The Duty Defined: Specific Obligations that Follow from Government Lawyers' Duty to Serve the Public Interest

Abstract

In Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve Public Interest?, 41 Boston College L. Rev. 789 (2000), author of present Article attempted to provide an academic defense of what previous article described as the public interest serving for government attorneys: namely, proposition that government attorneys have greater duties to serve public interest than their counterparts in private practice. Since that time, additional academic support has been provided for public interest serving role, particularly as applied to civil government lawyers. Nonetheless, public interest serving role for government lawyers remains controversial among academics. At least part of reason for this continuing controversy may be a failure to translate government attorneys' general duty to serve public interest, insofar as civil government attorneys are concerned, into specific rules of conduct that can provide guidance to such attorneys in their day to day work. The present Article makes an initial effort to define rules and principles applicable to civil government attorneys in furtherance of their general duty to serve public interest. A wide range of cases, statutes, and ethics provisions suggest three areas in which special ethical obligations, distinct from those applicable to private practitioners, are emerging for civil government attorneys. These areas relate to government lawyers' duty to represent their clients zealously, confidentiality, and conflicts of interest. Each of these areas is explored, in an effort to articulate particular responsibilities that flow from government lawyers' special duties to serve public interest.