Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney, 18 Me. L. Rev. 155 (1966).

Judge Jack Weinstein's 1966 article brilliantly captures the dilemmas faced by non federal government attorneys who strive to be ethical in their daily practice.  Judge Weinstein not only analyzes the challenges but also proposes highly principled and down to earth solutions.   It is the classic article in the field.

 

SOME ETHICAL AND POLITICAL PROBLEMS

OF A GOVERNMENT ATTORNEY

*Jack B. Weinstein

 

I.        COMPARISON OF  NASSAU  COUNTY  AND  MAINE  CoUNTY  ATTORNEY The position as County Attorney of Nassau County is somewhat different from that of a county attorney in Maine. As I understand the matter from your statutes and the 1952 Dow report on Maine county govemment,1 your county attorney is a part-time officer with compensation averaging about $5,000 a year.2 His work is primarily that of a criminal prosecutor, although he has civil jurisdiction. The Attorney General of Maine possesses supervisory powers over him.3

The county attorney in New York is a civil attorney,4  much like a city corporation counsel.5 New York's county attorneys are not subject

t This paper was presented in a speech by Professor Jack B. Weinstein at the University of Maine Law Forum on April 8, 1966, in Portland, Maine.

* Jack B. Weinstein, Professor of Law, Columbia University; B.A., 1943, Brook­lyn College; LL.B., 1948, Columbia University.

1 Dow, CoUNTY GOVERNMENT IN :MAINE 19-20 (1952).

2 Ibid. The report recommended full-time district attorneys, one for each  jail district, selected by a screening committee and appointed  by  the  Attorney  General. If reappointed, they would serve for  life.  Salaries  in  some  areas  have  recently been increased slightly. :ME. REv. STAT. ANN. tit. 30, § 2 (Supp. 1965).

3 See [1963-1964] ME. ArrY  GEN. ,REP.  9.  For  the  powers,  duties  and  salary of the Attorney General, see l\1E. REv. STAT. ANN. tit. 5, §§ 191, 192, 195, 196

199 (1964).

4 See, e.g., CoUNTY GOVERNMENT LAW OF NASSAU COUNlY, § 1102:

General powers and duties. The county attorney shall represent the county and all departments, officers, institutions  and  agencies  thereof, in all litigation, draw all contracts, draw ordinances or resolutions at the request of the county executive or any member of the board of super­ visors, and act as legal adviser of the county and all departments, institu­ tions, offices, agencies, or officers thereof, and have such other powers and duties, not inconsistent with the terms of this act, as are  now, or  may hereafter be, conferred or imposed by law or ordinance. The county attorney upon the request of the governing body of any city, town, village, school district or special district, may act as the legal adviser or representative thereof on such terms as may be agreed upon between the county executive and the said governing body. (Amended by L. 1937 Ch. 618 § 25, in effect January 1, 1938.)

5. He must be admitted to the bar-unlike  the Attorney  General  of  the  State  of New York and some county attorneys. See, e.g., N. Y. CoNST. art. V, § 1 (same qualifications as governor); Note, The Role of the Prosecutor in Utah, 5 UTAH

L. REv. 70, 76 (1957) (seven county attorneys not admitted to bar because no attorney in county).

 

to control by the State Attorney General.6 Criminal prosecutions are conducted by an independent, elected district attorney in each county.7 The salary of the Nassau  County  Attorney is $25,000  a  year;  he has 30 full-time lawyers on his staff of 80, and his annual budget is about a million dollars.8  It is probably a  tribute to the efficiency and frugality of Maine residents that the Attorney General of the State of Maine has, for all the State's legal business, half the number of lawyers on the Nassau County staff and a small fraction of the number of  stenograph­  ers and clerks.9

Lest you think that Nassau County is without any prudence in spend­ ing its money, let me explain that Nassau County has a population of 1,400,000 - that is, it has more than one-third more residents than Maine. It contains two cities, three towns, including one with a popula­tion of 800,000, some 60 villages, and hundreds of special districts. The County employs some 10,000 people and its annual budget is over two hundred million dollars. Moreover, unlike the New England counties, which have been traditionally weak, the County of Nassau exercises very substantial governmental administrative and local legislative powers. Nassau County has an elected county executive, who has powers equivalent to those of a strong mayor of a large city.

Lying adjacent to New York City, the County faces in its legal busi­ ness many of the same complexities as New York City. Some subtleties are added by the many autonomous governmental units within the county.

New York's system of local government, like yours, is far from per­fect. The Fourth Report of  the Maine Legislative  Research  Committee to the ninety-sixth Legislature on County Government  noted:  "The people may blame a delinquent official, or even occasionally themselves, but they are only slowly coming  to see that  the real difficulty  may  lie  in the system itself." 10 It pointed to the need for widespread public un­derstanding "to overcome the opposition of vested political interests in the existing system." 11 Exactly the same language could be used in New York and many other states.

 

6 N.Y. ExECUTIVE LAW§§ 60-73.

7 N.Y. CONST. art. IX, § 5; N.Y. COUNTY LAW §§ 400, 700.

8 NASSAU COUNTY, N.Y., ANNUAL BUDGET 1966, at 55 (recommended by county executive: $1,355,023 of which $880,348 was for personal services).

9 [1963-1964] ME. Arr'y GEN. REP. 4, 9.

10.  ME. LEG. R.EsEARCH COMM., 96TH LEG., FOURTH REPORT ON COUNTY Gov'T 3 (1953).

11 Ibid. See also, e.g., COMMITTEE FOR EcONOMIC DEVELOPMENT, MooERNlZINO LOCAL GOVERNMENT 16-19 (1966). 

 

II.      SINGLE LEGAL PROFESSION

There is a core of knowledge and skills common to lawyers, whether they are practitioners, government officials, law teachers, or judges. One of the great joys of our profession is that our training permits us to advise diverse clients in disparate fields and to move from government to private work with comparative ease.  We can learn what we need of economics to try an antitrust suit, of psychiatry to try a  homicide case, and of bureaucracy to help our clients get reelected.

In many respects, the work of the government attorney is similar to that of a law teacher. He finds himself revising and writing documents; explaining his policies to his subordinates, and to others in county gov­ ernment and to the public; and trying to teach judges and juries-often with as little success as he has in class.

I shall only note here that my experience in government has convinced me of the importance of theoretical training in the law school The lawyers who are essential when a new and difficult legal problem is presented are those who have been trained to think critically - not necessarily those with the greatest practical experience. Most intelligent lawyers can learn rather quickly thedetailed practice in special fields.  I do not undervalue, of course,  the sense of proportion and knowledge of alternatives that come with maturity and experience. The Nassau County Attorney's office was, fortunately, nicely balanced with sound, experienced men aware of the limitations of government authority, and bright young law graduates who thought anything was possible.

Naturally, as a teacher, I am somewhat biased in my view. But our experiences in the Nassau County Attorney's office in providing sum­mer programs for second- and third-year student law-interns convinced me that good practice and good law school training are closely correlated.12 Training in thinking as lawyers makes a  difference long after the student has graduated, when he is sure to have forgotten almost all the detailed rules he learned at law school-and those that he has not forgotten have probably been modified by statute or case law.

A general practitioner's skills are, in the main, those skills a govern­ment attorney must rely upon. Both must be habituated to view their client's disasters, with equanimity.

Ill. SPECIAL PROBLEMS OF THE GOVERNMENT ATTORNEY

What I would like to speak about primarily tonight are some of the

 

12 The summer interns did professional work including research and  brief  writ­ ing under the supervision of the county attorney or deputy. Twice each week they attended two hour seminars on legal problems such as brief writing and con­ demnation practice and local governmental problems such as budgeting and organization of the police department;  guided  tours  included  such  places  as  the the county clerk's offices, the health laboratories and the jail.

 

special problems of judgment presented by a local government practice. The bothersome problems of a government attorney are not so much the legal-technical ones of what can be done, or how to do it, but what should be done. As Edmund Burke put it in his plea to Parliament on

behalf of  the American colonies in 1775, "The question with  me is  ... not what a lawyer tells me I may do, but what humanity, reason, and justice tells me I ought to do." 13

Three aspects of the government attorney's work have particularly intrigued me. They are first,  the deep  political  dimension  that  almost all important governmental legal  questions  have; second,  the necessity of integrating the government's law office with other government de­ partments; and, third, the difficult problems of judgment and ethics created by the government lawyer's multiplicity of clients.

A.         Political Dimensions of a Law Officer's Decisions

A report, The Survey of the Legal Profession by the American Bar Association, declared in black letter: "To Inspire Confidence, It is re­ quired that Public Legal Positions Shall be Conducted and Opinions Rendered According to Law and Not to Please Politicians." 14

If this statement means that political  bosses should  not  be permitted to rig legal opinions and activities of a government law office for private benefit, the statement must be endorsed. If it means, however, that the legal position of a government office should be taken without consider­ ing its political or policy implications, it is wrong.

The chief government law officer must and should attempt to please some politicians: he is, by virtue of his position, a political or policy­ making figure, a member of a government administration which achieved office by a political-governmental program. He has a responsibility to consider what effect his actions will have in developing and executing what he conceives to be sound public policy, in inducing confidence of the public in government, and in strengthening elected officials so that they can continue to control the government's machinery in  achieving  the ends he supports.

Governments and their attorneys have a duty  to help individuals and  to try to build a better society.15  The persnickety  law official  who  keeps

l3  NILES, CHRONICLES OF TIIE AMERICAN  REVOLUTION  115 (Vaughan ed. 1965).

14 Seasongood, Public Service by Lawyers in Local Government, 2 SYRACUSE L. REv. 210, 222 (1951). CJ. Cowen, The Need for County Legal Departments, 31 AMERICAN COUNTY GOVERNMENT 43, 44 (1966) (suggesting that if the office becomes  "ombroiled  in  politics"  properly  qualified  lawyers  may  avoid   the   position).

15 See, e.g., Mr.  Justice Stanley  Reed:  "Democracy  has  a  right  to  expect that the  members  of  the  Bar  .  .  .  shall  show  their  appreciation  of  the  benefits   con­ ferred   upon   them   by   a   conscious   effort   to   make   that   Democracy   effective." The  Bar's  Part  in  the  Maintenance  of   American  Democratic  Ideals,  24 A.B.A.J.

 

his shoes clean by stepping around the mudholes of politics and public policy neglects the most important and exciting aspect of his office. He conceives of his office as a slot machine handing out opinions and acting with mechanical exactitude; he fails to grasp its more useful, complex and flexible function in meeting social problems.

Let me somewhat narrow  the limits  of  the  problem  as  I  see  it.  It is wrong to exercise favoritism toward an individual dealing with the government. If a man, for  example,  is seeking a  license  or  an award for tort or condemnation damages, or defending  against  a  prosecution by the government, his treatment should be completely independent of whom he knows, who are his relatives, or what are his political connec­ tions. Boss Flynn, in his biography, illustrated what he conceived to be one of the advantages of political connections when he noted: "At times business concerns are cited for minor violations. Where discretion is indicated, having a friend at court  harms  no one." 16  I  would  submit that such an attitude does grievous harm to the whole governmental fab­ ric because the average citizen then knows he is not getting equal treat­ ment with the politically well connected.

The rule in my office with respect to what might be called the service aspect of the government attorney's work was flat and absolute. No dis­ crimination was tolerated. It is utterly and outrageously wrong to differ­ entiate among citizens because of their political connections. Every mem­ ber of the legal staff should be aware of undeviating policy that no one's political background should have any significance in the way claims are processed. Members of the public are entitled to, and must receive, the assurance that their claims and business with the County-or any other governmental unit-will be decided solely on the merits. Any person walking into the office should be confident that there are no back doors for the politicians.

One way of making this rule clear to the staff is to enforce a policy within the office of assigning work, pay increases and promotions strictly on the basis of work product and achievement in the office. This policy reduces somewhat the pressure on individual lawyers to help themselves by helping influential people. It does not completely eliminate pressures since there is always the possibility of advancement outside the office whether in other branches of public service or through lucrative private practice. The example of the head of the office, and the express threat

 

622, 623 (1938), cited in Mathews, The Communication of Professional Values, 26 Omo ST. LJ. 89, 96 (1965); see also Countryman, The Scope of the Lawyer's Professional Responsibility, 26 Omo ST. LJ. 66, 71-82, 84-87 (1965). Cf., Paige, The Professor and Politics, 52 AM. Ass'N OF UNIV. PROFS. BULL. 52 (1966) (estimates five thousand academic consultants to government in the Cambridge, Massachusetts area).

16FLYNN, ''You'RE THE Boss" 25 (1947).

 

that anyone caught succumbing to such temptation will be fired, help guard against this pervasive danger.

There is one unavoidable exception to the rule against discrimination. In dealing with individuals, the government lawyer will, naturally, get a sense for who can and cannot be trusted. A private lawyer with a good reputation has an easier time because his word can be relied upon in instances where another lawyer might be pressed to produce hard evi­ dence. But this factor, it seems to me, is perfectly legitimate-a lawyer's reputation is, after all, his chief stock in trade. Here social and political connections may have a slight bearing. Having observed a man repeated­ ly, you may have more faith in him than in a stranger. This psychologi­ cal verity needs to be controlled to avoid abusive use of government of­ fice to favor cronies. My own experience has not indicated any party monopoly of rectitude. In the case of some-including members of both parties-to know them is to distrust them. Most lawyers are, of course, completely trustworthy, and a presumption to that effect is properly ap­ plied in any government office.

One more matter should be excluded from the field of  proper  politi­ cal activities. If there is wrongdoing in government, it must be exposed. The law officer has a special obligation not to permit a cover-up of illegal activity on the ground that exposure may hurt his party. His duty to the people, the law, and his own conscience requires disclosure and prosecu­ tion. In point of fact, it has always seemed to me that any failure to prosecute members of a party in power is a political as well as an ethical mistake. In this respect, the public lawyer is assisted by the view of the more sophisticated modern political leaders that "good government is good politics." It is far better for any party to clean its own house than to leave the issue of corruption to an opposing party. According to Profes­ sor Walker's monograph on the Maine political system, "the Maine political environment is considered to be fairly 'clean' by most of its citi­ zens"17 so that, apparently, Maine does not have a substantial problem in this respect.

The political aspects of the Nassau County Attorney's office were particularly sensitive because the Republican party had been in absolute control for half a century before the present Democratic county executive was elected. Moreover, the local legislative body remained in Republican hands as did other local governments within the county. Since Eugene H. Nickerson, the new County Executive, was an extraordinary man in his own right-he had been a member of the Columbia  Law Review,  a clerk to Chief  Justice Stone,  and  a senior  partner  of  a first-rate law firm-and

 

 

17 WALKER,   A    MAINE   PROFILE,   SOME    CONDITIONS    OF   HBll.  Political SYSTEM 50 (Bureau for Research in Municipal Government, Government  Research  Series No. 25. 1964).

 

he had strong ideas about improvement of administration and new policy, political conflicts were inevitable.

But even where there is a surface consensus, the problem still exists.18 For example, Ransone, in his book, The Office of the Governor in the United States, points out that in the South, under the single party system, the governor must spend more time on policy and political-legislative matters than he does in the North.19 Maine has what Walker  refers to  as a "neo-whig theory of llimitedl executive power"20 in a one-party system; but, like governors in the South, he concludes, a Maine governor's "difficulties" with the legislature "are as much  political  as  institutional in origin." 21

Much will depend upon the lawyer's own personality and background and upon whether the administration of which he is a  party is interested in maintaining the status quo or in change. Let me give you some ex­ amples. When I took office it was obvious that real property assessments for tax purposes were not equal and at full value as required by statute; land and buildings had been assessed on the basis of 1938 prices and  they no longer reflected current values. Since values had not changed uni­ formly in the county, there were necessarily wide variations and sub­ stantial unfairness. The best legal way to solve the problem would have been to re-assess immediately all land and buildings. Such a step would probably have placed a heavier burden on home owners. In any event, such a re-assessment would have stirred up the community; each tax­ payer would have thought that the increase in his assessment was more than proportional. The Republicans, who had been in power until 1962, and the Democrats, who succeeded them, were afraid to act lest they

 

18 In some respects the problem is greater in a one-party setting since the issues are often not publicly ventilated through debate between party representatives. Speaking of Maine, David B. Walker notes: "Political parties are the proper informal mechanisms for linking the centers of formal governmental power (the judiciary excepted) and for linking the people with the government; it  is the right and duty of the majority party through its leadership in both the legislative and executive branches to produce the consensus required for policy enactment." Id. at 52. For reasons beyond the scope of this paper, a strong legislative and strong independent governor who has full control of the executive branch seems desirable in most state and local governments. See, e.g., NATIONAL MUNICIPAL LEAGUE, MODEL STATE CoNSTITUTION 9-12, 65-77 (6th ed. 1963); NATIONAL MUNICIPAL LEAGUE,  SALIENT  lssUES  OF  CONSTITUTIONAL  R.EvlsION  80-114  (1961). 19 RANSONE, THE OFFICE OF GOVERNOR IN THE UNITED STATES 140, 142, 149 (1956).

20 WALKER, op. cit. supra note 17, at 33.

21 Id. at 51. The council sYStem used in Maine is much like that of New York and other states in the late eighteenth and early nineteenth centuries. Walker refers to the council as an "ancient check on the executive authority." Id. at 31. Maine is the only state in which the executive council is elected by the legislature. Ibid.

 

alienate a large bloc of voters. (It is my hope that our new  Nassnu  County charter will contain a provision for periodic full re-assessment.)

One class of property was seriously under-assessed, as compared with other property-vacant land. Land has become so scarce in our county that it has increased in value at a rate many times greater than buildings. As a result, owners of vacant land paid taxes on assessments of from 1 to 10 percent of current value while homeowners paid at roughly 30 per­ cent of today's worth. The leading Democratic member of the board of assessors and I recommended bringing the vacant land up to the 30 per­ cent ratio-a change which would increase the taxes of some persons holding vacant land by as much as 30 times. Badly needed tax revenues would thus accrue without adding to the homeowner's burdens.

There was practically no precedent on the matter, but after a  thor­  ough briefing of the economics and law involved, I was convinced that vacant land re-assessment would reduce inequalities and was, therefore, legal-that is to say, it would be sustained in our  highest  cour t.22  Since the County Executive strongly favored the plan, and I believed that  it  was sound in policy and defensible in law, I felt no compunction about using the full prestige of my legal position in internal conferences with the various county departments whose cooperation was essential. As legal adviser to all of them, my office acted to make certain that the plan was swiftly carried out. This technique seems to me a proper use of legal­ political power.

The office of the State Attorney General was held by a Republican, who, during the height of the political battle over this re-assessment, is­ sued a brief opinion letter, at the request of local Republican leaders, de­ claring that the plan was invalid. Unfortunately, the Assistant Attorney General who drafted the opinion had neither adequately briefed the facts nor the law, and his letter was properly ignored as a purely political docu­ ment. This is not to say that a legitimate argument supporting the con­ clusion reached in the state opinion letter could not have been devel­ oped-but the letter was not so supported. It seems to  me essential  that any document of this kind be prepared in a workmanlike manner and be based on a good-faith analysis of the authorities and principles. It is important that the public not get the impression that the lawyer will take legal positions merely because it is politically expedient to do so.

As in private practice, the attorney must tell his client when he is wrong. The attorney is never the mere hireling of government or of any­ one else. He is an independent professional and must stand on what he thinks is right.

 

22 See C.H.O.B. Associates, Inc. v. County of Nassau, 45 Misc. 2d 184, 257 N.Y.S.2d 31 (1964), a/J'd, 22 App. Div. 2d 1015, 256 N.Y.S.2d 550 (2d Dept.

1965), afj'd, 16 N.Y.2d 779, 209 N.E.2d 820,262 N.Y.S.2d 501 (1965).

One good current illustration of this need for the lawyer to  stand fast is in the area of reapportionment. The present position is quite clear: one-man-one-vote applies not only to state legislatures but to local legis­ lative bodies. Yet in my state there have been a number of  counties which have become involved in extensive litigation designed to forestall reapportionment and to put off the ultimate day of reckoning. The government attorney must tell government officials that such  a position is wrong. When the matter was put firmly and without equivocation to members of our Nassau County local legislative body, they did agree that change was necessary even though they preferred the status quo. We will. in Nassau County, shortly have an acceptable reapportionment plan. In some other counties of the state, where the disproportion in voting strength is over one hundred to one, suits are being defended solely for purposes of delay. This same firm position needs to be taken by govern­ ment attorneys in other instances, as in the local school desegregation cases or as Attorney General Flowers did in Alabama recently  when local authorities refused to enforce the penal law in a civil-rights killing. One area often overlooked in the past is adequate legal representation for the poor. My office developed a plan for an extensive civil and crimi­ nal legal assistance program.23 It is one of my deep regrets that although the criminal law phase of the plan was adopted, our bar has thus far op­ posed the civil phase.24 But the matter is by no means closed, substantial federal aid is available, and I hope the County will continue to press for

reform in this area.

Energy and resources are, of course, limited. And no one can fight every battle at once. It has been aptly observed that while, on the one hand, "no good society can be unprincipled,'' on the other hand, "no viable society can be principle-ridden." For "[o]ur democratic ... government exists in this Lincolnian tension between principles and ex­ pediency."25 For example, partly because of other commitments and partly because it seemed inexpedient to take on too many political and social struggles at one time, my office never seriously came to grips with the bail problem2.6  We did,  however, help  reform  the  jail  by instituting

 

23 Weinstein, Legal  Assistance  to  the I11dige11t  in Nassau Coumy, 154 N.Y.LJ.

4 (Dec. 8, 1965).

24 The plan  was  approved  by  the  courts  in  June,  1966  and  a  grant  of  almost a quarter of a million dollars has been obtained from the Office of Economic Opportunity. It is now being supported by leading members of the bar and by the county.

25  BICKEL, THE LEAST DANGEROUS BRANCH-THE SUPREME COURT AT TllE

BAR OF PoLmcs 64, 68, quoted in Gunther, The Subtle Vices of the "Passfre Virtues"-A Comment on Principle and Expediency in Judicial Reriew, 64 CoLUM. L. REv. 1, 5 (1964).

26 Cf. ME. LEG. RESEARCH  COMM.,  100TH LEG., REPORT ON  MAINE COUN,Y

JAILS 9 (1961).

 

civil service for jailors and by providing for an appointive bead of the correction department to replace an elective sheriff.

Hundreds of young men are in our county jail simply because they can not raise funds for bail. The slowness of our criminal trial processes ( a matter which we tried unsuccessfully to remedy in part by working for a further consolidation of the courts), results in many instances in poor persons remaining in jail awaiting trial for terms in excess of those they would have served had they pleaded or been proven guilty when they were first arrested.

I also regret not having moved more forcefully toward non-partisan hiring in the County Attorney's office. 27 Heretofore all attorneys in the Nassau County Attorney's office have been appointed from the same political party as the County Executive, although most of the clerks, typists, and the like are appointed from civil service lists. Particularly where political lines are tightly drawn and there is a difference in politi­ cal philosophy, it is perfectly appropriate that lawyers be appointed who are sympathetic to the administration's point of view and bound by politi­ cal ties to assure that its policies are not sabotaged. But some lawyers in such divisions as condemnation, torts, and workmen's compensation deal with matters which have minimal political  aspects. Except for the heads of these divisions, it should be possible to work out some form of tenure much as is the case in the New York City Corporation Counsel's Office and the United States Department of Justice, so that there is continuity from administration to administration.

I do not believe in discouraging people in government from being in­ volved in party politics. A number of the brightest young men I  could find did enter local government through my office. A few became inter­ ested in our office through our summer training program. Some of those youngsters had no previous political background. In almost all cases they became so involved in problems of government that they did, of  their own volition, become active in politics.

No one in the office was permitted to practice, even outside of office hours. This requirement seems to me to be essential if we are to avoid conflicts of interest and obtain the best possible legal service for the gov­ ernment.28 Part-time low-paid district attorneys and county attorneys are

 

 

27 See, e.g., Seasongood, Should the Merit System Be Used in Making Appoint­ ments of Lawyers for Public Service?, 15 U. ClNC. L. REV. 209 (1941); Legal Services and Procedure, REPORT TO TIIE CoNGRESS BY TIIE CoMMISSION ON OR­ GANIZATION OF TIIE ExECUTIVE BRANCH OF TIIE GOVERNMENT 15-25 (1955).

28 See the recommendation of the Commission, id. at 26: "Attorneys occupying full-time  positions  in  the  executive  branch  should  be  prohibited  from  engaging in outside legal practice except upon express permission to handle family  legal matters which do not interfere with the performance of official duties. They

GOVERNMENT ATTORNEY

 

an expensive luxury. The service such attorneys can render is often not good enough. Part-time district attorneys, for example, do not help supervise the police properly, and, as a result, cases are ultimately lost because the police have not taken the precautions demanded by our present highly technical rules of arrest, search and seizure, confessions, and the like. For this reason, among others, there is a national movement to use only full-time prosecutors.29 Full-time service, of course, requires decent salaries. By the time I left we had brought the minimum salary for a man with a few years' experience to 10,000 dollars and the top assist­ ants received from 17,000 to 20,000 dollars a year. The policy against private practice was established by my distinguished predecessor, Bertram Hamett.

Because few decisions of the county attorney will ever be challenged in court, his administrative rulings and opinion letters have the same practical force as an opinion of our highest court30 As a United States Attorney General put it more than a hundred years ago, "in the perform­ ance of this part of his duty .  .  .  he is not a  counsel  giving advice  to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and legal obligation."31

Publication of opinions, so long as they do not involve privileged mat­ ter, helps insure objectivity. More care may be taken by the writer if he knows his peers will examine what he wrote. Moreover, the opinion may be as useful as a court decision for the lawyer looking for authority. Publication is the practice of the Attorney General in both Maine and New York. As County Attorney I ordered some three thousand of our opinions indexed. This index and copies of our opinions will shortly be available to the bench and bar. I hope this collection will also prove use­ ful to students of local government.

Since his opinions are usually rendered ex parte, in response to a re­ quest from a government official, it is essential that the assistants in the office-who do the bulk of the work-be encouraged  to dissent  and look for alternative answers. Each government lawyer must bear in mind that he is a professional with the same ethical responsibilities as the head of

should be prohibited from  engaging  in  business  activities  which  interfere  with  the performance of their official duties."

29 See,   e.g.,   Dow,  op.  cit.  supra   note  1,  at   19-20;    Note,  supra    note   S, at 76. ,REPORT, op. cit. supra note 27, at 15-25; N.Y. Ass. INT.  3729,  Pr.  3804 (1966) (prohibiting district attorneys from holding other political office  or  en­ gaging in private practice of law).

so See, e.g., Note, supra note 5, at 72; Fairlie, Simpson, Law Offices in lflinois, S JoHN _MARSHALL LQ. 65, 71 (1942) ("estimate[s] that ninety percent of the administrative law of a state like Ohio finds its source in the written opinions of the Attorney General. ..").

316 OPS. ATTY. GEN. Office and Duties of Attorney General 326, 334 (1854).

(Caleb Cushing to the President).

 

the office. Since the office can speak to the outside world with only one voice, and the county attorney decides the office position, internal differ­ ences of opinion may create difficulties. If any lawyer working on a prob­ lem was not able to convince me, or me him, he was relieved of work on

the matter. A lawyer should not have to handle a case he cannot believe in.32

Let me give you one example. The legislature had amended our voting laws to require a voter to reregister even if he only moved within his elec­ tion district. But it had failed to conform a number of other  statutes which, as I read them, indicated he could vote under such circumstances without reregistering. In my opinion the strong state constitutional policy in favor of preserving the right to vote plus appropriate statutory analysis led to the conclusion that such a voter could vote without reregistering. The Assistant County Attorney delegated the job of answering a request from the Board of Elections, thought otherwise and drafted a most per­ suasive opinion letter embodying his theory. Although another assistant was assigned to redraft the opinion letter my way, the status of the dis­ senter increased in my eyes. As I told him, a trial court might support his position, but I would probably win in the Court of Appeals. Interestingly enough, our views were never put to the test because the Board of Elec­ tions and all the political parties accepted the opinion as law.

Sometimes, office dissent becomes hard to quell. In one instance we

had found information adverse to our position in legislative documents that neither our opponents nor the judge would have been likely to dis­ cover. In revising our brief I penciled in a paragraph dealing with this matter. But the lawyer arguing the case, a devoted advocate, thought it would confuse the judge if we provided him with this adverse informa­ tion. He took out the offending references before filing our brief. There was some unhappiness about my insistence that we file  an  additional brief containing the adverse information, but, of course, the chief legal officer must insist that it is his policy and ethical standards which con­ troI.33

B.    Law officer as a coordinator of other departments

I have already referred, in connection with the land re-assessment case, to the use of the county attorney's office as a vehicle for controlling, co­ ordinating, and executing in all departments the policies of the execu-

32 Mathews, The Communication of Professional Values, 26 Omo ST.  L.J.  89, 96 (1965): "[R]espect for personality, one's own as well as that of others. This, after all, is the one fundamental value upon which all other values rest."

33 See Weinstein, Judicial Notice and the  Duty to Disclose Adverse  Information,

34 _IOWA L. REV. 807, 810, 819 (1966); cf.  N.Y. Times, June 28, 1966, p. 1, col.

1 ("Perhaps, Justice Weintraub wrote,  'the  investigatorial  arm  of  government should be deemed the impartial servants of the  defense  as  well  as  the  prosecu­ tion, with  the work  product available to both              ' ").

GOVERNMENT ATTORNEY

 

tive. Since the government attorney is in intimate touch with each one of the departments at the operating level, he can often assist in carrying out this policy. I assume, of course, some central control of policy  rather than a diffusion of responsibility for execution among the chief executive, the legislature and independent department heads.34 In my opinion, it is important that the county attorney and state's attorney-as  is  the  case with  the  Attorney  General  of   the  United  States-be  appointed, rather

than elected.35 This view was, as you may recall, the conclusion of the

Hoover Commission, in connection with its apprasial of the department of justice and government attorneys in the United States govemment.:io In New York, the fact that the Attorney General is elected has led to the creation of the substantial office of the Counsel to the Governor and of independent counsel in each of the  many  state departments, bu­ reaus, commissions and authorities. As a result, the administration of the legal policy of New York is not as well integrated as it might be. A sug­ gestion of greater integration of New York State's legal services was made in 1959 by Dr. William  Ronan,  Executive  Assistant to  Gover­ nor Rockefeller, but this and other suggestions for reorganization of the

New York state government have not yet been carried out.37 Theoretically, the best possible situation  would  be to have all govern­

ment attorneys within the office of the government's chief legal officer. Each one of the departments would then turn to this office for legal ad­ vice and the office might well be organized with specialized divisions. The attorney attached to a department of justice  or  its  equivalent  has  a sense of independence and professionalism that be may not have if he is  a single advisor or in a very small legal division of an independent de­ partment.38 Moreover, his service can be more efficiently utilized if he is

 

34 As a matter of governmental policy, another view is sometimes advanced. See, e.g., WALKER, op. cit. supra note 17, at 52: "Administrative fragmentation helps to make the executive agencies more responsive to legislative  wishes and to popular needs; it also inhibits the emergence of an independent center of bureaucratic power based on a rationalized administrative hierarchy."

35 Cf. the  proposal  for  appointment  of  county  attorneys  and the state attorney

general in ME. LEG. REsEARCH COMM., 96TH LEG., FOURTH REPORT ON CoUNn'

Gov'T 8 (1953).

36 REPORT, op. cit. supra note 27, at 3-10.

37 See RONAN, ,REPORT TO  TIIE  GOVERNOR,  PROSPOSED  REORGANIZATION  OP nm

E.xECUTIVE  BRANCH OF _NEW     YORK STATE GOVERNMENT 55-56  (1959); Fairlie,

Law Departments and Law Officers in American Govemmellts, 36 MICH.LR.Ev. 906, 926 (1938): "Election ... makes  [the attorney general]  largely independent of the Governor; and this serves to make the office less effective as an agency for integrating the state administration."

38 Montague, The Office of the  Attorney  General  in  Kentucky,  49  KY.  LI. 194, 201 (1960):  ''Where  the  lawyer  is  not  subordinate  to  an  administrator,  he is more apt to give a  candid  legal  opinion  than  where  his  position  is  such  that he must simply produce an argument for the adminstrator's point of view."

 

part of a larger office since he can be shifted as emergencies and the work load require. This kind of organization is quite possible in a relatively small office such as that in Nassau County. It becomes difficult, if not impossible, in the United States government, where there are tens of thousands of government lawyers and the independent commissions and departments have extensive sµecialized legal staffs. In a state government as large as New York's, some compromise solution is necessary.

At the local level it is sometimes impossible to carry out fully  a scheme of centralized legal services because of the pressures of state and federal aid. For example, I approved our welfare department's hiring its own attorney, since his expense could then be covered by state and feder­ al aid. Had he been put in my department, even though he would have been doing much the same work, such aid might not have been permit­ ted. Requirements for subvention which interfere with sound administra­ tion should be changed.

An example of the advantages of the United States Department of Justice concept and centralization of legal services is that the Attorney General of the United States was recently able to set up a commission to coordinate crime control. He could utilize a large legal staff,  the FBI,  and correction and penal experts, since they are all within his depart­ ment. In New York State's government there are at least ten separate and autonomous agencies dealing with various aspects of crime; local police and district attorneys are independent of state control and badly fraction­ ated; and New York City has five separate and independent district at­ torneys. Partly as a result of the lack of clear-cut responsibility,  New York State lacks a coordinated crime control program.30

At the local level, some informal coordination of legal services of the various municipalities is possible. For example, in Nassau County, where we have hundreds of local independent governmental units, the munici­ pal division of the County Attorney's office will now render legal services to any of them on a contract basis.40

C. Conflicts of interest among clients.

I have already suggested in my remarks some of the ethical difficul­ ties of the county attorney caused by the heightened responsibility he has as a lawyer for reform of the administration of justice and law. Let me now emphasize one further aspect of this problem caused by the mul­ tiplicity of services he renders, the many departments he represents, and

 

39  Compare 1952 NATIONAL  CONFERENCE  OF COMMISSIONERS  ON UNIFORM STATE LAWS, MODEL DEPARTMENT OF JUSTICE ACT 366-398 (1952).

40 Weinstein, A Legal Service Program for Municipalities. 31 AMERICAN COUNTY

GOVERNMENT 30 (1966).

 

 

the fact that he represents the people as well as government. The private lawyer can, within broad limits, attempt to get the best possible result­ from his single client's point of view-letting the adversary system pro­ vide justice. What, however, of the public attorney?

He is tom in a number of ways. Let me give you some examples. Shortly after I took office, one of our negotiators presented me ,vith a proposed settlement in a condemnation case, which was approximately one-third of the value of the land we had taken as indicated by our ap­ praiser's reports. The condemnees were not represented by an attorney. What should I have done? I talked to them on the telephone and dis­ covered that they were an elderly couple who had bought their property many years before and who had no idea of how much it had increased in value. In an extended conversation, I finally convinced them that they were entitled to much more than they wanted. But should I have insisted on paying more than I had to?

In another case, the award of the court seemed  to  me to be too large by several millions of dollars. The condemnation resolutions adopted by the Board of Supervisors, our local legislative body, were exceedingly and unusually favorable to the condemnee, but there was no evidence of fraud. A reversal on the ground of excessiveness of the award was un­ likely. What was a proper course of action? I instituted an extensive col­ lateral attack on the award on the ground that  the favorable  provision was illegal, over the opposition of our Board of Supervisors. We used every procedural device in the book and some created especially for the case. It was clear that we would throw all the County's enormous re­ sources into this litigation. After numerous  motions  and  appeals, when it became obvious that the dispute might go on for many years,  the matter was settled with a saving to the county of some million dollars. Once I told my classes procedure should never be used for delay. Now I wonder, are there exceptions?

Somewhere  in between  those two cases lie the bulk  of  matters where

we insisted that the claimant take somewhat less than our appraisals showed the land to be worth. Condemnees settled and waived interest in order to avoid a long delay before trial and receipt of their money. Is this technique justified even though it saves the taxpayers money? A more appropriate procedure, in my opinion, would be for the County to obtain more thorough and reliable appraisals; they should be revealed to the condemnee, and he should then be tendered the full appraised value plus interest as a matter of due. If the condemnee wants more, be should receive almost the entire appraised value as an advance payment. We should, I  believe,  also pay-as we now do not-for loss of  good  will.41

 

41 See, e.g., 'Just Compensation' and the Small Businessman, 2  Columbia  Jour­ nal of  Law and Social Problems,  March  21, 1966,  p.  1  and  authorities  cited. It is

 

While I was County Attorney I commissioned a study of our con­ demnation procedures by Professor Curtis Berger of Columbia Law School and Professor Patrick Rohan of St. John's Law School. They studied over a thousand of our condemnation awards of the last  few years, and I hope their recommendations will be followed to provide a fairer condemnation system. Already we have made a number of im­ provements, as in the payment of relocation allowances and interest on settled cases. A new system will cost  the county  more  money,  but  it will be more just.

The same problem of fairness applies in the area of torts. Here the matter is more complicated because it is harder to obtain an objective valuation of permanent injuries, or of causal connection, or of negli­ gence. One way of avoiding the problem is to have the county buy in­ surance so that the insurance company's lawyers will carry on the un­ pleasant business of minimizing recoveries. As self-insurers, however, Nassau County saved several hundreds of thousands  of  dollars  each year. Our operation was much the same as that of any insurance com­ pany. Our lawyers took pride in getting the lowest possible settlements and in securing defendants' verdicts in close cases. In a number of in­ stances we won dismissals against widows and orphans who  should, under any sensible system, have obtained  some award.  But in each  one of these cases, we did offer a substantial amount in settlement, and I suppose that the onus must rest upon the attorney for the plaintiff who decided to go for broke. I  would  be much happier  with a system  such  as that suggested by Professor Keeton of Harvard with respect to guar­ anteed payment for injuries. So Jong as we are playing this game by present  rules I  suppose  we owe it to  the taxpayer  to  play  to win.  And I must confess that the negligence litigation game has a pleasure and piquancy all its own. The cost to society and to individuals of  our  fun and games in tort law may, however, be too high.

In some instances our office defended cases I would have  ref used were I in private practice.  But  our client  was bound  to us  by statute  and his position was not so clearly  wrong  that  we could  turn  him  out of our office. For example, our District Attorney seized  the  whole edition of a magazine as obscene although it seemed to me to have less

 

paradoxical that the courts of England and Canada, which have no fourteenth amendment to protect against deprivation of property without  just  compensation, reach a contrary conclusion under statutes which do not specifically require com­ pensation for good will and value of a going concern. IO HALSBURY, LAWS OF ENGLAND §§ 281-287 (3d  ed.);  loss  of  business,  goodwill,  costs  of  removal, value of fixtures, and losses incurred  until  suitable  premises  obtained  must  be  taken into account in assessing compensation. Id. at § 284; Annot.,  1  D.L.R.  1027- 30, 1033-37 (1952) (compensation for similaritems). See also OR0EL, VALUATION UNDER THE LAws OF EMINENT DOMAIN § 75 (2d ed. 1953).

GOVERNM'.ENT ATTORNEY

 

appeal to prurient interest than the average brassiere or perfume adver­ tisement. But when the county was sued before a federal  three-judge court for $100,000 and an injunction, my office defended. We had  a  good procedural defense-the matter should have been left to the state criminal courts. While  we lost in  the  three-judge  court,  we  were able to settle the case when a long stay by Mr. Justice Harlan became a possibility. As a result, the magazines were released with favorable publicity, the district attorney received publicity he considered  favor­ able because it indicated be was against obscenity, an unreversed opinion makes such seizures in the future much less likely, the county was saved  a judgment for damages, and I lost some friends in the civil liberties movement who could not understand that a government official is en­ titled to counsel even if his lawyer is not enthusiastic about the merits of the government position.

There are instances where the position of one of the departments is completely contrary to the position that the attorney feels is legally defensible. In such cases the county attorney should, I believe,  repre­ sent the side he considers to be correct. Special independent counsel should be provided to represent the other side.  Such  an  appointment was made by Chief Justice Stone when he was Attorney General of the United States; he himself argued against the special counsel.42

In some instances the government attorney should confess error in a case in which his government is a defendant. This is the  position  we took in the state reapportionment cases, for exarnple.43 The County Executive was sued as one of the defendants in the New York reappor­ tionment case because our county was malapportioned and he partici­ pates in fixing lines for the state  assembly.  The  Attorney  General  of the state defended the suit so that it was  not  necessary  to  appoint special counsel.

It was in part because I felt  more comfortable  with  an attorney  on the other side that, although I was by statute the sole legal representative of the Board of Supervisors, I  did  not  object  to  the  board's  utilizing its own counsel much more extensively than our county charter in­ tended. The fact that the Republican Board of Supervisors bad an hon­ orable counsel, Harold Collins, one I could deal with on an adversarial basis, eliminated many of the possible conflicts of interest and ethical problems that otherwise would have proven most troublesome. Indeed, more often than not we assisted each other in moderating our clients' positions so that they could, together, move forward in the exciting and essential job of providing good local government.

 

42 MASON, HAlu.AN FISKE STONE, Piu.AR OF nm L\w 167-68 (19S6).

43 WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964).