When Government Lawyers Forget Who Their Client Is

Government lawyers occupy a unique place in the legal system. Unlike private attorneys whose duty is to advance the interests of a single client, municipal lawyers represent institutions that belong to the public. Their advice shapes how towns operate, how laws are followed, and how transparency obligations are honored.

When a municipality hires outside counsel, those attorneys are not simply advocates. They are also custodians of the legal boundaries that protect the public’s right to know how government works.

That is why the settlement agreement at the center of the Newmarket controversy deserves careful scrutiny — not only for what the Town of Newmarket did, but for the role played by its outside counsel, the New Hampshire law firm Donahue, Tucker & Ciandella (DTC).

The agreement required a citizen to permanently give up his ability to file requests under the state’s Right-to-Know law.

In exchange, the town paid money.

This clause is extraordinary.

New Hampshire’s transparency statute — RSA 91-A — exists to guarantee public oversight of government activity. The law declares that public access to governmental records and meetings is essential to maintaining a democratic society.

These rights are not private favors granted by local officials. They are statutory protections created by the legislature for the benefit of the public.

Yet the settlement drafted and defended by attorneys at Donahue, Tucker & Ciandella attempted to do something remarkable: eliminate a citizen’s ability to use the transparency law against the town forever.

When a government lawyer recommends such a provision, serious questions arise.

Municipal attorneys know the purpose of the Right-to-Know statute. They advise public officials daily on how to comply with open-government requirements. They know that public records laws exist precisely because citizens sometimes challenge government conduct.

That knowledge carries responsibility.

Transparency laws were enacted to ensure that citizens — including critics — can inspect government records without fear of retaliation or restriction.

If municipalities can negotiate contracts that silence those requests, the oversight function of the statute begins to erode.

The question raised by the Newmarket settlement is therefore not merely whether the agreement was enforceable in court.

It is whether government lawyers should ever recommend such agreements in the first place.

When attorneys representing public institutions draft contracts restricting transparency rights, the public has every reason to ask whether the spirit of open government is being honored.