Excerpted from: Ryan D. Budhu, Understanding the Role of Implicit Bias On, 12 Albany Government Law Review 149 (2018-2019) (307 Footnotes) (Full Document)
In 1869, four years after the end of the Civil War, the New York Times reported on a small controversy in the independent city of Brooklyn. The controversy, stemming from the construction of a canal on Third Avenue, involved questions as to the appropriate role of the Brooklyn Corporation Counsel. The Corporation Counsel and the Mayor of Brooklyn, both elected officials, differed as to the construction's legality, and the mayor sought to hire independent counsel. In response, the Corporation Counsel, asserting that he was the sole entity who could appear in the matter, claimed that “he represented the great body of the citizens, and was independent of the direction or control of the officers of the city.” Ultimately, the New York Times concluded that this “new view of the prerogatives of [a] Corporation Counsel in the State of New York” was a “question of no small importance.”
In 1940, forty-two years after the independent city of Brooklyn and its Corporation Counsel was consolidated into the Greater City of New York, the New York Times reported on another controversy. This controversy, stemming from the revocation of Bertrand Russell's appointment as a professor at City College, involved questions as to the appropriate role of the Corporation Counsel. After a loss in the trial court, the Corporation Counsel, an appointed official, following the Mayor's orders, did not appeal on behalf of the City of New York. The Board of Higher Education, however, did appeal, hiring former United States Attorney for the Southern District Emory Buckner and future Supreme Court Justice John Marshall Harlan as independent counsel. While the Appellate Division ultimately dismissed the appeal, the conflict between the City and the Board once again raised questions about the appropriate role of the Corporation Counsel.
Today, just as it was in 1869 and 1940, the role of the Corporation Counsel in representing the City of New York is a question of no small importance. The public's attention to the work of the Corporation Counsel is limited to a relatively small number of events. These events can range from high profile legal filings, such as the Corporation Counsel's suit seeking $180,000,000 from the United Parcel Services, Inc., for alleged illegal shipment of cigarettes, or large-scale settlements, such as the $41,000,000 settlement of the Central Park Five lawsuit. Occasionally, they can also encompass a sensational trial verdict, such as the $104,700,000 verdict against ExxonMobil for contaminating the City's groundwater. The Corporation Counsel is also extensively involved in City governance, tasked with maintaining, defending, and establishing the rights of the City, its various subdivisions, and its inhabitants in the local, state, and federal legal systems. Outside the ambit of their own specific needs, other City agencies may not be aware of the totality of the Corporation Counsel's legal work for the City.
Given this level of involvement in municipal affairs, questions regarding the Corporation Counsel's role are important, for both government actors and the people they serve. Who is the Corporation Counsel's client? How broad or narrow should the Corporation Counsel define the overall public interest? Is there any role for the Corporation Counsel to seek justice?
These are complex questions, and, in my experience, conclusive answers are not always forthcoming. These questions touch upon concepts such as democratic accountability, municipal bureaucracy, professional responsibility, the public interest, and, ultimately, the interplay between law and justice. This article is limited in scope, intending to provide the preliminary context for a broader discussion as to how the Corporation Counsel can pursue the public interest through varying theories of justice. This broader discussion will result in a greater understanding of the underlying shared public, professional, and organizational values of the City of New York and the Corporation Counsel.
The role of government attorneys in pursuing justice has been the subject of a significant body of scholarship. There is a consensus that, as opposed to private practitioners, government attorneys have a greater responsibility to seek justice. There is, however, a significant lack of consensus as to the parameters of that responsibility. Bridging this divide requires more than what law review articles can provide. It requires an overall consensus within the larger legal community.
In an attempt to provoke a larger discussion, this article will discretely analyze the underlying structures and interests that orient the Corporation Counsel to consider questions of justice. As will be discussed in detail below, the work of the Corporation Counsel requires coordination with many different municipal entities and elected officials. In many situations, this structure tasks the Corporation Counsel with articulating to these entities and officials as to what the law requires and litigating subsequent disagreements about those requirements. This provides the Corporation Counsel with the unique opportunity to articulate issues related not only to law, but also as to the overall public interest. These public interest issues should necessarily involve questions as to justice.
These questions will be framed through the Corporation Counsel's role, not only as an attorney, but also as a government official and as one of the City's gatekeepers. This framework provides a useful baseline from which the Corporation Counsel may consider questions of justice. As will be discussed, this framework also provides sufficient flexibility to be adapted to different client identification models that may be used during the Corporation Counsel's litigation, counseling, or transactional work.
[. . .]
Ryan Budhu is a Judicial Law Clerk in the Eastern District of New York.
Please visit my Patreon Page