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constraints . Some officials may be insensitive to the needs of the individuals who may be adversely affected by a new initiative – or, they may believe that the new initiative would benefit more members of the public even if it results in violating some individuals’ rights . The law is not always clear, and some officials may disagree with the attorney’s analysis or prefer to risk an adverse court ruling . Some officials may not want attorneys involved at all . Understanding the perspectives of local officials can be helpful in approaching the issue . The challenge of counseling clients who may not want to listen can be significant, but should not be a deterrent to providing legal advice .30
Sometimes a policy may be legally vulnerable even though it is intended to protect and promote the interests and rights of local constituents . For example, successful legal challenges have been brought to local policies and initiatives that support school integration,31 affirmative action,32 and separation of church and state .33 Legal challenges have been brought to local anti-smoking, environmental, rent regulation and anti-discrimination laws and policies .34 Local government attorneys can work with local officials to draft local laws or policies that are consistent with existing case law or statutory requirements and are supported by a strong factual record, in order to maximize the likelihood that the policies will be upheld in court .35
Importantly, because of their ongoing relationships with their clients, local government attorneys can be ideally positioned to explain legal problems to government officials and to explore creative solutions . At times, relationships between local government officials and attorneys or other representatives from legal advocacy organizations may be strained . Some local government officials may be more responsive to concerns raised by a local government attorney – and more likely to trust the attorney’s judgment – particularly if the attorney already has a strong working relationship with the official . Also, through their work local government attorneys can develop significant insight into the operations of local agencies as well as the perspectives of agency officials . With this knowledge, in some situations local government attorneys can work to craft solutions that would address the legal issue while also meeting other concerns raised by agency officials .
30 As stated in the commentary to Model Rule 2.1:
Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. however, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
Id. r. 2.1 cmt. 1.
31 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 u.S. 701 (2007).
32 See City of Richmond v. J.A. Croson Co., 488 u.S. 469 (1989).
33 See Good News Club v. Milford Cent. Sch., 533 u.S. 98 (2001). See generally Ann Southworth, Conservative Lawyers and the Contest Over the Meaning of “Public Interest Law”, 52 uCLA L. ReV. 1223, 1268 (2005) (discussing litigation to “invalidate affirmative action programs as violations of the Equal Protection Clause, revitalize the Privileges or Immunities and Due Process Clauses of the Fourteenth Amendment as restrictions on economic regulation . . . expand the concepts of ‘equal access’ to governmental benefits for religious groups and religious liberty in the private sector, [and] strike down campaign finance laws under the First Amendment,” among other things).
34 See Paul Diller, Intrastate Preemption, 87 B.u. L. reV. 1113, 1143-45 (2007) (discussing attempts by businesses to use preemption doctrine to challenge local regulations).
35 For example, the author worked closely with New York City Department of Education officials and other Law Department attorneys to defend a multi-year legal challenge to a policy that prohibited the use of public school buildings for “religious worship services” or “as a house of worship.” Bronx household of Faith v. Bd. of Educ., 650 F.3d 30, 36 (2d Cir.), cert. denied, 132 S. Ct. 816 (2011) & Bronx household of Faith v. Bd. of Educ., 750 F.3d 184 (2d Cir. 2014), cert. denied, 135 S. Ct. 1730 (2015). The policy that was upheld had been revised while the litigation was pending. 650 F.3d at 34-35. The Second Circuit had initially affirmed a preliminary injunction in the case, but reversed a permanent injunction after the policy was revised and the factual record was further developed. Id. at 34-35, 41-46.
Impact: Collected Essays on Expanding Access to Justice