Mike O’Neal is in the news again, this time taking heat for his taking on a lawsuit against the state of Kansas over certain financial maneuvers the state has taken to keep its finances viable. I’ve known Mike for 15 years, and I probably have disagreed with him on most political issues he’s taken positions on. But this time I think he’s getting a raw deal.

As a matter of pure politics, I think that representing the plaintiffs in a case in which they are suing the state was probably not the smartest move he could have made, but Mike is an experienced politician and he’s quite capable of making his own judgements and dealing with the fallout. From an ethical standpoint, however, I really don’t think that he’s acted badly.

I teach legal ethics and I’m very sensitive to charges of conflict of interests. Under the Kansas Rules of Professional Conduct a lawyer cannot represent two clients with conflicting interests. But that’s not the case here. O’Neal is speaker of the Kansas House, but he does not represent the House or the Legislature and, so far as I know, never has.

A lawyer also is not permitted to represent a client if his own personal interests conflict with the client’s interests. Once, again, this isn’t a problem here. Under this rule, so long as the plaintiffs do not believe that his position as a legislator and speaker interfere with his representation, then there’s no problem. So, from the perspective of legal ethics, there’s no conflict of interest problem so far as I can see.

I’m not an expert in governmental ethics, but I really don’t see any significant problem from this perspective either. The fact is that O’Neal’s clients are challenging legislation that is already law; it is not currently before the Legislature. Thus, O’Neal should not have to vote on the legislation. If O’Neal finds that a conflict arises in the future, he can simply recuse himself from any debate or vote, if he feels that is appropriate. I think that it would be quite unfair to assume that he will act inappropriately in such a situation. I see no reason to believe that he would do so.

The broad problem for attacking Speaker O’Neal for his representation of the plaintiffs in this case is that it would set a dangerous precedent for any lawyers who sit in the Kansas Legislature both currently and in the future. Ours is a part-time Legislature and the salary legislators receive is quite a bit lower than most professionals can expect to earn in practicing their professions. We want well-educated, qualified professionals in the Legislature.

Are we now to decide that no professional can represent any client who may be affected by legislative actions? If we take this position, most lawyers will never run for office. Should doctors be prohibited from sitting in the Legislature because their professional interests might be affected by legislative action? Should a teacher be barred from holding legislative office because the Legislature funds public schools?

Kansas is a small state. Such broad interpretation of conflict of interest rules would almost insure that the only people who can safely run for legislative office are either retired or unemployed. I don’t think that would be a desirable result.

So long as Kansas wants citizen legislators who are willing to work long hours for small pay, it seems inevitable to me that professionals in the Legislature may find themselves dealing with a public perception that they have conflicts of interest. But that is the price we pay for the legislative structure our state has adopted. We can avoid these problems by moving to a full-time, highly compensated Legislature, such as the congressional model, but, personally, I would dislike such a change.

In Mike O’Neal’s case, I think we must simply assume that he has acted and will act in good faith and that his representation of the plaintiffs in this challenge to a state law will have no impact on his ability to continue to serve the state in a fair and impartial manner.