"Sleeping with the enemy?" On government lawyers and their role in promoting social change: the Israeli example.

• Author: Ravid, Itay

Among cause lawyers, it is common to characterize government lawyers in negative tones. Both in the United States and in Israel they are often perceived as the servants of the regime, providing it with legal tools to protect its policies. Therefore, government lawyers are often marked as obstacles for the promotion of social change--agents of the status quo rather than agents of change. This Note suggests a different approach. By analyzing the current literature on the role of government lawyers, this Note stresses not only the complexity of this role, but also its relative flexibility, which emerges from its unique structure and its position between the courts, the government, and the public. This flexibility, as will be argued, provides government lawyers with greater capabilities to affect and influence policy. These characteristics may provide incentives for cause lawyers to find ways to cooperate with government lawyers. Through a case study of one department at the Israeli Ministry of Justice (the Israeli High Court of Justice department), the Note provides an example of how working with government lawyers can assist cause lawyers in overcoming some of the inherent obstacles in traditional cause lawyering strategies. By integrating innovative mechanisms of cooperation into these strategies, cause lawyers may increase their potential success in promoting social change. This case study functions as both an example and a challenge: an example of how cooperation between cause and government lawyers may better serve the public interest, and a challenge for cause and government lawyers in other jurisdictions around the globe aiming to achieve similar goals.

INTRODUCTION: GOVERNMENT LAWYERS AND SOCIAL CHANGE--OPPOSITES ATTRACT? I. GOVERNMENT LAWYERS--DEFINING AND REFINING A. The Source of Solicitor General Attorneys' Strength 1. The Solicitor General as a Repeat Player 2. The Solicitor General as an Agent of the Court B. Complexities (OR) Schizophrenia as a Source of Growth C. Interim Summary--The Strength of the Solicitor General Attorneys II. THE SOLICITOR GENERAL ATTORNEYS--THE ISRAELI COUNTERPARTS A. Relevant Background B. The HCJ Department at the Israeli Attorney General, The Ministry of Justice III. THE HCJD IN REAL LIFE. A. Settlements as a Leading Narrative--Facts B. Settlements as a Leading Narrative--Examples 1. Pre-trial Settlements 2. Post-trial Settlements IV. SETTLEMENTS AS A LEADING NARRATIVE--CONTRIBUTION TO THE FIELD OF SOCIAL CHANGE A. Legislative Cause Lawyering--Advantages and Obstacles B. Coping with the Obstacles--How Can the HCJD Attorneys and the Pre trial Settlements Mechanism Assist in Executing the Legislative Lawyering Tactic C. Impact Litigation Lawyering--Advantages and Obstacles D. Coping with the Obstacles--How Can the HCJD Attorneys and the Post-trial Settlements Mechanism Assist in Executing the Impact Litigation Lawyering Tactic E. Some Caveats V. FINAL THOUGHTS Introduction: Government Lawyers and Social Change--Opposites Attract?

" When I am in contact with the High Court of Justice Department (1) members ... I feel that I am talking to people that are similar to myself more or less, in our basic conceptions as to what is law and to what we are striving to as the public interest ... I have full confidence in them." (2)

It would not surprise me if some eyebrows were raised while reading this quote, coming from an Israeli cause lawyer, who represented Palestinian petitioners in the Israeli High Court of Justice (HCJ) during the days of the first Intifada. (3) How, one may ask, can a cause lawyer fighting for the human rights of Palestinians in the occupied territories consider government lawyers, representing the occupying regime, to be a reflection of his own conceptions of law and the public interest?

This puzzling question corresponds to a controlling narrative regarding government lawyers in the writing on law and social change. According to the prevailing scholarly conception, government lawyers are mainly perceived as "legal bureaucrats," (4) executing and fulfilling their clients'--the executive or presidential branch--social and political agendas. Therefore, it is not uncommon to characterize them as agents of the status quo rather than agents of change. (5).

However, this depiction of government lawyers is not shared by all scholars, as emphasized in some studies analyzing the strengths and weaknesses of government lawyers' distinct position, standing at the intersection between the government, the courts, public interest lawyers, and the general public. (6)

Although it is hard to draw a clear conclusion from the literature in the field, it seems that most scholars would agree that at least one characteristic controls the work of government lawyers: what I will define as a unique form of flexibility that stems from a unique form of complexity. This form of complexity has two dimensions: first, complexity in shaping the normative guidelines of their work; and second (and subsequently), complexity in forming coherent and standardized patterns of conducting their duties. As I will elaborate later, these complexities bear distinct shape and size in accordance with the specific role of government lawyers in the legal-political equation and their connections to the political leadership of a given legal system.

I wish to offer a way to look at these complexities and flexibilities as advantages--tools for strengthening the role of government lawyers in bringing about social change. Through a case study of the Israeli High Court of Justice Department (HCJD), which is part of the Israeli Attorney General's Office, I will identify some advantages of the position held by the lawyers at the department, which may support, and even complement, some "classic" public interest advocacy strategies. (7) Moreover, I would claim that the inherent characteristics of HCJD attorneys may assist cause lawyers in coping with some of the weaknesses of those advocacy strategies. Particularly, through the analysis of the Israeli case study, I will draw general conclusions regarding the limitations of government lawyers and the effect these limitations may have on their role as agents of change.

Two important remarks should preface the discussion. First, countries differ in the ways in which they have shaped and defined the role of government lawyers in their legal system. This Note will focus on the Israeli legal system because it shares conceptual similarities with the U.S. system regarding the definition and features of "government lawyers." Obviously, there are still meaningful differences between the countries, but for purposes of this Note and its main argument, the shared similarities are sufficient for providing a basis for comparison. Second, government lawyers can be generally characterized in both countries as a group of legally-educated public servants who fulfill a continuum of roles, from prosecuting and bringing enforcement actions under statutes, to giving advice to administrators on the law, to representing government agencies in courts. (8) This Note will focus on the last group and, more specifically, on the attorneys who take the leading role in representing the government before the Supreme Court (the Solicitor General's Office in the United States and the Attorney General's Office in Israel). (9)

First, and as a general theoretical background, this Note will identify some leading narratives in the scholarship aiming to define the unique characteristics of government lawyers, mostly in the U.S. legal system, and particularly regarding the lawyers of the U.S. Solicitor General. Second, this Note will compare the characteristics of government lawyers in the United States and government lawyers in the Israeli legal system, particularly at the HCJD. Third, through examples and current data regarding the department's work, this Note will discuss how the characteristics of the Israeli HCJD attorneys influence the department's actual line of work, especially with regard to the settlement mechanism prevalent in their work. Fourth, this Note will use the example of the settlement mechanism to link the work of the HCJD attorneys to the field of public interest lawyering, while analyzing how using this mechanism may contribute to two of the leading public interest lawyering strategies--impact litigation and legislative lawyering. In particular, this Note will portray the junctions in which the HCJD attorneys may support and promote the success of those strategies. This Note will further point to the complexities and obstacles for the social change movement, which may stem from the collaboration with the lawyers of the department. Lastly, this Note will draw some general conclusions regarding the role of Israel's government lawyers in promoting social change, which have potential implications for other jurisdictions as well.

1. Government Lawyers--Defining and Refining

   As mentioned, Israel and the United States share certain characteristics regarding the role government lawyers in general and the Solicitor General attorneys in particular play in the legal arena. Therefore, we should start with identifying some leading themes in the U.S. literature regarding governmental lawyering, which may serve as a theoretical framework for the discussion of the Israeli legal system.

   An attempt to recognize common characteristics in as huge and diverse a group as "government lawyers" is not a simple task to undertake. In the United States, government lawyers are spread around a few sections of the federal government, which in 1995 employed nearly forty thousand attorneys, (10) by far the biggest law firm in the country. Around one-fifth of them worked in the Department of Justice, while the rest are scattered in various other offices, agencies, and departments of the government.

   The importance of government lawyers does not stem only from their large numbers. In fact, their uniqueness...