The Government Attorney and Zealousness
Lawyers are supposed to zealously represent their clients. After all,
Canon 7 of the ABA Code of Professional Responsibility says, "A lawyer should represent a
client zealously within the bounds of the law." This requirement applies as much to government lawyers as it
does to private lawyers, right?<br>
<br>
Actually, zealousness does not really have a place in the practice of government law. The limits on zealousness by government
lawyers was just confirmed by a New York lawyer
disciplinary committee, according to <a href="http://www.nytimes.com/2009/03/05/nyregion/05da.html" target="”_blank”">an article
in today's New York </a><span><a href="http://www.nytimes.com/2009/03/05/nyregion/05da.html" target="”_blank”">Times</a>.</span><br>
<br>
I described the case in detail in <a href="http://www.cityethics.org/node/460" target="”_blank”">a blog entry last year</a>.
In short, instead of zealously prosecuting a case, an assistant
district attorney in NYC who believed the defendants were innocent, but
whose
superiors would not stop the prosecution, helped the defense and
intentionally lost the case. His position was</span></span> that he had
zealously represented his client:
the people of New York. “That client would have been ill served had two
innocent men remained in jail for a crime they did not commit," he said.<br>
<br>
The use of "zealous" here is not really appropriate, although it is probably how the prosecutor felt. A better way of putting it can
be found in the New York Lawyer's Code of Professional Responsibility,
Ethical Consideration
7-13, which states, "The responsibility of a public prosecutor differs
from
that of the usual advocate; it is to seek justice, not merely to
convict."<br>
<br>
Zealous advocacy is principally involved with criminal defense. In a
criminal
case, an individual is faced with a variety of representatives of the
government: the police, the prosecutor, and the court. Therefore, in
criminal defense anything legal goes. A defense lawyer should pull out
all the stops.<br>
<br>
But outside of this context, all the stops is not the way to practice.
And in the government context, there are many other responsibilities and interests that
conflict with a government lawyer's duties to his or her superiors.<br>
<br>
A government lawyer is representing people with fiduciary duties. A
government lawyer is representing people who are standing in for the
community. A government lawyer is representing people who themselves
have conflicting views, demands, and responsibilities. And in the
ethics context, a government lawyer is primarily an adviser, not an
advocate. Zealousness is always out of place when a lawyer is advising.<br>
<br>
I'd like to bring in another, very different case, from St. Petersburg, FL. According to <a href="http://www.tampabay.com/news/localgovernment/article976466.ece" target="”_blank”">a
recent column</a> in the St. Petersburg <span>Times </span>with the upsetting title,
"You Can Fight City Hall, But It'll Sue You," the city is suing 39
residents with docks on a small body of water, arguing that, even
though the homeowners have effectively owned the docks for 70 years, they're
really the city's. The city's leaders and attorney apparently never
even discussed the matter with the residents' council member.<br>
<br>
The city has decided to, as the columnist states it, "zealously"
protect its rights of way. It seems like an easy problem to work out,
but the city sued rather than dealing with the problem diplomatically
or fairly. The columnist's take on why is:<br>
<br>
<p>The city's real goal is just to "win," to
be legally
"right." ... the city's goal is to hurt a little neighborhood simply
because … </p>
<p> Because of the same reason St.
Petersburg is invading Tierra Verde despite overwhelming opposition. </p>
<p> Because of the same reason the city
wants to kick out the mom-and-pop owners of O'Neill's Marina. ...</p>
<p> Because it <i>can</i>.<br>
</p>
<p>Okay, sometimes politicians enjoy abusing their sovereign power. But
politicians aren't suing these people, the city attorney's office
is. Why would a lawyer representing the community act zealously
against citizens who have done nothing wrong? And no matter how zealous
an elected official may be (although I've never heard of a politician
zealous about rights of way), the city attorney should advise or take
another course of action.<br>
</p>
<p>I googled "zealous" and "city attorney," and found that many city
attorney offices describe their responsibilities using the word
"zealous." For example:<br>
</p>
<p class="MsoNormal">Little Rock, AR -
"excellent and ethical legal advice,
zealous legal representation"</p>
<p class="MsoNormal">Dallas, TX - "Zealously
represent the city in all
litigation"</span></p>
<p class="MsoNormal">Centennial,
CO - </span>"Represent,
support and zealously defend"</span></p>
<p class="MsoNormal">Delray
Beach, FL - "</span>effectively
and zealously represents the City's interests
and positions in negotiations, hearings, and litigation"</span></p>
</span>Remember: the word
"zealous" is extreme. My dictionary defines a zealot as "a fanatical
partisan." City attorneys should be fanatically nonpartisan, to the
extent
they should be fanatical at all. They should be the ones telling
everyone to calm down and act fairly and diplomatically, as a sovereign
representative of a community should. There should be nothing at all
zealous about anything a city attorney does, not representing, not
defending, not negotiating, and certainly not advising.</span></p><br>
<br>
<p class="MsoNormal">The word "zealous" should be removed from the
vocabulary of every local government attorney. It's a tough enough job without being zealous toward or about anything.<br>
</span></p>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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