Some Ethical and Political Problems of a Government Attorney | thgrayson | June 28, 2011


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Some Ethical and Political Problems of a Government Attorney


Jack B. Weinstein


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 government[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 to control by the State Attorney Genera1.[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 business 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.


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 government and to the public; and trying to teach judges and juries-often with as little success as he has in class.

I shall onIy 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 the detailed 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 sum­ mer programs for second- and third-year student law-interns convinced me that good practice and good law school training are closely corre­ lated.[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 govern­ ment attorney must rely upon. Both must be habituated to view their client's disasters with equanimity.


What I would like to speak about primarily tonight are some of the 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 departments; 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 required 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 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 connections. 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 fabric 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 differentiate 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 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 evidence. 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 repeatedly, you may have more faith in him than in a stranger. This psychological verity needs to be controlled to avoid abusive use of government office 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 applied in any government office.

One more matter should be excluded from the field of proper politi­cal 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 prosecution. 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 Profes­sor Walker's monograph on the Maine political system, "the Maine political environment is considered to be fairly 'clean' by most of its citi­zens"[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 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 [limited] 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 ex­amples. 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 uniformly in the county, there were necessarily wide variations and substantial 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 alienate a large bloc of voters. (It is my hope that our new Nassau 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 thorough 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 court.[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, declaring 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 document. This is not to say that a legitimate argument supporting the conclusion reached in the state opinion letter could not have been developed-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.

One good current illustration of this need for the lawyer to stand fust 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 legislative 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 criminal 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 expediency."[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 problem.[26] We did, however, help reform the jail by instituting civil service for jailors and by providing for an appointive head 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 politi­cal philosophy, it is perfectly appropriate that lawyers be appointed who are sympathetic to the administration's point of view and bound by politi­cal 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 interested 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 government.[28] Part-time low-paid district attorneys and county attorneys are 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 assist­ants received from 17,000 to 20,000 dollars a year. The policy against private practice was established by my distinguished predecessor, Bertram Harnett.

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 court.[30] As a United States Attorney General put it more than a hundred years ago, "in the perform­ance 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 mat­ter, 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 re­quest 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 the office. Since the office can speak to the outside world with only one voice, and the county attorney decides the office position, internal differences 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 election 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 dissenter 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 Elections 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 con­trol.[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 executive. 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 appraisal of the department of justice and government attorneys in the United States government.[36]

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, bureaus, 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 Governor 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 tum to this office for legal ad­vice 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 he may not have if he is a single advisor or in a very small legal division of an independent department.[38] Moreover, his service can be more efficiently utilized if he is 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 specialized 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 administration 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 fraction­ated; and New York City has five separate and independent district attorneys. Partly as a result of the lack of clear-cut responsibility, New York State lacks a coordinated crime control program.[39]

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 municipal 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 difficulties 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 multiplicity of services he renders, the many departments he represents, and 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 with 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 appraiser'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 re­sources 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, he 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]

While I was County Attorney I commissioned a study of our condemnation 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 improvements, 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 negligence. One way of avoiding the problem is to have the county buy insurance 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 company. Our lawyers took pride in getting the lowest possible settlements and in securing defendants' verdicts in close cases. In a number of in­stances 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 guaranteed payment for injuries. So long 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 refused 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 tum 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 appeal to prurient interest than the average brassiere or perfume adver­tisement. 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 he 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, represent 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 example.[43] The County Executive was sued as one of the defendants in the New York reappor­tionment case because our county was malapportioned and he partici­pates 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 had an honorable 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.

One of the most important functions of the government's lawyer is to provide a bridge or neutral meeting ground between opposing forces so that the viable compromises which are the hallmark of a functioning democracy can be developed. If the government's attorney is to fulfill this role, there must be no doubt in anyone's mind about his good faith and integrity.


I conclude by repeating that, while the government's attorney is a political figure, he operates within a framework of professional and ethical responsibility that limits what he can and should do. There is no inconsistency between sound ethics and good politics. Indeed, government service, while it furnishes some of the hardest ethical prob­ lems, affords a lawyer many of the greatest opportunities for profession­ al fulfillment.


2 lbid. 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. ATTY GEN. REP. 9. For the powers, duties and salary of the Attorney General, see ME. REV. STAT. ANN tit. 5, §§ 191, 192, 195, 196 199 (1964).

4 See, e.g., COUNTY GOVERNMENT LAW OF NASSAU COUNTY. § 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. institutions, 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).

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. ATT’Y GEN. REP. 4, 9.



12 The summer interns did professional work including research and brief writ­ing 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 condemnation 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.


14 Seasongood, Public Service by Lawyers in Local Government, 2 SYRACUSE L. REV. 210, 222 (1951). Cf. Cowen, The Need for County Legal Departments, 31 AMERICAN COUNTY GOVERNMENT 43, 44 (1966) (suggesting that if the office becomes “embroiled 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 conferred 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. 622, 623 (1938), cited in Mathews, The Communication of Professional Values, 26 Ohio St. LJ. 89, 96 (1965); see also Countryman, The Scope of the Lawyer’s Professional Responsibility, 26 Ohio St. LJ. 66, 71-82, 84-87 (1965). Cf., Paige, The Professor and Politics, 52 AM. ASS’N OF UNlV. PROFS. BULL. 52 (1966) (estimates five thousand academic consultants to government in the Cambridge, Massachusetts area).

16 FLYNN, ‘’You’re The Boss” 25 (1947).

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

18 In some respects the problem is greater in a one-party setting since the isssues 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 00. 1963); NATIONAL MUNICIPAL LEAGUE, SALIENT ISSUES OF CONSTITUTIONAL REVISION 80-114 (1961).


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.” ld. at 31. Maine is the only state in which the executive council is elected by the legislature. Ibid.

22 See C.H.O.B. Associates, Inc. v. County of Nassau, 45 Misc. 2d 184, 257 N.Y.S.2d 31 (1964), aff’d, 22 App. Div. 2d 1015, 256 N.Y.S.2d 550 (2d Dept. 1965), aff’d,16 N.Y.2d 779, 209 N.E.2d 820, 262 N.Y.S.2d 501 (1965).

23 Weinstein, Legal Assistance to the Indigent in Nassau County, 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 THE BAR OF POLITICS 64, 68, quoted in Gunther, The Subtle Vices of the “Passive Virtues”-A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 5 (1964).


27 See, e.g., Seasongood, Should the Merit System Be Used in Making Appointments of Lawyers for Public Service?, 15 U. ClNC. L. REV. 209 (1941); Legal Services and Procedure, REPORT TO THE CONGRESS BY THE COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE 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 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 [5], 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 en­gaging in private practice of law).

30 See, e.g., Note, supra note [5], at 72; Fairlie, Simpson, Law Offices in llIinois, 8 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. . . .”).

31 6 OPS. ATTY. GEN. Office and Duties of Attorney General 326, 334 (1854). (Caleb Cushing to the President).

32 Mathews, The Communication of Professional Values, 26 OHIO 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, 51 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 prosecution, with the work product available to both . . . .’ ”).

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 COUNTY GOV’T 8 (1953).

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

37 See RONAN, REPORT TO TIlE GOVERNOR, PROPOSED REORGANIZATION OF THE EXECUTIVE BRANCH OF NEW YORK STATE GOVERNMENT 55-56 (1959); Fairlie, Law Departments and Law Officers in American Governments, 36 MICH. L. REV. 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. W. 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 administrator’s point of view.”


40 Weinstein, A Legal Service Program for Municipalities. 31 AMERICAN COUNTY GOVERNMENT 30 (1966).

41 See, e.g., ‘Just Compensation’ and title Small Businessman, 2 Columbia Journal of Law and Social Problems, March 21, 1966, p. 1 and authorities cited. It is 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 compensation for good will and value of a going concern. 10 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 similar items). See also ORGEL, VALUATION UNDER THE LAW5 OF EMINENT DOMAIN § 75 (2d ed. 1953).


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


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June 14, 2013

Jack B. Weinstein

attorney general ethics

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