Legal Ethics and the Government Lawyer

All litigation presents to some degree, real though not always perceived, a conflict between each attorney\u27s responsibility as a representative of his or her client and as an officer of the court. Winning the case and seeing that justice is done must be inconsistent goals for counsel on at least one side in a case, if not on both. However substantial this problem may be regarded, it is certainly more complex for counsel for the government. Unlike a private attorney subject to dismissal for ignoring a client\u27s wishes, counsel for the government often has, subject to the variables of intragovernmental relations, the power to take a course of action or accept a settlement contrary to the wishes of the agency officials involved. In addition, government counsel owes some arguable duty to the opposing party, not only as a citizen and taxpayer of the entity for which he or she works, but also because that party seeks to invoke the same laws as those which he or she is committed, in theory if not by oath, to enforce. The relationship of agency officials to government counsel is not that of client and attorney in any ordinary sense, for the identities and desires of those officials may vary with popular opinion, the vote of the electorate, or the whims of their superiors, while the law to which both officials and counsel owe their allegiance remains unaltered. Although attitudes on this problem vary significantly among and within government law offices, the general practice of government counsel seems to be to refrain from making any independent judgment on the merits of the agency\u27s position, or to argue for that position even when the lawyer believes it is wrong