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technical legal advice, therefore, can sometimes be inadequate . It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice . Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied .10
For attorneys counseling local officials, “moral, economic, social and political factors” are often relevant . As one former Corporation Counsel for the City of New York has described, many local policy matters involve legal issues, and vice versa: “Every policy issue, it seems, had a legal component . Most legal issues had serious policy consequences . The Corporation Counsel’s office operated at the intersection of law and policy .”11 In light of the responsibility of local officials to the public and the intertwined relationship of the law and local policy, considerations of justice, fairness and equity are inherent to a local government attorney’s counseling work .12
Furthermore, all attorneys are required to investigate matters for which they undertake representation . The Model Rules of Professional Conduct require that attorneys “provide competent representation to a client,” which includes “thoroughness and preparation reasonably necessary for the representation .”13 The commentary to the Rule indicates that “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem .”14 In the context of litigation, all attorneys are required to conduct appropriate factual investigations, and cannot take positions in court that contradict what they learn from an investigation .15
Although the behind-the-scenes counseling role of local government attorneys is rarely discussed in judicial decisions, the Second Circuit wrote at length about the importance of this role in In
10 model rules of Prof’l conducT r. 2.1 cmt. 2.
11 Peter L. Zimroth, Reflections on My Years as Corporation Counsel, 53 N.Y.L. sch. l. reV. 409, 410 (2008/2009). Mr. Zimroth served as Corporation Counsel under Mayor Edward I. Koch from 1987 to 1989. Id. at 409 n.a1. A series of excellent articles on the New York City Law Department appear in this volume of the New York Law School Law Review, which was published after a symposium on the history of the New York City Law Department.
12 In New York City, individuals who have held the position of Corporation Counsel have publicly discussed the relevance of these considerations to their counseling work. A biographical entry for Corporation Counsel Zachary W. Carter, who began serving in the position under Mayor Bill de Blasio in 2014, describes how he sees his role: “As a key legal advisor to the Mayor and his City agencies, Mr. Carter is primarily focused on advancing the City’s interests, with a commitment to justice and fair outcomes for individuals.” Biography of the Corporation Counsel, new york ciTy law deP’T, http://www.nyc.gov/html/law/html/about/counsel-bio.shtml (last visited May 16, 2016). Michael A. Cardozo, who served as Corporation Counsel under Mayor Michael R. Bloomberg from 2002 to 2013, has observed that Model Rule 2.1 “has a special resonance in the government lawyer context”: “the government lawyer must not only give legal advice, but must also forcefully express views on the desirability and morality of the particular policy question at issue.” Cardozo, supra note 6, at 4 n.a1, 7. Former Corporation Counsel Frederick A.O. Schwarz, Jr., who served under Mayor Koch from 1982 to 1986, has discussed the “heightened responsibility” of government attorneys to “uphold the law,” and sees their role in part “to help assure that both the Constitution and its related values are considered.” Schwarz, Jr., supra note 2, at 375 n.a1, 376, 381.
13 model rules of Prof’l conducT r. 1.1(a).
14 Id. r. 1.1 cmt. 5. For one example of a government attorney discussing factual information that impacted his counseling, see Green, supra note 6, at 249 (quoting a former Nevada Deputy Attorney General’s discussion of his determination, in the context of institutional reform litigation, that a state prison “was in violation of state fire codes worse than even the complaint suggested”).
15 See model rules of Prof’l conducT r. 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”); id. r. 3.1 cmt. 2 (noting that attorneys are required to “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions”); fed. r. ciV. P. 11(b) (requiring attorneys making written submissions to perform “an inquiry reasonable under the circumstances” and certify that “the factual contentions have evidentiary support” and “the denials of factual contentions are warranted on the evidence” unless otherwise indicated).
Impact: Collected Essays on Expanding Access to Justice