Blaming Lawyers to Cover a Flip-Flop

The Gay City News December 13, 2005 interview with Michael Bloomberg, in which he said he “hopes he loses” at the Court of Appeals on his challenge to last February’s gay marriage victory in Manhattan, was another example of our mayor’s refusal to lead on the issue of civil rights for LGBT New Yorkers. While his attorneys certainly played a role, the Republican mayor both overstated his lawyers’ authority and understated his own. In the interview, Bloomberg deflected responsibility that rests squarely upon his shoulders as chief executive of the city.

The New York State Bar Association Lawyer’s Code of Professional Responsibility explains that when the bounds of the law are uncertain—and gay marriage certainly qualifies as uncertain legal terrain—the actions of an attorney depend on whether the lawyer is serving as an advocate or an adviser. Many lawyers serve as both simultaneously, but the two are different roles. Zealous client advocacy is axiomatic among lawyers, and no one can doubt that both the mayor’s attorneys and counsel for the plaintiffs have conducted themselves as zealous advocates. Furthermore, as the Code states, “An advocate may urge any permissible construction of the law favorable to the client.” So each side’s lawyers were fulfilling their professional duty when they made their arguments in the appeal.

In the lawyer’s role of adviser there is more of a dialogue, and both legal and non-legal considerations—such as public policy—are taken into account. However, as the Code itself states: “[T]he lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for the lawyer.”

Bloomberg indicated that his corporation counsel was mainly responsible for the legal arguments in the city’s appeal of Justice Doris Ling-Cohan’s February decision. He furthermore expressed his discomfort with some of the most offensive arguments made in the appeal, arguments, it should be noted, that were not made to the trial court, namely that New York has a legitimate interest in enhancing the chances that children born of heterosexual procreation are raised by both their parents and protected by their legal union in marriage. He said he was troubled by the offensiveness of some of the arguments, but that it was his lawyers’ “obligation” to use all of the angles that have been cited in other similar cases.

In fact, the mayor’s lawyers were under no such obligation to use those arguments. Their obligation is to zealously advocate for their client. If the mayor intended to make an argument in which his lawyers cite cases that rely on the Book of Genesis, which is what the city presented to the appeals court, that was his decision alone, with the advice of his attorneys, certainly—but he did not have to yield his discretion on that question in the face of his lawyers’ insistence.

Let’s be clear. The mayor had the authority to not appeal at all, and the city clerk would have begun issuing marriage licenses. Instead, he announced an appeal just one day after the Ling-Cohan decision’s publication. That was his choice, not his attorneys’. Corporation counsel has no authority to force those arguments on the mayor, as he clearly suggested happened in his interview with Gay City News. Those arguments came ultimately from the mayor in his role as chief executive, and his attorneys advised him on the consequences of those arguments, and then made them as persuasively as they could in their written briefs and oral presentations.

From the beginning of this landmark case, Bloomberg has had the same decision-making power of any client with a lawyer; that is, he is the boss. The mayor certainly knows how to be a chief executive, as his spectacular success in the private sector proves, which is why his own halting uneasiness during the December interview only exacerbates our community’s frustration and anger about his elusive position.

Our community understands that same-sex marriage is a complex legal and public policy matter, as well as a deeply personal one. But we must first and foremost start off from a position of honesty. It does no good for the mayor to throw up his hands and say, “My lawyers made me do it.” We know better. Bloomberg wishes to “lose” on the marriage case. But all New Yorkers—LGBT and heterosexual alike—can win if the mayor takes leadership in promoting civil equality for LGBT New Yorkers and disavows the homophobic and hateful arguments he has made in court. We can do it together if Mayor Bloomberg wants to come to the table and work with our community.

Gerard Cabrera is a public interest attorney who represents people living with HIV/AIDS. He is the co-president of the Out People of Color Political Action Club and a member of the executive board of the Lambda Independent Democrats.