Government Lawyers Research Articles

The ‘Unique Role’ of Government Lawyers in Canada

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

Hired Guns and Ministers of Justice: The Role of Government Attorneys in the United States and Israel

What is the role of a government attorney who represents a government agency on judicial review? Most academic literature in the United States (US) advocates the ‘hired gun’ model in which the role of the government lawyer is no different from that of a lawyer who represents a private client (although some academics and government lawyers disagree). The prevailing view in Israel is that government lawyers are ‘ministers of justice’, who owe a primary obligation to the public interest rather than to the client agency. This difference is attributable both to fundamental differences in legal culture between the US and Israel as well as to unique features of the Israeli system of judicial review.

Hired Guns and Ministers of Justice: The Role of Government Attorneys in the United States and Israel

What is the role of a government attorney who represents a government agency on judicial review? Most academic literature in the United States (US) advocates the ‘hired gun’ model in which the role of the government lawyer is no different from that of a lawyer who represents a private client (although some academics and government lawyers disagree). The prevailing view in Israel is that government lawyers are ‘ministers of justice’, who owe a primary obligation to the public interest rather than to the client agency. This difference is attributable both to fundamental differences in legal culture between the US and Israel as well as to unique features of the Israeli system of judicial review.

The Presidential Statutory Stretch

This paper, prepared for a Fall, 2015 conference in honor of Professor Harold Bruff, argues that, in certain circumstances, a "statutory stretch" in defense of a presidential initiative may be both justified and more protective of the rule of law than would be bolder claims of exclusive executive authority under Article II. Such a rhetorical strategy may be superior in preserving an ethos of legal accountability within the executive branch and implicitly invites Congress to respond with legislative change if it disapproves the presidential action. It is a strategy that should be reserved, however, for truly exigent circumstances in which the Administration is willing to expose its argument to public scrutiny. Government lawyers assisting in the "stretch" should insure that their clients understand the vulnerabilities to their argument and should not knowingly offer weak arguments to avoid legal constraints aimed at avoiding grievous harm to individuals.

Can Government Lawyers Save Us? A Comment onLawyering for the Rule of Law

The expansion of various constitutional models of judicial review around the globe has already received scholarly attention pointing to the ways in which courts operate in context. 1 Both liberal and non-liberal democracies have relied on judicial review as a vehicle not only to resolve disputes but also as a means to partake in shaping public policies. 2 The engagement of courts in sociopolitical issues has been associated with the emergence of litigious culture that has transformed sociopolitical conflicts onto legalistic language and constitutional discourse. 3 Courts tend to act strategically in their desire to become prominent public institutions. Accordingly, they construct various legal arguments that propel their ambition to enforce policies that they are interested to legally promote. On the contrary, the general public, namely—private litigators, non-governmental organizations (NGOs), social movements, and different state’s agents appeal to courts in order to incite them to get involved in legal political processes. 4 Such a cross-national phenomenon, notwithstanding the availability of empirical studies that point to the interactions between courts and litigators, is relatively limited. Yoav Dotan’s detailed and carefully crafted book 5 assists to fill this gap, while illuminating the Israeli Supreme Court, the most overloaded Supreme Court in the world and its interaction mainly with one department, the office of the Attorney General and its governmental lawyers.

The Key Role of Government Lawyers: Discussion ofLawyering for the Rule of Law

The Key Role of Government Lawyers: Discussion of<i>Lawyering for the Rule of Law</i>

Revisiting the Client Conundrum: Whom Does Lawyer for a Government Represent, and Who Gives Direction to that Governmental Lawyer?

The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal attorney Wayne Witkowski that focuses on the issue in Washington State. This paper reviews the key professional responsibility rules and Washington cases that affect the analysis, and updates Witkowski’s work with a discussion of Goldmark v. McKenna, Seattle v. McKenna, and various other materials. It observes that Washington State, like many states, follows the “entity model” of identifying public lawyers’ clients. That means that the governmental entity itself is the client — the State, a county, or a city, for example. But within that model, it is still necessary to identify the “duly authorized constituent” or “representational authority” who may serve as the voice of the client for an attorney. Who that authorized representative is will depend in large part on the situational facts and the relevant statutory framework. In most circumstances a lawyer for a governmental entity (including an elected law officer) should look to another person as the authorized representative of the client for policy direction. In narrow circumstances, usually determined by statute (or by charter in the case of a city attorney), the elected law officer will himself or herself be the authorized representative of the governmental client. While on a day-to-day basis we continue to think of the relevant government agency through its duly authorized constituent, as the “client.” But we should keep in mind that usually the entire governmental entity is the ultimate client.

The civil servant’s role in the implementation of constitutional rights

This article examines the role civil servants play in ensuring that politicians fulfil their constitutional obligations. Scholars have not generally identified civil servants as a positive force in constitutional implementation. Rather, the literature tends to criticize the emergence of civil servants, and government lawyers in particular, as new drivers of the policy process. Taking the Canadian policy process as my starting point, I push back against this criticism and suggest that civil servants, legally trained and otherwise, are uniquely positioned to insist that constitutional implementation be an explicit policy focus.

The DOMA Sideshow

In 2011, an enormous outcry ensued when the law firm of King & Spalding (K&S) abandoned the Republican leaders of the House of Representatives in U.S. v. Windsor, the case in which the Defense of Marriage Act (DOMA) was struck down. Paul Clement, the star litigator in charge of the case, resigned from the firm and published a letter accusing it of caving in under pressure from gay rights groups, which organized a campaign to convince the firm to withdraw. A chorus that included law professors, government lawyers, editorial boards, pundits, the incumbent Attorney General, and a sitting Supreme Court Justice joined him in condemning K&S. Even though many of these speakers opposed DOMA — and the Attorney General had refused to defend the statute in-house — they praised Clement for standing by the Bipartisan Legal Advisory Group (BLAG) heroically and accused the LGBT community of bad behavior. By attacking K&S, they argued, gay rights groups had undermined the civil justice system, which depends on zealous advocacy for all sides. These groups were also said to have endangered vulnerable clients by legitimating the use of a tactic that would make it harder for them to find lawyers. Clement had bravely set an example for all lawyers by steadfastly supporting a client under siege. This Article argues that both the criticisms heaped upon K&S and the LGBT community and the praise lavished upon Clement were mostly unwarranted. Clement was not shown to be a hero, that is, a person who bravely incurs a serious risk of personal loss for the benefit of another. K&S’s action was proper because it withdrew without harming BLAG, because it had no duty to remain engaged, and because it was a poor fit with BLAG. The firm can legitimately be criticized for having allowed Clement to jump the gun by signing the contract to represent the House of Representatives before the firm’s new matter review process was completed. And having done that, the firm can also be criticized for allowing business concerns that were known or predictable in advance to influence its decision to withdraw. But in volume and intensity, the condemnations that were heaped upon K&S were excessive. Finally, the actions of the gay rights organizations threatened neither to undermine the civil justice system nor to make legal services harder for vulnerable clients to obtain. The fact that K&S was engaged by a client to handle a litigation matter afforded no reason for gay rights advocates to refrain from holding the firm accountable for its engagement to BLAG. This Article does not criticize Clement for remaining loyal to BLAG. It does contend that his did something ordinary, not something heroic.

'Lost' Clerks of the White Court Era

While studies of early Supreme Court clerks have focused on the scholarly Justices (Horace Gray, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo) who hired clerks from elite law schools and mentored them on to successful careers after one or two terms, most Justices in the White Court era employed private secretaries, who, although graduates of local D.C. law schools, performed mainly clerical work and often stayed with their Justice for many years before becoming government lawyers. Wide variations in tenure, promotion, and remuneration existed for the White Court era clerks while they served the Supreme Court.

Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies

From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.

The Quality of Legal Education in Russia: The Stereotypes and the Real Problems

The paper explores the three key issues that are often put forward as the main problems contributing to reportedly insufficient quality of legal education in Russia: superfluous number of law schools, lack of practical preparation of students, and lack of teaching of professional ethics. It is based on a research project that the Moscow office of PILnet conducted in 2010–2012, having interviewed over 130 legal professionals in four Russian cities – commercial and non-profit lawyers, government lawyers, law professors, law school administrators and students – to analyze their views and attitudes as to what defined the modern Russian lawyer and how the legal education system responded to the needs of the profession and the society.

La Tipicidad de los Delitos contra los Derechos de Autor y los Derechos Conexos

El aumento en la comisión de los ilícitos penales contra los Derechos de Autor y Derechos Conexos, se ha producido la mayoría de veces por el desconocimiento en la materia por parte de algunos de nuestros operadores de justicia, así como por la forma en que regula la acción penal el nuevo Código Procesal Penal; al calificar la acción de los delitos de la materia, como delitos de acción pública a instancia particular, lo que implica que de no existir denuncia por parte de los titulares de los derechos, el Ministerio Público no puede actuar de oficio. No cabe duda que esta regulación ha sido un retraso en la protección de los derechos en referencia, no obstante que el Estado se ha comprometido al firmar y ratificar acuerdos internacionales sobre la materia, como el Acuerdo sobre los Aspectos de Propiedad Intelectual relacionados con el Comercio (ADPIC). DOI: http://dx.doi.org/10.5377/lrd.v34i0.1744 Revista de Derecho, Vol. 34, Nº 1, Año 2013: 5-25

Ethics, Morality, and Disruption of U.S. Immigration Laws

Immigrants and immigrant rights advocates knew we were in trouble when a Ku Klux Klan “knight” called for shooting unaccompanied children (UACs) arriving at the border and the Obama administration expedited removal proceedings of UACs and children arriving at the border with other family members. Indeed, the Loyal White Knights of the Klan advocate a “shoot-to-kill” border policy, and one North Carolina Klan leader said the policy should apply to UACs: “If we pop a couple of ‘em off and leave the corpses laying on the border, maybe they’ll see we’re serious about stopping immigrants.” Although the White House initially labeled the influx of UACs an “urgent humanitarian situation,” the Department of Homeland Security (DHS) and Department of Justice responded by sending a “surge” of immigration judges and government attorneys to the border to start deportation hearings immediately, while simultaneously sending the message to immigration courts around the country that UAC-related cases should be prioritized.

Specificities of Managing the State Shares in Corporations of Uzbekistan

This paper examines the issues of managing the state shares (block of shares) in corporations of Uzbekistan. There studied the specificities of establishment of the corporations, including the ones with state sharing in the privatization process of state enterprises. There also specified the essence of state shares management, revealed the role, duties and rights of state representatives, government attorneys and proxy managers of state shares in the corporations, researched the criteria for valuation of efficiency of managing the state shares, presented the suggestions and recommendations on improvement of the current system of state shares management in the corporations. Keywords: management, state share, block of shares, corporations, joint-stock company, privatization, state representative, government attorney, proxy manager. One of the common forms of organizing business activity in Uzbekistan is corporations i.e. joint-stock companies and limited liability companies. During the period of the former Soviet Union, the state ownership was dominating in the country's economy, and the state-owned enterprises were the main form of company. With the attainment of national independence and the beginning of market reforms, establishment of corporations, particularly of joint-stock companies, started on government's initiative together with the processes of privatization of state-owned enterprises. In the initial stages of privatization, many state-owned medium-sized and even small enterprises were transformed into joint stock companies. However, the practice has shown that the shareholding form of business organization is the most suitable for the large-scale production. Therefore, later on as the privatization processes developed, medium-sized and small enterprises were transformed into limited liability companies and private enterprises. The joint-stock companies were established mainly on the basis of large state-owned enterprises and companies. In the 90s in most joint-stock companies, especially in large ones, there retained a certain sharing of the government in their authorized capital. As the privatization processes developed, the reforms on restriction of state intervention in the economy and on expansion of private sector implemented, a number of corporations with the state sharing has gradually decreased. Thus, a number of joint stock companies with state shares decreased 9.8 times from 2000 to 2013. When the enterprises are incorporated, the transformation of a property happens. The government, like any other shareholders, does not own the property in its natural-material and cash forms but shares. The government in this case should have the same rights as other shareholders (Butikov, 2002, p. 63). World practice of economic development shows that the government always takes specific part in business activity of corporations. The state participation in the capital of corporations is typical even for the countries with developed market economy. In this case, determination of an optimal level and formation of an effective system of state participation in the share capital has always remained a key issue for economic researches.

Beyond Nifong: The Government Lawyerrs Ethical Obligation in a Civil Action

The facts that led to the downfall of Durham North Carolina’s district attorney, Mike Nifong, are well documented. In essence, Nifong continued to prosecute three Duke University lacrosse players for an alleged rape, even after he became aware of evidence that showed that DNA tests exonerated each defendant. The public outcry was unprecedented when it learned of his persistence in prosecuting these students. Moreover, in an astounding display of temerity, the attorney general for the State of North Carolina took over the case from Nifong and immediately called a press conference to drop all charges against the Duke lacrosse players. Eventually, the outrage over Nifong’s actions led to his rather swift suspension and the eventual revocation of Nifong’s license to practice law in North Carolina.The indignation over Nifong’s conduct was well justified. Not only did he violate numerous ethical standards of the North Carolina state bar, he violated two of the bedrock ethical principles of a government lawyer, early termination of meritless proceedings and full disclosure. But, beyond Nifong and the higher ethical duty imposed on criminal government lawyers, this article examines whether there exists a comparable higher ethical duty upon civil government lawyers to cease litigation and provide full disclosure. This article concludes that a government attorney in a civil proceeding has the same ethical obligation to fully disclose and cease meritless litigation as the government attorney in a criminal proceeding.

The National Security State: The End of Separation of Powers

On March 11, 2014, Senator Dianne Feinstein went to the U.S. Senate floor to announce that the CIA had sought to sabotage a Senate Intelligence Committee investigation of torture and unlawful detention.… Already, government lawyers had convinced courts that there should be no judicial review of torture and unlawful detention. Such review, it was argued, was beyond the competence of judges, and the executive branch of government needed unfettered discretion to deal with national security threats.… The net result is that the CIA, the NSA, and all the other executive branch agencies engaged in surveillance, detention, torture, rendition of suspects, and even targeted killings by drone strike have claimed immunity from accountability by either of the two other branches—legislative and judicial. What they have done, why they have done it, and why their actions are or are not lawful—all of this has retreated behind a wall of secrecy. The claim made by government lawyers that there has been and will be legislative oversight turns out to be false.This article can also be found at the Monthly Review website, where most recent articles are published in full.Click here to purchase a PDF version of this article at the Monthly Review website.

An International Law of Privileges

<section class="abstract"> The statutes and rules governing proceedings before the International Court of Justice, World Trade Organization panels, and International Center for the Settlement of Investment Disputes tribunals are silent on the question of evidentiary privileges. Moreover, there is no established international law of procedure and evidence to which the disputing parties and tribunals can refer. Yet questions regarding privileges have been presented to them, and as the number of cases brought before them increases, such questions are likely to become even more common. How should international tribunals decide claims of privilege presented to them? This article will argue that there are two approaches to answering this question: (i) a choice of law approach, by which the law of a domestic jurisdiction is selected and applied; and (ii) an approach which would lead to the development of international rules of privilege. The latter approach is favoured because privileges reflect the public policy of the state that creates them and international tribunals do not have a mandate to enforce the public policies of any one state. On the contrary, their mandate is to enforce the policies of the international community as reflected in international law. This is not to say that there is nothing to be learned from domestic rules of privilege. Accordingly, the article will explore how domestic rules can help in establishing an international law of privileges. It will examine rules and policy rationales adopted by a few representative jurisdictions for the protection of types of information that are likely to be relevant for the adjudication of disputes brought before international tribunals, such as classified government information, communications involving in-house counsel and government lawyers, and proprietary information. </section>

Father, son, and Constitution: how Justice Tom Clark and Attorney General Ramsey Clark shaped American democracy

When Supreme Court Justice Tom Clark resigned his seat on the bench at the youthful age of 67 after 18 years, his decision was unique in the annals of Court history: he was leaving so that his son Ramsey, just nominated as Attorney General, could assume the job Clark himself had once held without conflict of interest. As Alexander Wohl shows, Tom and Ramsey Clark had a profound impact on American law and society. For nearly three quarters of a century, they influenced presidents, policies, and legal rulings, during careers that tracked closely with some of the most significant and controversial episodes in modern American history. Highlighting their consistent effort to balance individual liberties with government power, Wohl examines how their work reflected the tensions that continue to resonate in today's legal and policy battles. The two men, however, evolved quite differently. As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights-government power spectrum. A unique approach for understanding our nation's history during the second half of the twentieth-century, Wohl's study addresses such salient issues as civil rights, free speech, government surveillance and rights of privacy, presidential power, and the role of judges in interpreting the Constitution. The Clarks' lives and careers also offer a veritable who's who of 20th-century American law and policy: from Tom's close relationships with Harry Truman, Lyndon Johnson, Sam Rayburn, and Earl Warren, to Ramsey's connections with Robert Kennedy, LBJ, and Martin Luther King Jr. Both men befriended and battled J. Edgar Hoover and both were targets of political attack--twenty years apart--by Richard Nixon. At its fundamental core, however, Wohl's book presents a moving and intimate portrait of a unique father-son relationship that endured through triumph and tribulation and that should appeal to anyone interested in how the personal and the political intertwine in a highly public setting.

The Human Rights Act: Ambiguity about Parliamentary Sovereignty

The Human Rights Act: Ambiguity about Parliamentary Sovereignty