Moral Consideration And Advising Clients
In your Dec. 31 article on former Corporation Counsel, Michael Cardozo, Cardozo stated that moral considerations should play no part in lawyers, even public lawyers, advising clients ("Enthusiasm as Legal Advocate, Defender of City Never Dimmed").
When asked about Mayor Bill de Blasio's view that the city has a "moral obligation" to settle the so-called Central Park Five case, Cardozo answered, "[i]n civil litigation any lawyer defending a client, private or government, should litigate based on what the law is. To litigate and settle cases based not upon the law, but on a nebulous and abstract standard of 'morality' or 'justice' is not what lawyers should be doing."
Notwithstanding Cardozo's view, which I hope is not shared by all public lawyers, who, in a sense, lest they forget, represent the public, Rule 2.1 of the Rules of Professional Conduct states, "[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, psychological, and political factors that may be relevant to the client's situation."
Prior to President Franklin D. Roosevelt's 1940 decision to transfer 50 destroyers to Great Britain so that Britain could defend itself against the Nazi menace, then-Attorney General—and later Supreme Court Justice—Robert Jackson advised Roosevelt, based upon moral and political considerations, that the president had the unilateral authority to transfer the destroyers notwithstanding significant contrary legal authority, namely, the 1917 Espionage Act, the 1940 Walsh Amendment and the 1940 Vinson Amendment.
I believe that history looks favorably upon Jackson's advice.
It is indeed troubling that any public lawyer, in this case the chief civil lawyer for the City of New York, takes the position that lawyers should not bring to a client's attention moral considerations when advising a client, despite the Rules of Professional Conduct specifically permitting an attorney to do so. If even lawyers shy away from providing advice to elected officials based upon sound moral considerations, who will?
The author is a member of
the Committee on Professional Ethics of
the New York County Lawyers' Association
and an adjunct professor at St. Francis College.