October 14, 1999
City Lawyers Let Public Down
By Matthew Diller
When the City’s top lawyer met with the Brooklyn Museum’s board to seek a resolution to the emerging controversy, board members found him so threatening that his visit escalated rather than defused the crisis.
Corporation Council Michael Hess’ actions, which amounted to throwing gasoline on a fire, bring to a head questions about the role of the city’s Law Department.
Government lawyers have a duty to act with scrupulous regard for principles of professional ethics. They are, after all, public servants, not the personal legal team of the President, governor or mayor.
Lawyers fulfilling this responsibility traditionally have exerted a moderating influence on government. When an angry chief executive says “Off with their heads,” the government lawyer has a duty to point out that certain legal principles prohibit summary execution.
When Mayor Giuliani yells “Off with their heads,” it seems no one is suggesting otherwise.
Going beyond the strict letter of the law, wise lawyers know our system of government relies on carefully balanced divisions of authority. When passions run high, they can remind political leaders of the need to respect the independent role of other branches of government.
This wisdom is sorely lacking in city government. The Giuliani Administration has plunged into20one legal morass after another. Courts have ruled against the city in its campaigns against street artists, demonstrators at City Hall, taxi drivers staging protests, marchers in Harlem and advertisers on buses.
The city has also lost cases to a variety of newspapers and government auditors seeking access to information. The mayor has made the City Charter a political football, openly manipulating it for narrow self-serving ends. He has refused to spend money on programs he dislikes, even when the City Council has overridden his veto.
Even more troubling than this pattern of skirting and breaking the law, is the apparent lack of concern about it in city government.
City officials often respond to other branches of government – or members of the public that voice disagreement – with a series of ad hominem attacks that convey a basic contempt for our system of government. Judges who rule against the city can expect scathing name-calling, like invective the mayor heaped on the judges who heard the Million Youth March case.
Private groups that have disputes with the city are, in effect, placed on an enemies list.
This attitude sends a message that rules are made to be broken and if not broken – at least manipulated beyond recognition. Opponents are to be destroyed, not simply defeated.
In this atmosphere, it is not surprising that the Police Department continued to conduct strip searches long after the practice was declared illegal. Or that the welfare department made it nearly impossible for people to apply for food stamps and medical assistance.
In all of this, it is fair to ask, where are the city’s lawyers? Where are the wise men or
women who look out for the long-term interests of New York? Where are the lawyers who provide sound advice rather than a battle plan?
It may be that the Law Department has simply been displaced by a mayor who serves as his own counsel. But recent statements and actions by the City’s lawyers are disturbing. Hess was quick not simply to defend the mayor’s position on the Brooklyn Museum, but to question its administrators? integrity, accusing them of perpetrating a “scam.”
There must be faith in the fairness and integrity of city’s government. The Law Department has a role in nurturing this faith. It is a vital public institution, not a Praetorian Guard for the Mayor.
ABOUT THE AUTHOR
Matthew Diller ia a visiting scholar at the Brennan Center for Justice at NYU School of Law.