If you are a state employee, what responsibility does your employer have to provide legal council when you are acting on its behalf?

Question

This question came up during public records training at a public organization in Washington state, but I am interested in the general case. That said, I've provided the specific hypothetical about public records at the end in case it is useful for understanding the question.

Suppose you are an employee of a state-run organization (but not a police officer), and your superiors instruct you to perform activity X. Performing X is a routine activity that your organization is legally required to perform, but suppose that in the specific instance of this activity you realize that one of the steps in performing X is likely itself illegal. However, you are not a lawyer, so you are not certain whether the law compels you to perform X or compels you not to perform X. For the sake of argument, let us suppose that your superiors (who themselves may or may not know whether X is legal) are aware of the problem but refuse to provide instructions more specific than that you must both obey the law.

In such a situation, are your superiors acting lawfully? If you act in good faith, is there a way to know if you are liable, or is this strictly dependent on the specifics of X (and if so, what is important to know about X)?

(I'm interested in the general case for this question, not the specific laws about public records, which may have a specific carve-out regarding liability. But in case it help to understand the abstractions: the question involved a hypothetical where a public records were stored on a private server by a past employee, and a public records request now requires you to produce them; your superiors tell you that the records are legally responsive and that producing them is part of your job, which is probably all true, but they won't specifically tell you to get them or not to get them, and you suspect that getting them would be illegal.)

Answer 1

I don't know about the situation in Washington specifically, but I believe most states have laws that require a County prosecutor or a city law director or a village solicitor or whoever to provide legal advice to the employees of whatever jurisdiction employees them.

I doubt, though, that the law in Washington or anywhere else gets deep enough into the details to say whether you would be entitled to any more advice than what you've described. The law is complicated and complex, and the legislatures are probably reluctant to get into the business of specifying exactly how legal advice ought to be dispensed.

The situation would be different if things progressed beyond the point you're talking about and into litigation over the conduct at issue. I don't know whether the state would be required to provide a defense if the employee was charged criminally, but Washington law does generally require that the jurisdiction defend and indemnify employees who are acting in good faith and within the scope of their employment. RCW 4.96.041

Answer 2

You must follow the lawful and reasonable directions of your employer

This is a requirement that applies to all employment contracts irrespective of if your employer is in the public or private sector.

If you have doubts about the lawfulness of an instruction, then that is a strong basis for arguing that it is not reasonable to follow it without further clarification. That is, if you refused to follow the direction without further direction, you couldn’t be disciplined for that refusal.

However, let’s assume that you got legal advice that says what you are to do is probably legal; now it’s probably no longer reasonable to refuse. But, if the legal advice is wrong and it’s still illegal a) you still can’t legally do it and b) it would still be legitimate for you to refuse an unlawful direction.

Notwithstanding, you remain legally responsible for your acts and omissions - there is no general “just following orders” defence.

If you do it, and it’s a crime, you can still be prosecuted even if you had legal advice saying it wasn’t. Whether you would be and whether you would be convicted will depend on the exact elements of the crime and what defences are available- for some crimes, acting reasonably (which you are) is a defence, for others, it isn’t.

If it gives someone grounds to sue they can sue you and, through vicarious liability, your employer. Some jurisdictions protect employees from such lawsuits and even where they don’t such lawsuits are rare. Again the exact elements of the wrong will determine if there is liability.