I am grateful to Professor Lee for the opportunity to comment on this fine set of papers regarding the ethical obligations of government lawyers. These papers shed light on many interesting aspects of serving the government. Professors Shaffer and Lee explore the peculiar challenges to integrity that a lawyer experiences when he has a client who can chop his head off. The challenges are less today, but a lawyer with large student loans to pay may not realize that they are. Professor Hazard points out that government lawyers are government employees with the responsibilities that government employment entails. Professor Green shows that government lawyers may also be public officials with the duty of fairness that all public officials share. These are all important points

Rodes, Robert E.

English

Notre Dame Law School: NDLScholarship

Notre Dame Law SchoolNDLScholarshipJournal Articles Publications2000Government LawyersRobert E. RodesNotre Dame Law School, robert.e.rodes.1@nd.eduFollow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarshipPart of the Legal Profession CommonsThis Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles byan authorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationRobert E. Rodes, Government Lawyers, 9 Widener J. Pub. L. 281 (1999-2000).Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/3042000]GOVERNMENT LAWYERSby Robert E. Rodes, Jr.*I am gratefulto ProfessorLeeforthe opportunity to comment onthis fine set of papers regarding the ethical obligations of governmentlawyers. These papers shed light on many interesting aspects ofserving the government. Professors Shaffer and Lee explore thepeculiar challenges to integrity that a lawyer experiences when he hasa client who can chop his head off.' The challenges are less today, buta lawyer with large student loans to pay may not realize that they are.Professor Hazard points out that government lawyers are governmentemployees with the responsibilities that government employmententails.2 Professor Green shows that government lawyers may also bepublic officials with the duty offairness that all public officials shareThese are all important points.In stressing the obligation of government lawyers to seek justice,Professor Green explicitly, and perhaps the whole panel implicitly,indicates that private sector lawyers have no such obligation.4 Thatview, I believe, must be firmly resisted. Lawyers are not "generallyexpected to pursue their private clients' objectives, even if the truth isderailed or the outcome is unjust."' Or if they are generally expectedto do so, they are not rightly expected to do so. In Indiana, and in anumber of other states, we still take an oath not to "counsel ormaintain any action, proceeding, or defense which shall appear to [us]*Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, NotreDame Law School.I See Thomas L. Shaffer, More's Skill, 9 WIDENER J. PUB. L. 295 (2000);Randy Lee, Robert Bolt's A Man for All Seasons and the Art of DiscerningIntegrity, 9 WIDENER L PUB. L. 305 (2000).2 See Geoffrey C. Hazard, Jr., Conflicts of Interest in Representation ofPublic Agencies in CivilMafters?, 9 WIDENER '. PUB. L. 211 (2000).1 See Bruce A. Green, Must Government Lawyers "Seek Justice" in CivilLitigation?, 9 WIDENER J. PUB. L. 235 (2000).' Green, supra note 3, at 235-36.51d at 235.WIDENER JOURNAL OF PUBLIC LAWunjust. ,,6 This language was adopted by the American Bar Associationin 1908.1 The Pennsylvania oath is differently worded,8 but theSupreme Court of Pennsylvania stated in 1845 that a lawyer violatesthe oath when he consciously presses for an unjust judgment.9At another place, Green contrasts the duty of government lawyersnot to bring "bad" or undeserving civil cases with the duty of privatelawyers, which he limits to not taking frivolous positions. ' It is notaltogether clear to me what sort of case would be bad or undeserving,but yet not frivolous. Whatever such a case would look like, I think tobring it would be a violation of the Federal Rules of Civil ProcedureRule 11 and comparable state rules. Granted, Rule 11, as it has stoodsince 1993, allows lawyers to be creative in their legal contentions aslong as their claims are "nonfrivolous."" But it requires all of theirfactual claims to "have evidentiary support."'2 The version in forcefrom 1983 to 1993 required a pleading to be "well grounded in factand warranted by existing law or by a good faith argument for themodification, extension, or reversal of existing law."' 3 The pre-1983version simply required "good ground to support" the pleading. 4Many states use one of the earlier versions. Pennsylvania, as is oftenthe case, goes its own way. Rule 1023(b) of the Pennsylvania Rulesof Court requires good ground, but adds language about good faitharguments for changing the law." Rule 1024 requires all factualassertions or denials to be verified. 6 I do not believe any ofthese ruleswill permit private lawyers in civil litigation to content themselveswith avoiding frivolity.6 IND. A.D.R. 22.7 CANONS OF ETHICS OF THE AMERICAN BAR ASSOCIATION Oath ofAdmission (1908).8 42 PA. CONS. STAT. § 2522 (1998).9Rush v. Cavenaugh, 2 Pa. 187 (1845).1o Green, supra note 3, at 240-41."FED. R. CIV. P.1 1(b)(6).12Id. (b)(3).11 FED. R. Civ. P. 11 (amended 1993).14 FED. R. CIV. P. 11 (amended 1983).I5 PA. R CT. 1023(b).16 Id 1024.282 (Vol. 9GOVERNMENT LAWYERSA little farther on, Green asks the following: "Must thegovernment's civil litigators... correct or 'confess error,' or, likeprivate lawyers in civil litigation, may they freely encourage andexploit it?""7 I do not believe private lawyers in civil litigation mayfreely encourage and exploit error on the part of the courts beforewhom they litigate. In the first place, I do not see how you can"encourage" an erroneous decision except by advocating it, andadvocating a decision you know to be erroneous would seem toviolate Rule 11 as well as the other rules just discussed. Also, if youknow a decision is erroneous, it must be because there is controllingauthority in the jurisdiction that goes the other way. If suchcontrolling authority exists, a lawyer is obliged by Rule 3.3(a)(3) ofthe Model Rules of Professional Conduct to be candid and reveal it tothe court."8So much for "encouraging" error. How about "exploiting" it? Isuppose you would be exploiting an error if you were to enforce ajudgment that the court erroneously awarded your client. On the otherhand, if the judgment is unjust, you should not have sought it in thefirst place-for reasons I have already stated. If it is just, then youshould be able to take advantage of it as long as it is not beingappealed. But I cannot see why a government lawyer should not beable to do the same.Suppose the judgment is appealed. Can you brief and argue a casefor the appellee knowing for certain that the decision being appealedfrom is dead wrong? Not without violating Rule 3.1 of the ModelRules of Professional Conduct, unless you have a basis for affrmancethat is not frivolous. 9 Rule 11 ofthe Federal Rules of Civil Proceduredoes not apply to proceedings in the appellate courts, but some of thestate counterparts apply to all courts of the state. In any event, youcould not be certain a decision was erroneous unless you were sure itwould be reversed on appeal, in which case it would be a waste ofyour time and your client's money to argue for affirmance.17 Green, supra note 3, at 241.'8 MODEL RULES OFPROFESSIONAL CONDUCT Rule 3.3(a)(3) (2000).-T1d_ Rule 3.1.2000] 283WIDENER JOURNAL OF PUBLIC LAWGreen offers a number ofspecific instances to illustrate the specialresponsibility of government lawyers.2" It is a little difficult to findpersuasive nongovernmental analogies for them, but as far as theanalogies go, they impose the same obligations on the lawyersinvolved.Green's first case is Williams v. Taylor,21 in which a state prisonersought federal habeas corpus on account of the prosecutor's failure tomake proper discovery at the trial or in post-conviction proceedingsin the state courts.' In supporting his claim, Green did not accuse thestate's lawyers of anything that would not have caused a privatelawyer's judgment to be set aside for misconduct under Federal Rule60(b)(3) or a state counterpart.' For instance, one of the decisions inAnderson v. Cryovac, Inc.,24 part of the litigation described in thefamous book A Civil Action,25 set aside a judgment on just thatground: the winning party had failed to make discovery of adiscoverable document. 26 Neither the absence of wrongful intent northe lack of perceptible effect on the outcome prevented the finding ofmisconduct and the setting aside of the judgment.Another case Green discusses is a proceeding brought by lawyersfor the New York City Commission on Human Rights on behalf of awoman who complained of discrimination by her employer.27 As thecase proceeded, the City's lawyers came to believe that thecomplainant was lying and the employer had done nothing wrong.28Green asks the following question:As advocates, was it proper for the city's lawyers to publiclyask the administrative tribunal to credit the formeremployee's testimony and find that the employer actedimpermissibly, even though the lawyers privately concluded20 Green, supra note 3, at 243-56.21 189 F.3d 421 (4th Cir. 1999), aff'd in part and rev'd in part, 529 U.S. 420(2000). See Green, supra note 3, at 243-46.22 Williams, 189 F.3d at 427.2 FED. R. CIv. P. 60(b)(3).24 862 F.2d 910 (Ist Cir. 1988).25 JONATHAN HARR, A CIVIL ACTION (1995).26Anderson, 862 F.2d at 933.27 Green, supra note 3, at 24648.21 Id at 24647.[Vol. 9284GOVERNMENT LAWYERsthat the testimony was probably false and the claim unjust,or, were they required to take the public position thataccorded with their genuine views?'The City's lawyers decided they had to dismiss the case, because aspublic servants they were obliged to seek justice? Green contraststheir stand with that appropriate to a private attorney. He says that "if... they represented the discharged employee-they could ethicallyoffer the questionable testimony in support of a claim they consideredunjust as long as they did not know that the former employee'stestimony was false."'" I disagree.Granted, Rule 3.3 of the Model Rules of Professional Conductmerely pennits refusing to offer testimony the lawyer reasonablybelievesto be false.32 The rule, however, requires refusal ifthe lawyerknows the testimony is false.33 But if the lawyer believes that the Uhisetestimony will lead to an injustice as well as a deception, the oath Ihave already referred to will preclude using it.' And even without anoath, no system, however elaborate, can have it be morally acceptablefor anyone, lawyer or layman, to intentionally perpetrate an injustice.But suppose we just think the discharged employee is lying. Canwe properly deprive her of her day in court-or her day before therelevant administrative tribunal-on the basis of a guess? No, but nomore can the City's lawyers properly do so. Neither city lawyers norprivate lawyers are appointed to be judges. The 1908 Canons ofEthics of the American Bar Association provide that a lawyer'sappearance in a case is "equivalent to an assertion on his honor that inhis opinion his client's case is one proper forjudicial determination."'No more than that should be required of a government lawyer, and noless should be required of a private lawyer.Next, Green presents a hypothetical where a lawyer pursues atime-barred claim and gets a favorable settlement because the29Id at 247.1, Id (emphasis in original).3 MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(c) (2000).'Id Rule 3.3(a)(4).I See supra notes 6-9 and accompanying text35 CANONS OF ETHIcs OF THE AMERICAN BAR ASSOCIATION Canon 30(1908).2000]WIDENER JOURNAL OF PUBLIC LAWdefendant's lawyer does not realize that the statute of limitations hasexpired.36 Green thinks this is acceptable conduct for a private lawyerbut not for a government lawyer. 7 He reports that the American BarAssociation thinks it is acceptable for either. 8 I think it is acceptablefor neither. Deliberately to initiate a time-barred claim is a violationboth of Procedure Rule 1 I and of Conduct Rule 3.1.0 Also, theresulting settlement would be voidable under section 253 of theSecond Restatement of Contracts.4'Green concludes his set of examples with lawyers asked to copewith various forms of misconduct on the part of their governmentalclients.42 He believes, quite rightly, that their responsibility to thepublic precludes simply circling the wagons and defending the officialsinvolved.43 He says "government lawyers must take a firm position infavor of conforming government practices to the law."" But shouldnot corporate lawyers do the same for corporate practices? Iremember being told bythe general counsel of a corporation that moreof his time was spent advocating the law before the corporation thanadvocating the corporation before the law.His point is reinforced by a body of cases that extendwhistle-blower protection to corporate in-house lawyers in the sameway the protection is afforded other employees."5 Model Rule 1.13' Green, supra note 3, at 248.37 d.38 d.39 FED.R CIV. P. 11.'0 MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (2000).41 See RESTATEMENT (SECOND) OF CONTRACTS § 253 (1979).42 Green, supra note 3, at 249-54.43 Id.44Id. at 250 (citing Jack B. Weinstein, Some Ethical andPolitical Problemsofa GovernmentAttorney, 18 ME. L. REv. 155, 163 (1966)).'See, e.g., GeneralDynamics Corp. v. Superior Court, 876 P.2d 487,502-03(Cal. 1994) (en band) (holding that an in-house counsel could bring a retaliatorydischarge claim where such counsel was discharged for following mandatoryethical obligations); Parker v. M & T Chemicals, Inc., 566 A.2d 215, 220 (N.J.Super. Ct. App. Div. 1989) (holding that an employee-attorney may bring awrongful discharge suit against his employer-client); but see Balla v. Gambro,Inc., 584 N.E.2d 104, 110 (IM. 1991) (holding that tort actions for wrongfuldischarge are unavailable to in-house counsel).286 [Vol. 9GOVERNMENT LAWYmSindicates that it is the lawyer's duty to blow the whistle if corporateofficials are acting contrary to the best interest of the corporation, orare engaging in illegalities that might be attributed to thecorporation.' Butthe best interest ofthe corporation qua corporationis to carry out the public purpose forwhich it was chartered. My firstjob after law school was working in the General Counsel's Office ofLiberty Mutual. My superiors made it clear to me from the first daythat it was as much in the interest of the company to pay claims thatwere covered by its policies as to resist claims that were not covered.I do not at all mean by these criticisms to take anything awayfrom the importance of these papers in shedding light on the specialrole of the government lawyer as a public servant. Governmentlawyers are unique in their opportunity to serve the peace, order, andwell-being of their fellow citizens. They are unique in theiropportunity to maintain the democratic accountability of our leaders.But they are not unique in their duty to refrain from perpetratinginjustice. That is the duty of every lawyer-indeed, of every humanbeing.MODEL RULEs OF PROFESSIONAL CONDUCT Rule 1.13 (2000).2000] 287

Government Lawyers

bepress Legal Repository

https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1303&context=law_faculty_scholarship

Government Lawyers

Abstract

Similar works

Full text

Available Versions

Notre Dame Law School: NDLScholarship

bepress Legal Repository