Hard Bargaining on Behalf of the Government Tortfeasor: A Study in Governmental Lawyer Ethics

37 Pages Posted: 2 Sep 2005 Last revised: 19 Oct 2009

Date Written: September 2, 2005


In a long-ago case, the author of this article, then an Assistant Massachusetts Attorney General, represented the government defendants in a tort case alleging medical malpractice and wrongful death. The claims were quite strong, and would certainly have been valued at more than seven figures had the defendants been private parties. However, under the state tort claims act, damages were capped at $100,000. Relying on the damages cap, the inevitable risks involved in any jury trial, and the unavoidable litigation costs associated therewith, defense counsel was able to persuade the plaintiffs to settle the case for $87,500. Though such "hard bargaining" would not likely be viewed as being unethical if engaged in on behalf of a private litigant, a closer question is presented under the particular ethical obligations applicable to government attorneys.

This article reviews the conduct of defense counsel in the underlying case, pursuant to both specific standards of conduct that have been applied to government attorneys, as well as a more general theory of appropriate government lawyer conduct. The question is also asked whether an exception should be made to the heightened ethical standards applicable to government lawyers in a case where the conduct of the government defendants, as well as their attorney, did not appear to differ significantly from conduct which might be engaged in by private parties and their lawyers. The article concludes that there should be no exception to the ethical standards applicable to government attorneys in the instant case, and that those ethical standards were likely violated in the circumstances.

Keywords: government lawyers, legal ethics, professional responsibility

JEL Classification: K40, K49

Suggested Citation

Berenson, Steven K., Hard Bargaining on Behalf of the Government Tortfeasor: A Study in Governmental Lawyer Ethics (September 2, 2005). Case Western Reserve Law Review, Vol. 56, No. 2, p. 345, 2005; Thomas Jefferson School of Law Research Paper No. 796886. Available at SSRN: https://ssrn.com/abstract=796886

Steven K. Berenson (Contact Author)

Thomas Jefferson School of Law ( email )

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