Page 137 - Impact: Collected Essays on Expanding Access to Justice

Local government attorneys can be highly influential in helping to prevent or remedy problems, whether through internal agency conversations, by working together with advocates from outside government, or in the context of litigation . By providing sound legal advice to officials whom the attorney works with on a regular basis and working creatively to develop solutions, a local government attorney can help to promote justice .
B. Legal Lens
Many different public officials and constituents may express their views on the merits of a proposed local policy initiative . A local government attorney exercising his or her obligation to advise clients on the legal merits of an issue brings a distinct perspective to internal agency policy discussions – here termed the “legal lens .”36 The attorney, like other officials, may discuss moral, practical and political considerations . However, unlike other officials, the attorney is also ethically required to describe whatever legal requirements may apply, and how a court or a state or federal oversight agency might perceive the policy initiative if it were challenged . The attorney’s ethical obligations provide the attorney with a degree of independence in raising concerns about proposed initiatives that some other local officials may lack .37
A local government attorney’s analysis of possible legal issues can and should influence internal agency discussions about how to design, revise or implement an agency policy initiative . Among other things, the attorney may discuss the presence or likelihood of litigation or an administrative proceeding; any challenges attorneys might face in defending the agency; the risk of an adverse court ruling or determination of a government oversight agency; and the impact that the precedent of an adverse determination may have on future agency initiatives or the agency’s authority . The attorney may discuss any likely remedial action that might be taken by a court or government oversight agency, including injunctive relief, monetary damages, fines, or withholding of government funds .
The local government attorney’s role can be especially important when the people whose rights might be adversely impacted by the action do not have significant political power .38 The threat of an adverse ruling and court intervention in agency operations can prompt agency officials to take actions that they might not otherwise take, in order to protect individual rights . For example, if a new law enforcement initiative raises civil liberties concerns, a local government attorney can analyze relevant constitutional law precedents and discuss the likelihood that it could be enjoined in court . The attorney can also propose revising the initiative based on the legal precedents .
When bringing legal risks to the attention of local government officials, a local government attorney may also discuss possible alternatives . It may be possible for government officials to change a policy or restructure an initiative in a way that would address the officials’ policy goals in a manner that is consistent with the agency’s legal obligations . The attorney’s ability to propose solutions may be enhanced in situations in which the attorney has developed a strong understanding of the factual circumstances as well as the legal issues, and has constructive working relationships with agency officials .
36 See Schwarz, Jr., supra note 2, at 386.
37 See Jeffrey D. Friedlander, The Independence of the Law Department, 53 N.Y.L. sch. l. reV. 479 (2008/2009). Mr. Friedlander served as First Assistant Corporation Counsel at the New York City Law Department for about 20 years. See Sam Roberts, No. 2 Lawyer for New York City, Set to Retire, Looks Back, N.Y. Times, Apr. 16, 2015, http://www. nytimes.com/2015/04/17/nyregion/city-of-new-yorks-no-2-lawyer-to-retire.html.
38 Schwarz, Jr., supra note 2, at 380-81.
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