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?

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 an article in today's New York Times.

I described the case in detail in a blog entry last year. 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 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.

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."

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.

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.

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.

I'd like to bring in another, very different case, from St. Petersburg, FL. According to a recent column in the St. Petersburg Times 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.

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:

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 …

Because of the same reason St. Petersburg is invading Tierra Verde despite overwhelming opposition.

Because of the same reason the city wants to kick out the mom-and-pop owners of O'Neill's Marina. ...

Because it can.

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.

I googled "zealous" and "city attorney," and found that many city attorney offices describe their responsibilities using the word "zealous." For example:

Little Rock, AR - "excellent and ethical legal advice, zealous legal representation"

Dallas, TX - "Zealously represent the city in all litigation"

Centennial, CO - "Represent, support and zealously defend"

Delray Beach, FL - "effectively and zealously represents the City's interests and positions in negotiations, hearings, and litigation"

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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