Professional
Responsibility
A Real Estate Developer
You are a lawyer in Morgantown, West Virginia. Tom Kegan, of Kegan Development Corporation, the largest real estate developer in the area, seeks your help with a major problem facing his business and has called to schedule an appointment. You have not previously represented Kegan or his firm.
Kegan's firm owns a number of houses concentrated in the oldest section of Morgantown. The houses have recently been designated as historical landmarks under a state statute which empowers municipalities to create Historical Preservation Boards and after public hearings to designate certain properties as historical landmarks. Upon designation as historical landmarks, the houses cannot be destroyed or substantially modified without approval of the Historical Preservation Board. Tom Kegan purchased these residential properties because they are relatively close to the university, could be profitably rented, and eventually replaced by still more profitable student apartments.
Kegan seeks your help to see if there may be some legal means for him to carry out his original plan to demolish an entire block of historical landmark designated houses. He wants to build bungalow style apartments, which will be more attractive to students than the old houses which are expensive to maintain and to keep in good repair.
You are somewhat familiar with the problem, having read in the local Post Sentinel that Kegan made a well publicized presentation before the Morgantown Historical Board in opposition to the historical designation. There was overwhelming public opposition to Kegan's plan, to build student housing in the historical residential part of the city and to destroy the old homes. Indeed, there has been mention around town about a possible investigation of Kegan's political contributions and how they may have figured in his ability to get City Council's approval of a zoning variance in order to build the student housing. You also know that a local group, History is Our Future, has been formed to create public opposition to Kegan's development plans.
Before Kegan arrives for his appointment, you have already read enough in the Post Sentinel to make a reasonable guess that Kegan will seek your help to attack the decision of the Historical Preservation Board. During the course of your preliminary research, you briefly review the state statute under which the Historical Board was created and you conclude that there is a chance, albeit a small one, that the state statute which makes it possible for cities to create historical preservation boards may be unconstitutional. There is a seldom used constitutional delegation doctrine (applicable when legislative bodies delegate authority to governmental agencies) that places limits on statutory delegations of authority. Again, you know the doctrine is seldom invoked, and that the courts generally allow the kind of delegation found in the statute. And yet, the language of the statue may arguably be defective because it does not contain mandatory appeals process requirements in the creation of the historical boards. The municipal ordinance which created the Morgantown Historical Board contains appeal procedures, both for rehearing before the Board, a hearing before City Council, and ultimately, appeal to the Circuit Court.
You theorize that there is a small chance of having the statute declared unconstitutional. Such a declaration would, absent prompt legislative action, allow Kegan to demolish the houses. If a favorable ruling on the constitutional challenge came while the legislature were out of session, there might not be time to revise the defective statute before Kegan got the houses destroyed.
From everything you know about the situation, you assume that the legislature would take the earliest opportunity to correct any errors a court might find in the statute. At the time of its passage, the historical preservation statute was widely applauded in Northern West Virginia, and the entire Morgantown delegation provided strong bipartisan support for its passage in the legislature.
Would you represent the land developer? If so, how would you justify the decision? Does the decision need justification?
Notes
Mark Green, The Other Government: The Unseen Power of Washington Lawyers
269 (New York: Crossman Publishers, 1975):
When and by what standards, should a lawyer refuse to represent a particular client? Can the law-or-hire ethic provide just law?
These questions do not particularly trouble many lawyers, who simply assume that a lawyer is an advocate doing everything possible for his client to prevail, period. It hardly requires explanation that attorneys zealously promote their clients' interests. But less appreciated is the fact that lawyers and law firms have public obligations as trustees of justice. They constitute a "profession" which by self-definition is a "higher-calling" involving more than merely making money. (The word "profession" comes from the Middle English word to "profess," which originally meant taking a religious vow.)
Warren Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078,
1078, 1079 (1979):
There has been recently a resurgence of interest in how the lawyer serves his client. Much of that interest has been occasioned by the indigestibility of the idea that the lawyer is, as it is said, a hired gun.
* * * *
Clients come to lawyers for help with important decisions in their business and private lives. How do lawyers respond to these requests, and how ought they? Doubtless many clients, thinking they know what they want--or wishing to appear to know--encourage the lawyer to believe he is consulted solely for a technical expertise, for a knowledge of how to do legal things, for his ability to interpret legal words, or for the objective way he looks at legal and practical outcomes. It is as if the lawyer were being invited to join the client in a conspiracy of silence; the point of the conspiracy is that in silence neither shall question the assumption that the means can be truly separated from the end and that the end is the client's sole problem and solely his. Such an idea of the lawyer's job seems to relieve him of the ethical responsibility that might be his were he to assume a duty to comment on the wisdom or virtue of what his client is about. I do not think the burden of commenting upon the client's purposes can be so easily avoided. The interaction of lawyer and client is a moral event, whether morals are explicitly broached in conversation or not.
Philosophical Arguments in Defense and Opposition to the Lawyer as Hired-Gun: For philosophical arguments in defense of the notion that lawyers may represent any client so long as their representation is within the law, see: Charles Fried, Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L. J. 1060 (1976); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613 (1986). For a counter-argument to the Fried-Pepper argument, see David Luban, Lawyers and Justice: An Ethical Study (Princeton, New Jersey: Princeton University Press, 1988); William H. Simon, The Practice of Justice: A Theory of Lawyers Ethics (Cambridge, Massachusetts: Harvard University Press, 1997).
Related Scholarly Writing on "Choice" of Clients: William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083, 1094-96 (1988); Andrew M. Perlman, A Career Choice Critique of Legal Ethics Theory, 31 Seton Hall L. Rev. 327 (2001); Teresa Stanton Collett, Speak No Evil, Seek No Evil, Do No Evil: Client Selection and Cooperation with Evil, 66 Fordham L. Rev. 1139 (1998); Jennifer Tetenbaum Miller, Free Exercise v. Legal Ethics: Can a Religious Lawyer Discriminate in Choosing Clients? 13 Geo. J. Legal Ethics 161 (1999).
On Prohibitions Against Discrimination Against Clients Who Belong
to Certain Protected Classes: See: Steven Berenson, Politics and Plurality
in a Lawyer’s Choice of Clients: The Case of Stropnicky v. Nathanson,
35 San Diego L. Rev.1 (1998); Stropnicky v. Nathanson: Choosy Massachusetts
Lawyers, Choose Your Fights With Care!, 33 New Eng. L. Rev. 1 (1998).
