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Published online by Cambridge University Press: 29 February 2016
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.
1 Some of these differences are discussed in Michael Asimow and Yoav Dotan, ‘Open and Closed Judicial Review of Agency Action: The Conflicting US and Israeli Approaches' (2016) American Journal of Comparative Law (forthcoming).
2 The pattern of judicial review, as well as the adversarial culture surrounding the process, is similar in US state administrative law. However, this article covers only federal law and practice.
3 28 USC s 516 (1966) (US), which reserves representation of the US to the officers of the DoJ under the direction of the Attorney General, except as otherwise provided by law.
4 About 40 federal agencies and government corporations have authority to employ their own lawyers in litigation by or against the agency: Harvey, James R III, ‘Loyalty in Government Litigation: Department of Justice Representation of Agency Clients’ (1996) 37 William & Mary Law Review 1569Google Scholar, 1573–76; David E Lewis and Jennifer L Selin, Sourcebook of United States Executive Agencies (Administrative Conference of the US 2012) 115–16.
5 American Bar Association (ABA), ‘Model Rules of Professional Conduct’ (1983) r 1.2: ‘… A lawyer shall abide by a client's decisions concerning the objectives of representation …’.
6 Thus a comment to the ‘Model Rules of Professional Conduct’ states: ‘A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf’: ibid, r 1.3, Comment.
7 For discussion of the identification of the client of a government lawyer, see Harvey (n 4). See also Lawry, Robert P, ‘Who Is the Client of the Federal Government Lawyer? An Analysis of the Wrong Question’ (1978) 37 Federal Bar Journal 61Google Scholar (the identity of the client is not helpful in resolving confidentiality issues); Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (Cambridge University Press 2014) 121–24 (doubting whether it is methodologically useful to frame these issues by discussion of the identity of the client).
8 Lanctot, Catherine J, ‘The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions’ (1991) 64 Southern California Law Review 951Google Scholar; Miller, Geoffrey P, ‘Government Lawyers' Ethics in a System of Checks and Balances’ (1987) 54 University of Chicago Law Review 1293CrossRefGoogle Scholar; Macey, Jonathan R and Miller, Geoffrey P, ‘Reflections on Professional Responsibility in a Regulatory State’ (1995) 63 George Washington Law Review 1105Google Scholar, 1115–20; Strauss, Peter L, ‘The Internal Relations of Government: Cautionary Tales from Inside the Black Box’ (1998) 61(2) Law and Contemporary Problems 155CrossRefGoogle Scholar. Similarly, government lawyers in Canada are widely regarded as having the same ethical duties as private lawyers: Dodek, Adam, ‘The “Unique Role” of Government Lawyers in Canada’ (2016) 49 Israel Law Review 23CrossRefGoogle Scholar (criticising this conception).
9 Lanctot, ibid. Each of Lanctot's three questions is framed in the context of a social security case, although we have generalised them so that they apply to the representation of any agency. Lanctot's three-question approach was inspired by a famous article: Monroe Friedman, ‘Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions’ (1966) 64 Michigan Law Review 1469. Friedman took the unflinching view that a criminal defence lawyer must present the strongest possible defence case (including the introduction of perjured testimony if the client insists), even though the lawyer knows that the client is guilty because the client has confessed to the lawyer.
10 n 8.
11 Similarly, see Zacharias, Fred C, ‘Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice’ (1991) 41 Vanderbilt Law Review 45Google Scholar. Zacharias argues that the rule calling on prosecutors to do ‘justice’ (see text at n 65) is incoherent. He argues that the standard means that prosecutors must not prosecute someone whom they believe to be innocent and must ensure that the adversarial system is functioning properly, but no more than that.
12 Macey and Miller (n 8) 1116–18; Selmi, Michael, ‘Public v. Private Enforcement of Civil Rights: The Case of Housing and Employment’ (1998) 45 UCLA Law Review 1401Google Scholar. These authors suggest that government attorneys might choose strategies that would furnish them with litigation experience, maximise their winning percentages, expand agency powers, enhance their reputation, or please future private employers. A fascinating historical account of the turf battles between DoJ lawyers and agency officials during the New Deal discusses the constant political, strategic and tactical conflicts between the two. A continuing refrain was the DoJ's desire to control the government litigation process. Often DoJ lawyers, including the Attorney General, were politically opposed to more radical agency lawyers and other agency officials. When the Wagner Act was passed in 1935, a key provision gave the National Labor Relations Board (NLRB) control over its own litigation, thus precluding the DoJ from interfering with the NLRB's litigation decisions: Peter H Irons, The New Deal Lawyers (Princeton University Press 1982) 11–13, 228.
13 See ABA Formal Ethics Opinion 94–387 (neither government nor private lawyer should disclose that the statute of limitations has run on a client's claim if opposing counsel missed the issue).
14 Strauss (n 8), recounting an incident during his tenure as General Counsel of the Nuclear Regulatory Commission (NRC), in which a DoJ attorney, whom the NRC could not control or persuade, made a bad litigation decision that proved costly to the NRC's regulatory mission.
15 ABA, ‘Model Code of Professional Responsibility’ (1983) EC 7–14.
16 Berenson, Steven K, ‘The Duty Defined: Specific Obligations that Follow from Civil Government Lawyers' General Duty to Serve the Public Interest’ (2003) 42 Brandeis Law Journal 13Google Scholar (discussing a large number of judicial opinions that impose higher duties on government than on private counsel). See, eg, In re Lindsey 148 F 3d 1100, 1109 (DC Circuit 1998) (‘The obligation of a government lawyer to uphold the public trust reposed in him or her strongly militates against allowing the client agency to invoke a privilege to prevent the lawyer from providing evidence of the possible commission of the criminal offenses within the government’); Gray Panthers v Schweiker 716 F 2d 23, 33 (DC Circuit 1983) (‘government counsel have a higher duty to uphold [than private lawyers] because their client is not only the agency they represent but also the public at large’); D'Amico v Board of Medical Examiners 520 P 2d 10 (Calif Supr Ct 1974) (the Attorney General has power to concede constitutional fact issues despite opposition of agency client); Los Angeles v Decker 558 P 2d 545 (Cal Supr Ct 1977) (‘A government lawyer in a civil action has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results’).
17 Freeport McMoRan Oil & Gas Co v FERC 962 F 2d 45, 47 (DC Circuit 1992).
18 Restatement of the Law Governing Lawyers, s 97, Comment f (‘Courts have stressed that a lawyer representing a governmental client must seek to advance the public interest in the representation and not merely the partisan or personal interests of the government entity or officer involved … In many instances, the factor is stressed for hortatory rather than definitional purposes. A government lawyer must follow lawful directions of authorized superiors with respect to the scope and implementation of the representation’).
19 Berenson, Steven K, ‘Public Lawyers, Private Values: Can, Should and Will Government Lawyers Serve the Public Interest?’ (2000) 41 Boston College Law Review 789Google Scholar; also Wald, Patricia M, ‘“For the United States”: Government Lawyers in Court’ (1998) 61 Law and Contemporary Problems 107CrossRefGoogle Scholar; Green, Bruce A, ‘Must Government Lawyers “Seek Justice” in Civil Litigation?’ (2000) 9 Widener Journal of Public Law 235Google Scholar; Weinstein, Jack B and Crosthwait, Gay A, ‘Some Reflections on Conflicts Between Government Attorneys and Clients’ (1985) 1 Touro Law Review 1Google Scholar. In subsequent articles, Berenson has supplied more specific guidance on how government attorneys should vindicate the public interest in their representation of government clients: Berenson (n 16); Berenson, Steven K, ‘Hard Bargaining on Behalf of the Government Tortfeasor: A Study in Governmental Lawyer Ethics’ (2005) 56 Case Western Law Review 345Google Scholar. Also Simon, William H, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1083CrossRefGoogle Scholar. Simon argues that private lawyers should have discretion to defy client wishes in order to promote justice if such decision is economically realistic for the lawyer. Simon would certainly extend that analysis to government lawyers representing agencies: Note, ‘Rethinking the Professional Responsibilities of Federal Government Lawyers’ (2002) 115 Harvard Law Review 1170CrossRefGoogle Scholar.
20 Berenson, ‘Public Lawyers, Private Values’ (n 19) 814–18.
21 See text following n 9.
22 Interviews with Mariano-Florentino Cuellar, Walter Dellinger, E Donald Elliott, William Funk, David Hayes, Gretchen Jacobs, Heather Kennealy, John Leshy, Michael Rappaport and Debby Sivas. We also interviewed other former government attorneys who asked that their names not be used. Notes of the interviews are with the authors. We did not interview attorneys with independent agencies that represent themselves in court. Attorneys who work for the client agency are unlikely to openly defy the wishes of that agency if they wish to keep their jobs.
23 See, eg, Zeppos, Nicholas S, ‘Department of Justice Litigation: Externalizing Costs and Searching for Subsidies’ (1998) 61 Law and Contemporary Problems 171CrossRefGoogle Scholar.
24 For example, in 1993, the Supreme Court dealt with over 1,400 appellate cases, a similar number of cassation cases, and over 1,000 other law suits, apart from the 1,171 HCJ petitions that it disposed of during that year. The number of HCJ cases has been steadily increasing. In 1997 the Court disposed of 1,463 HCJ petitions as part of an overall docket of over 6,800 files. In 2003 the Court disposed of almost 1,700 HCJ petitions and the overall number of files exceeded 11,000: Dotan (n 7) 23–25.
25 Administrative Affairs Courts Law, 2000 (Israel)
26 Yitzhak Zamir, ‘Rule of Law and Civil Liberties in Israel’ (January 1988) Civil Justice Quarterly 64, 73; Dotan (n 7) 54–64. The Attorney General of Israel has acquired ‘extraordinary powers that are perhaps unparalleled in any comparable jurisdiction’, including the power to issue rulings that bind the government: Eitan Levontin, ‘Serving Both the State and the Public: A Brief Introduction and Catalog of Solutions to the Attorney General's Divided Loyalties’, paper presented at the Research Workshop on ‘The Scope of Judicial Review and the Dilemma of the Administrative Record in Comparative Perspective’, The Hebrew University of Jerusalem, December 2014, 26 (on file with authors).
27 For discussion of the functions and practices of the HCJD, see Dotan (n 7) 71–86. See also Ravid, Itay, ‘“Sleeping with the Enemy”: On Government Lawyers and Their Role in Promoting Social Change – The Israeli Example’ (2014) 50 Stanford Journal of International Law 185Google Scholar, 194–99.
28 Dotan (n 7) 71–73. The HCJD does not represent municipalities or public corporations, which are represented by their own lawyers.
29 HCJ 935/89 Ganor v Attorney General 1990 PD 44(2) 485. In the US, on the other hand, prosecutorial and non-enforcement decisions normally enjoy immunity from judicial review: Heckler v Chaney 470 US 821 (1985).
30 Dotan (n 7) Ch II.
31 ibid Ch III.
32 ibid Chs V and VI.
33 ibid 124–32.
34 See references at n 36.
35 Dotan (n 7) 132.
36 HCJ 4267/93 Amitai – Citizens for Judicial Watch v The Government of Israel 1993 PD 47(5) 441, 475. See also Dotan (n 7) 56–59; Levontin (n 26) 28–31. As noted above, the legal opinions of the Attorney General (AG) are binding on the government (n 26 and accompanying text). Of course, one may wonder how the AG can represent the Prime Minister (PM) in court if the AG adopts a legal position contrary to the views of the PM. The HCJ in the Amitai case did not provide a full answer to this question except to indicate that in some cases the PM may be represented by a private lawyer whom the PM would hire. Even in those (rare) cases, the PM's decision to hire a private lawyer requires the AG's consent: Amitai, ibid 17. For a critique of this ruling of the Court see Eitan Levontin, ‘Representation of the State in Court’, PhD Thesis, Hebrew University, 2009, 98–109 (in Hebrew).
37 Dotan (n 7) 127–28.
38 ibid 129–32.
39 ibid.
40 Peter Beaumont, ‘Israel Prize Judges Resign after Benyamin Netanyahu's “Political” Intervention’, The Guardian, 12 February 2015, http://www.theguardian.com/world/2015/feb/12/israel-prize-judges-resign-binyamin-netanyahu-political-intervention; ‘Netanyahu in U-Turn on Ban of Israel Prize’, i24 News, 13 February 2015, http://www.i24news.tv/en/news/israel/society/61001-150213-netanyahu-in-u-turn-on-ban-of-israel-prize-judges.
41 See text at nn 26–29.
42 Ganor v Attorney General (n 29).
43 The creation of the Courts for Administrative Affairs in 2000 alleviated caseload pressures to some extent, although such caseload pressures on the HCJ are still enormous: see text at n 25.
44 During the first Palestinian uprising (Intifada), the number of petitions to the HCJ increased sharply as a result of the many petitions presented by Palestinian residents of the Territories asserting violations of fundamental rights by the military: Yoav Dotan, ‘Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifada’ (1999) 33(2) Law and Society Review 319.
45 Dotan (n 7) 157–71; Dotan, ibid.
46 Dotan (n 7) 71–75.
47 For example, Barzilai, Gad, Yuchtman-Yaar, Ephraim and Segal, Zeev, ‘Supreme Courts and Public Opinion: General Paradigms and the Israeli Case’ (1994) 4(3) Law and Courts 3–6Google Scholar. While the level of public trust in the judiciary has been eroded over the last two decades, it is still significantly relatively higher than the level of trust in political institutions: see, eg, Tamar Herman, ‘The Israeli Democracy Index: A Periodic Check-Up’, The Israeli Institute for Democracy, 9 October 2013, http://en.idi.org.il/analysis/articles/the-israeli-democracy-index-a-periodic-check-up.
48 Dotan (n 7) 45–49.
49 This difference is discussed in Asimow and Dotan (n 1).
50 Camp v Pitts 411 US 138 (1973); Asimow and Dotan (n 1).
51 SEC v Chenery Corporation 318 US 80 (1942); Asimow and Dotan (n 1).
52 Unemployment Compensation Commission of Alaska v Aragon 329 US 143 (1946).
53 Asimow, Michael, ‘Five Models of Administrative Adjudication’ (2015) 63 American Journal of Comparative Law 3CrossRefGoogle Scholar, 7, 13–14. As pointed out in Asimow and Dotan (n 1), the arguments for closed review procedure are much less persuasive in the case of review of informal adjudication and policy implementation, since in such cases there is no well-structured initial decision procedure.
54 HCJ 76-77/63 and 79/63 Trudler v Election Officer 1963 PD 17(2503); Asimow and Dotan (n 1).
55 HCJ 75/76 Hilron v Fruit Council 1976 PD 30(3) 645; Asimow and Dotan (n 1).
56 Asimow and Dotan (n 1).
57 ibid.
58 ibid.
59 HCJ 6163/92 Eizenberg v Minister of Building and Housing 1993 PD 47(2) 229, available in English at http://elyon1.court.gov.il/files_eng/92/630/061/Z01/92061630.z01.pdf; HCJ 1284/99 X v Chief of Staff 1999 PD 53(2) 62; HCJ 3094/93 The Movement for Quality in Government in Israel v State of Israel 1993 PD 47(5) 404, available in English at http://elyon1.court.gov.il/files_eng/93/940/030/Z01/93030940.z01.pdf; Amitai (n 36); HCJ 5853/07 Emuna v Prime Minister 2007 PD 62(3), available in English at http://versa.cardozo.yu.edu/opinions/emunah-v-prime-minister; HJC 8397/06 Advocate Eduardo Wasser v Minister of Defense 2007 PD 62(2) 198, available in English at http://versa.cardozo.yu.edu/opinions/wasser-v-minister-defense.
60 Asimow and Dotan (n 1).
61 ibid.
62 In this respect the function of the HCJD to some extent resembles the French model of judicial review, which is based on reports made to the courts by the Rapporteur and the Commissaire du Gouvernement: L Neville Brown and John S Bell, French Administrative Law (4th edn, Oxford University Press 1994) 102–03. For a comprehensive discussion of the quasi-inquisitorial Israeli model see Dotan (n 7) 134–36.
63 See text following n 22.
64 See Section 2.2 above.
65 ‘Model Rules of Professional Conduct’ (n 5), r 3.8, Comment 1: ‘A prosecutor has the responsibility of a minister of justice and not simply that of an advocate’; ABA, Standards Relating to the Administration of Criminal Justice, Std 3-1.2(c): ‘The duty of the prosecutor is to seek justice, not merely to convict’. Green, Bruce A, ‘Why Should Prosecutors “Seek Justice”’ (1999) 26 Fordham Urban Law Journal 607–08Google Scholar. But see Zacharias (n 11), arguing that the ‘minister of justice’ standard is incoherent.
66 Ryan C Black and Ryan J Owens, The Solicitor General and the United States Supreme Court (Cambridge University Press 2012) 32–34 (The SG often declines to represent views of the government agency that is a party to the case); Strauss, David J, ‘The Solicitor General and the Interests of the United States’ (1998) 61 Law and Contemporary Problems 165CrossRefGoogle Scholar, 169–74 (The SG usually represents the government's institutional interests rather than the political views of the administration in order to preserve the SG's credibility with the Court). See also Lincoln Kaplan, The Tenth Justice: The Solicitor General and the Rule of Law (Vintage Books 1987) 33–50 (The SG enjoys considerable independence vis-à-vis the President and the Attorney General).
67 Marshall, William P, ‘Break up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive’ (2006) 115 Yale Law Journal 2446CrossRefGoogle Scholar, 2453–55.
68 Michael Asimow, ‘Popular Culture and the American Adversarial Ideology’ in Michael Freeman, Law and Popular Culture (Oxford University Press 2005) 606.
69 See n 3.