Q: Is representing the government different from representing large corporations?
A: Yes. While a lawyer, particularly a government lawyer, should always give advice based on what he or she concludes the law to be, and litigate to achieve the best possible result for the client, a government lawyer has to be much more aware of the potential public reaction to a proposed course of action than is the case when a lawyer represents a private client.
Q: How has the Department of Law changed during your tenure? How much of that has been your doing and how much was due to outside forces such as the aftermath of 9/11?
A: The changes in the Law Department over the last 12 years have been due primarily to the leadership of Mayor Bloomberg and the steps he encouraged the leaders of city agencies, including me, to take to improve the operations of their departments. While 9/11 had short term impacts—for example we had to deal with the eight month relocation of our lawyers to 44 separate offices—it did not have a long term effect, other than creating a number of legal issues with which we had to deal and highlighting the need for up to date emergency planning.
Q: What have you done as corporation counsel that you are most proud of?
A: I believe I have continued to professionalize and lead the office into the 21st century by taking steps to improve the office’s efficiency by: restructuring; emphasizing management use of technology and data (including statistics of case trends and lawyer time sheets); holding chiefs of the divisions and their deputies accountable for the work of their subordinates; expanding in-house lawyer training programs; and devising creative programs resulting in a large number of pro bono lawyers working for us.
A proclamation presented to outgoing Corporation Counsel Michael Cardozo by staff committees for “making the advancement of diversity and equality a core mission” and for making the Law Department “a great place to work and serve the people of New York.”
My emphasis on the importance of diversity (which has resulted in an increase of diverse lawyers from 13 percent to 20 percent in 12 years) and staff and lawyer morale has also made the office a stronger and more welcoming place in which to work.
I am also pleased that my encouragement of bar association, pro bono and community service has resulted in increased involvement in those areas by law department personnel.
In the substantive area, in addition to successes in specific matters and law suits, I am proud that we have reduced by 14 percent the amount the city has paid out in judgments and settlements; reduced pending tort matters by over 50 percent; used affirmative litigation to advance some of the mayor’s priorities; limited the use and scope of consent decrees; and encouraged our clients and our adversaries to consult us before litigation has begun with the goal, which we have sometimes been able to achieve, of avoiding litigation.
I am also pleased that I played a part in the successful continuation of the merit selection system for choosing criminal, family and interim civil court judges.
Q: Do you have any regrets?
A: My biggest regret is that this job, which I have loved, is coming to an end.
Q: What is your relationship with the mayor? Does he ever ask your advice on policy in addition to the law?
A: I meet with, or at least speak to, the mayor virtually every day and give him legal advice and case updates on a regular basis. Frequently questions of policy become intermixed with questions of law. But I always try to emphasize which are my policy, as distinct from my legal, views, since my expertise on a policy matter may frequently be exceeded by others.
Q: You have said that it is the role of assistant corporation counsels to advance the interests of the “legal entity” of New York City. At the same time, you have worked to advance the policies of the mayor. Are those the same thing? Have there been situations in which you have had to resolve conflicts between your responsibilities?
A: My client is the legal entity the City of New York. When the law allows the mayor to determine a particular policy, advancing the interests of the mayor and the city are the same thing. When another entity like the City Council has arguable legal authority in determining a particular policy or action there have been occasional conflicts. If those conflicts reach litigation the Corporation Counsel authorizes that entity to be represented by separate counsel.
Q: Have you always been successful in advancing the priorities of the mayor in court?
A: While we have succeeded in most cases, such as challenges against the smoking ban, billboard limits, zoning changes, calorie count disclosure and the borough taxi plan, we obviously have not won every case. The cap on large soda containers and the taxi for tomorrow controversy are two recent examples where thus far the courts have ruled against the mayor; both cases are on appeal.
Q: You have spoken out against consent decrees that hamper the work of government officials. Have you managed to achieve more flexibility for the government?
A: Yes. We have entered into fewer consent decrees than in the past and have limited the scope and length of those decrees we have agreed to. And we have succeeded in narrowing or eliminating long term court orders regulating the city; for example, we were able to vacate over 50 court orders issued over a 25 year period in the McCain litigation that had resulted in the micro management of the homeless system by the courts.
Q: You have been described by your adversaries as a tough, sometimes unreasonable litigator. Is that a fair description? Have you sought to imbue your attitude in your assistants?
A: I take strong exception to my being an “unreasonable litigator.” I do believe that a government litigator on the civil side should aggressively litigate matters on behalf of his or her client, of course within ethical bounds. I have encouraged my assistants to litigate in that manner.
Q: How would you describe your approach to defending the city? Has there been any fine tuning recently of that approach?
A: If the city has done something wrong the sooner the matter is settled the less expensive it will be for the city. On the other hand, if the city was not at fault, or if the settlement demand is unreasonable, the matters may have to be fully litigated and possibly tried. Over time we became concerned that settling many police cases for arguable nuisance value was encouraging the filing of still more lawsuits. So while we still settle some case on which we have potential exposure we have significantly increased the number of police cases that we now try to verdict, with very positive results.
Q: The plaintiffs bar has resisted tort reform. What changes have you been able to make, and what still needs to be done?
A: We were able to persuade the City Council to amend the “sidewalk” law so that owners of all but one, two and three family buildings, rather than the city, now are liable when someone is hurt as a result of a defective sidewalk. That change has resulted in an annual saving to the city of $35 to $40 million. We were also able to persuade the Legislature to amend the so called “collateral source” or “double dipping” law so that any personal injury recovery by a city employee against the city is now reduced by the amount of the pension that individual will receive from the city as a result of the same injury.
Among the many other tort reform changes that still need to be made are reducing the 9 percent interest awarded on judgments, and changing the pain and suffering, joint and several liability and predominant fault laws.
Q: You created a furor with a speech in which you suggested that the state courts are not very efficient and that court officials and judges be held accountable for improving their performance. Have the state courts become more efficient under your prodding?
A: My speech suggested ways in which the courts could improve their operations, including calling for greater accountability of judicial performance, particularly in the area of delayed judicial decisions. I continue to believe that like any large bureaucracy improvements can be made in the operation of our courts, despite the severe financial restraints under which the courts are operating.
Q: How would you assess the performance of the judges who hear the city’s cases?
A: While we of course have occasional issues with some judges, and are disappointed in the outcome of certain cases, overall we have no complaint about the way the city is treated. The overwhelming number of judges who hear our cases are hard working, fair and highly competent.
Q: You are an advocate for the merit selection of judges. Based on your experience with the Bloomberg administration’s selection of Criminal and Family Court judges, what are the strengths and weaknesses of the merit selection system?
A: Voters can’t possibly be expected to know, or be able to assess, the qualities of judicial candidates. The Mayor’s Advisory Committee, composed of a highly qualified and diverse group of lawyers, only a minority of whom are appointed by the mayor, carefully vets the candidates, and gives the mayor three names for each vacancy. Not only does this system enable people without political connections to become judges, but it allows the mayor to know the candidate he will appoint is highly qualified. While any selection system, elective or appointive, can inevitably involve politics, my experience in advising the mayor, along with Deputy Mayor Carol Robles-Roman, on the appointment of judges has convinced me even more of the strength of a merit selection system.
Q: The incoming mayor has been quoted as saying that the city has a “moral obligation” to correct the “injustice” done to the Central Park Five by settling a lawsuit that your department has vigorously defended for a decade. What role does morality or doing justice have in your court strategy?
A: In civil litigation any lawyer defending a client, private or government, should litigate based on what the law is. To litigate and settle cases based not upon the law, but on a nebulous and abstract standard of “morality” or “justice” is not what lawyers should be doing and would put us on a dangerous and slippery slope. We do not believe the defendants in the Central Park Jogger case violated the law and accordingly in our legal judgment there is no basis for settling the claims.
Q: Much of the attention to your department has been in high-profile litigation. What would you like the public to know about the other functions of your office?
A: The office advises on all major development transactions such as the legal advice that led to the creation of the Highline, Governor’s Island, Hudson Yards, Brooklyn Bridge Park and the Science Parks. It approves all city contracts, which total more than $14 billion per year, and negotiates major contracts such as the Citibike contract. The office gives legal advice to the mayor and all city agencies, and drafts proposed city, state and federal legislation. It defends the city in commercial and environmental cases and brings suit in those areas as well. It handles the more than 14,000 workers compensation claims filed against the city annually. It defends all litigation involving the city’s $26 billion real estate taxes, the city’s largest revenue source. And it is responsible for the legal work relating to issuance and refinancing of billions of dollars of New York City bonds.
Q: You and your office have fought hard to preserve stop-and-frisk practices that probably will be reversed under Mayor de Blasio. Was the effort worth it?
A: We fought hard to defend the NYPD against allegations of widespread violations of the Fourth and Fourteenth amendments, allegations that we felt were entirely unfounded. We believe the district court’s decision imposing a monitor on the city is unsupported by the trial record or the applicable law. We are pleased that the Second Circuit has stayed the ruling and are confident that it will be reversed, leaving the executive branch free to modify the NYPD’s practices as it sees fit, consistent with the law.
Q: If you had more time as corporation counsel, what would you try to accomplish? What has been left undone?
A: Running a 700 lawyer government law firm is a constantly evolving effort. With time I am sure more efficiencies could be devised, more ways could be found to attract volunteer lawyers, and hopefully ways could be found to reduce the amount of litigation brought against the city.
Q: How many of your initiatives do you think will survive under a new mayor and corporation counsel? Do you expect your legacy to be a long-lasting one?
A: If my initiatives have been good ones, and I think they have been, hopefully all of them will survive. I will leave to history to determine my legacy.
Q: What advice would you give to your successor?
A: You are about to lead one of the greatest law firms in the city composed of outstanding lawyers. I think you should encourage your lawyers to do the best they can, and stand up for them when they have been unjustly criticized. Of course, you should also continue to strive for even greater efficiencies in the office.
In advising the mayor and his commissioners you should not hesitate to tell them what you understand the law to require, regardless of whether this is the answer they may want. You should emphasize the rule of law and the need for the city to comply with it, and encourage the mayor and his commissioners to consult with you on the legal ramifications of proposed policy changes to avoid unnecessary litigation. And don’t be afraid to settle cases promptly if the city has done something wrong and the settlement amount is reasonable; but continue to litigate, and try the case if necessary, if the case lacks merit or the demands are too high.