Page 131 - Impact: Collected Essays on Expanding Access to Justice

Significant scholarship has been written on whether government attorneys have a “justice- seeking” role, particularly when defending civil litigation .6 This essay focuses on the question of how local government attorneys promote justice when counseling local government officials, regardless of whether litigation is present .
Local government attorneys can work in conjunction with local policymakers to promote policies that support the legal rights of individuals, and help to diagnose and to correct situations in which government has failed to meet its legal obligations . This counseling work can prevent litigation by ensuring that local policies and procedures are consistent with local agencies’ legal obligations and protect local constituents’ rights . Effective counseling can also occur while litigation is pending, and help to address issues raised by the litigation and contribute to an appropriate resolution of the legal proceeding .
Part I of this essay discusses the ethical rules for advising clients under the Model Rules of Professional Conduct, and how these rules may apply in the local government context . In particular, Part I discusses In re County of Erie,7 in which the United States Court of Appeals for the Second Circuit endorsed a proactive role for the “complete” government lawyer in advising local government officials . Part II discusses features of the local government lawyer’s role that help to facilitate the attorney’s work in promoting justice . The conclusion briefly reflects on the importance of the role of local government attorneys .
I. Promoting Justice through Counseling Local officials: ethical Considerations
The counseling or advisory role of attorneys generally is addressed by Rule 2 .1 of the Model Rules of Professional Conduct . This Rule directs that “[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice .”8 In providing this advice, “a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation .”9 As the commentary to the Rule explains:
Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant . Purely
6 Excellent arguments for a “justice-seeking” or “public interest” role for government attorneys appear in Bruce A. Green, Must Government Lawyers “Seek Justice” in Civil Litigation?, 9 widener J. Pub. l. 235 (2000), and Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 b.c.l. reV. 789 (2000). For alternative perspectives, see Michael A. Cardozo, The Conflicting Ethical, Legal, and Public Policy Obligations of the Government’s Chief Legal Officer, 22 No. 3 Prof. law. 4, 5 (2014) (arguing that with respect to advocacy, “the relationship between lawyer and government entity is no different than the relationship between attorney and client in private practice”); Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64 s. cal. l. reV. 951, 1013-17 (1991) (arguing that the role of government lawyers in litigating cases is similar to that of private attorneys); Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 u. chi. l. reV. 1293, 1294 (1987) (describing the idea that “government attorneys represent some transcendental ‘public interest’” as “incoherent”). For analysis of who should be considered the “client” for a government lawyer, see Kathleen Clark, Government Lawyers and Confidentiality Norms, 85 wash. u.l. reV. 1033, 1049-73 (2007). See also Cardozo, 22 No. 3 Prof. law. at 5-6; Green, 9 widener J. Pub. l. at 266-70; Schwarz, Jr., supra note 2, at 377-78.
7 473 F.3d 413 (2d Cir. 2007).
8 model rules of Prof’l conducT r. 2.1 (am. bar ass’n). For insightful discussion of ethical considerations and the counseling role of attorneys generally, see Fred C. Zacharias, Practice, Theory, and the War on Terror, 59 emory l. J. 333 (2009).
9 model rules of Prof’l conducT r. 2.1. New York has adopted this Rule verbatim, except that New York includes “psychological” factors in addition to “moral, economic, social and political factors.” n.y. rules of Prof’l conducT r. 2.1.
The Role of Government Officials
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