-time in-house local government attorneys, while attorneys serving the rest of Maryland's cities and towns do so on a part-time basis. Of those local government attorneys who do not serve full-time, some conduct their government business from offices provided for them within the local government office building, while others use their private practice offices as bases of operations.

Duties of the Local Government Attorney

Except in several limited situations local, rather than State, law regulates the duties of local government attorneys. Some county and municipal charters and codes of ordinances provide varying degrees of enumeration of the scope of the duties and responsibilities of the local government attorney. e.g., Anne Arundel County Charter, 525; Baltimore City Charter, Article VII, 24; Carroll County Code, 3-15A; Howard County Charter, 405; City of Annapolis Charter, Article VI, 5; Town of Easton Charter, Article VIII, 3; City of Frederick Charter, Article VII, 124. Others say little, if anything, more than "the local government attorney is the chief legal advisor to the jurisdiction and shall perform such duties and responsibilities as may be required." In some of the rural counties governed by a commissioner form of government, such as Allegany, Calvert, Caroline, Cecil, Charles, Kent, St, Mary's, Somerset, Washington and Worcester Counties, the local county codes do not even contain a reference to a local government attorney, much less specify the duties of such attorney.

Keys to the Success and Effectiveness of a Local Government Attorney

A local government attorney takes on a responsibility to the public at large in addition to the attorney's professional obligations to the government "client." Although there is no uniform set of qualifications and criteria that define a "good" local government attorney, my nearly 25 years of experience as a local government attorney, and working with and against other local government attorneys, suggest the hallmarks of an effective local government attorney. A successful local government attorney will have many, if not all, of the following characteristics:

- An absence of conflicts of interest. The local government attorney's utmost loyalty must be to the government client. It goes without saying that the attorney should avoid even the appearance of a conflict of interest. This occasionally becomes difficult in less populated areas of the State where the number of attorneys are few, attorneys wear many hats, and the paths of private and public clients cross. (See, e.g., Carroll County Ethics Commission v. Lennon, 119 Md. App. 49 (1998)). In some cases it may be necessary or desirable for the local government to select an attorney who lives and practices in another area in order to avoid the potential for conflicts of interests of local attorneys.

- Personal integrity. A local government attorney has many difficult and politically sensitive issues to confront in performing the job. Having a local official question the attorney's honesty or loyalty to the job should not be one of them. The attorney needs to have the confidence of those officials to be successful.

- A working knowledge of the many facets of law that the attorney will encounter in the day to day representation of the local government. The representation of local government requires familiarity with numerous bodies of federal, State and local constitutions, laws and regulations that may affect local government operations. Because many of these areas of the law are constantly evolving, the local government attorney must have a commitment to keeping informed about new laws and judicial decisions affecting the operations of the government.

- A positive approach to problem solving. Local government attorneys often are characterized as "no men" (or women). The job of the local government attorney is to protect the interests of the government and to ensure that business is conducted in accordance with controlling law and procedure. Because of this, local government attorneys often must tell officials that the law will not allow them to accomplish what they want to do. However, in addition to delivering the "bad news." the attorney should attempt to be constructive and creative, and be able to evaluate alternative ways to help officials accomplish desired policy objectives.

- An ability to remain independent and objective. As a counselor, the local government attorney's job is to provide the soundest legal advice possible. This means preventing his or her judgment from being clouded by the political considerations of government officials and by the attorney's personal views on policy matters. With few exceptions, the attorney is the legal advisor to the government, not the policy maker. By taking sides in disputes over the wisdom of competing policies, the attorney risks straining the attorney's credibility with those officials on the other side of the policy dispute. An attorney should confine advice on the wisdom of public policy to those situations when there are potential legal implications associated with the adoption or implementation of the policy.

- Good personal relations skills. The effectiveness of the attorney often depends upon the ability to develop and cultivate positive working relationships with local government officials and employees, the public and, occasionally, the press.

- A desire and dedication to be a part of the local government team, rather than viewing the county, city or town as just another client. The attorney should have a willingness to develop an understanding and appreciation of the workings of the entire local government and be keenly responsive to the needs of local government officials. The attorney should be energized by the opportunity to participate directly in the American democratic tradition and to be involved in the government's efforts to improve the quality of life for its constituents

- A pro-active approach to the practice of law. In today's litigious society local governments must focus on risk management and avoidance. The local government attorney should educate elected officials, department heads and local government employees and appointees about liability exposures and help identify and prevent potential risks before they develop, rather than being the fireman trying to put out the fire as it burns out of control.

- An ability to refrain from participating in local election politics. The local government attorney works for the government, not for individual elected officials. Participating in local election politics is a sure way for the attorney to have a short-lived career if the attorney has supported the "wrong" candidate.

Conclusion