NCJ Number
47632
Date Published
1976
Length
11 pages
Annotation
THE ETHICAL RESPONSIBILITIES OF ATTORNEYS DEFENDING THE GOVERNMENT ARE DISCUSSED, WITH PARTICULAR EMPHASIS ON TECHNICAL TACTICS OFTEN USED BY COURTS AND GOVERNMENT ATTORNEYS TO AVOID TROUBLING CASES.
Abstract
IT IS SUGGESTED THAT AN ATTORNEY, DEFENDING PUBLIC OFFICIALS OR AGENCIES, HAS AN OBLIGATION AS A PUBLIC SERVANT TO 'UPHOLD AND DEFEND THE CONSTITUTION AND THE LAWS OF THE UNITED STATES' WHICH TRANSCENDS THE STATUS AS AN INSTRUMENT OF THE CLIENT. RECENT YEARS HAVE SEEN AN INCREASE IN THE NUMBER OF CIVIL LAWSUITS BROUGHT AGAINST GOVERNMENT OFFICIALS AS A RESULT OF GREATER CITIZEN AWARENESS AND GREATER WILLINGNESS OF THE COURTS TO ADJUDICATE MATTERS PREVIOUSLY CONSIDERED POLITICAL IN NATURE. A FAVORITE AVOIDANCE TACTIC IS TO CLAIM THE PARTY BRINGING THE SUIT LACKS STANDING TO DO SO. IN 1974 THE SUPREME COURT RULED THAT CITIZENS HAD NO STANDING IN TWO CASES SEEKING TO ENFORCE TWO SPECIFIC PROVISIONS OF THE CONSTITUTION. CONSEQUENTLY, THESE ASSERTED CONSTITUTIONAL VIOLATIONS WILL GO UNCORRECTED. LACK OF SUBJECT MATTER JURISDICTION BY THE COURT IS ANOTHER STRATEGY WHICH MAY LEAVE PLAINTIFFS WITHOUT A FEDERAL FORUM TO VINDICATE THEIR RIGHTS. THE $10,000 TEST FOR GAINING A FEDERAL HEARING MAY, WHEN NARROWLY INTERPRETED, EXCLUDE A NUMBER OF POTENTIAL CASES WHERE THE MATTER AT ISSUE CARRIES NO CONVENIENT PRICE TAG (AS IN THE CASE OF GOVERNMENTAL VIOLATION OF BASIC RIGHTS). GOVERNMENT ATTORNEYS MAY ALSO CALL FOR THE DISMISSAL OF A CASE ON THE GROUNDS OF SOVEREIGN IMMUNITY, A CLAIM THAT THE GOVERNMENT MAY NOT BE SUED WITHOUT ITS CONSENT. FEDERAL RULES PERMIT THE GOVERNMENT A 60-DAY PERIOD, AS COMPARED TO 20 DAYS PERMITTED THE NORMAL CIVIL LITIGANT, IN WHICH TO REPLY TO A COMPLAINT. THIS EXCESSIVE DELAY BY GOVERNMENT ATTORNEYS, WHO MAY GAIN EXTENSIONS ON THE 60-DAY DEADLINE, IS ANOTHER TACTIC WHICH MAY WORK TO THE ADVANTAGE OF THE GOVERNMENT. THESE AND SIMILAR TACTICS ARE DEFENDED ON THE GROUNDS THAT THEY PREVENT THE FEDERAL COURTS FROM BEING OVERBURDENED BY LITIGATION. IT IS ASSERTED, HOWEVER, THAT SUCH TACTICS ARE WRONG BOTH PHILOSOPHICALLY AND PRACTICALLY. THE USE OF SUCH TACTICS RUNS COUNTER TO A BASIC ASSUMPTION IN OUR SOCIETY THAT NOT EVEN GOVERNMENT OFFICIALS ARE IMMUNE FROM JUDGMENTS OF THE LAW. IN ADDITION SUCH OBSTRUCTIONIST TACTICS, RATHER THAN CITIZEN LITIGATION, ARE IN PART RESPONSIBLE FOR THE BURDENS OF THE FEDERAL COURTS. IT IS CONCLUDED THAT A VICTORY FOR COUNSEL FOR THE GOVERNMENT REQUIRES MORE THAN A DISMISSAL OF THE CASE: IT REQUIRES A DECISION BASED ON THE MERITS OF THE CASE. AVOIDANCE OF SUCH A DECISION ON TECHNICAL GROUNDS BY GOVERNMENT ATTORNEYS AVOIDS PROPER CONSIDERATION OF THE ATTORNEY'S RESPONSIBILITIES TO ALL THE PEOPLE. NOTES ARE PROVIDED. (JAP)