Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?

Abstract

There is a widely shared perception among lawyers, judges, and various public officials that government lawyers have greater responsibilities to serve the public interest than lawyers in private practice. This perception is reflected in judicial opinions, lawyer professional responsibility standards, and numerous other legal writings. Nonetheless, a number of academic critics have attacked what is described here as the "public interest serving" role for government attorneys. This Article provides a defense of the public interest serving role against its critics. While the critiques addressed are diverse, they often make the mistake of importing values from the context of private litigation into the quintessentially public context of government litigation. The Article concludes by offering three examples of the most common forms of government litigation—criminal prosecutions, lawsuits against executive branch agencies, and civil enforcement proceedings—in an effort to demonstrate how the public interest serving role ought to be pursued.