4 - The dilemma of serving two masters

Summary

In the previous Chapter I demonstrated the implications of the changes in the ideology and practices of the HCJD on patterns of litigation. The rise of the model of lawyering for the rule of law inevitably gave rise to professional and ethical dilemmas between the lawyers’ duties to their client agencies and their commitment to broader ideas of the public interest. In the current chapter I discuss these dilemmas. I begin with a theoretical analysis based on three hypothetical test cases that illustrate these dilemmas. Then I examine these test cases from the point of view of various theories on government lawyers’ professional, ethical, and constitutional commitments. The theoretical overview is followed by a detailed empirical description of the views and practices espoused by the HCJD. That is, I demonstrate how the attitude of the HCJD towards this central dilemma changed throughout the 1980s. I then examine possible justifications for the existing model of lawyering in the HCJD from a normative point of view. In the last section I investigate the extent to which the professional ideology of individual lawyers influences actual practices and outcomes in litigation, and do so by using a quantitative analysis of outcomes in litigation in HCJ files.