Legal Aid's Chief Attorney Credits Cardozo For Agreeing To Permanent Enforceable Right to Shelter For Homeless Families
TUESDAY, DECEMBER 31, 2013

Reviewing the legacy of Michael Cardozo as the New York City Corporation Counsel, Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told the New York Law Journal that "I give him an extraordinary amount of credit for doing that which no other Corporation Counsel was able to do in 25 years, which was to agree that for homeless families with children, there could be a permanent enforceable right to shelter and a right to have that shelter meet basic standards of habitability."

However, the Law Journal reported that Banks and other civil rights advocates raised concerns about City lawyers not evaluating big cases carefully enough and acceding to the Mayor's and his commissioner's wishes to fight questionable claims.




The New York Law Journal
Enthusiasm as Legal Advocate, Defender of City Never Dimmed
December 31, 2013

This article was reported by Jeff Storey, Joel Stashenko and Mark Hamblett and written by Storey.

New York City was still reeling from the 9/11 attacks on the World Trade Center when Michael Cardozo, a hard-charging Proskauer Rose litigator who specialized in sports law, met with Mayor-elect Michael Bloomberg to discuss the post of corporation counsel.

Cardozo recalled in a recent interview that Bloomberg, a non-attorney who had had little experience with litigation as a CEO, observed that he wasn't sure what the corporation counsel did, but said, "he wanted a good lawyer."

Cardozo said he had been "very moved by 9/11" but "frustrated because I couldn't do anything to help." He said that he had had some experience with the corporation counsel's office as city bar president. After quizzing former holders of the position, he decided to sign up with Bloomberg.

"I knew when I took the job that I would be here for only four years," Cardozo said. In fact, he was so convinced that he didn't even bother to sign up for the city pension system because he wouldn't be around long enough for vesting. (He has since joined the system.)

Twelve years and three terms later, Cardozo, 72, returns to Proskauer, leaving office at the same time as the man who appointed him. He has held the position of corporation counsel longer than any of the men whose images, stretching back to 1683, line a long corridor at the Department of Law.

"I had no idea the satisfaction I would get from this job," said Cardozo, who expressed no regret about the legal positions he has taken or the tactics his office has used in vigorously defending the mayor's policies—aggressive tactics that have been harshly criticized by adversaries in the ongoing stop-and-frisk case.

"Yes, we've had some losses this year, but we've had some very exciting wins," said Cardozo. "The losses are not yet final. …It's been hard, but I don't think it's dampened my enthusiasm for the job." (See NYLJ, Aug. 15, 2005 for an earlier profile of Cardozo.)

Cardozo, who earns a salary of about $205,000, manages an agency of 730 attorneys and 604 support staff. All but 50 or so of the lawyers are litigators.

Overall, the Bloomberg years have been tumultuous ones for Cardozo and the lawyers in the office he led. (See text of two speeches given by Cardozo on the Bloomberg administration's legal legacy in 2012 and 2013.) Some highlights:

  • In the wake of 9/11, the Law Department successfully defended random bag searches by police in the subways, one of numerous cases in which courts sought to strike a balance between public safety and individual rights, including the mass arrests accompanying the 2004 Republican National Convention and the decision of authorities to evict Occupy Wall Street protesters from Zuccotti Park. (See article "The Aftermath of 9/11: Reflections of Michael A. Cardozo.")
  • The agency sued gun shops in several states in an attempt to staunch the flow of illegally purchased weapons to commit crimes in New York City.
  • It played a major role in drafting legislation to ban smoking in public places. The administration also has sought to curb smoking through the rigorous enforcement of cigarette tax laws against enterprises located on Indian reservations.
  • Cardozo's attorneys prepared and successfully defended in court a regulation requiring calorie disclosures on menus in some restaurants. But the Law Department suffered a setback when the Court of Appeals ruled that only the City Council, not the Board of Health, had the power to restrict the sale of soda in large containers.
  • The U.S. Supreme Court, in a case personally argued by Cardozo, cleared the way for the city to collect delinquent tax claims on buildings in which the missions of foreign nations are located. Cardozo also argued and won a major bond case in the Court of Appeals that was worth $2 billion for the city.
  • After three years of intense litigation, city residents in the outer boroughs now can hail "green cabs." But a state judge has put the brakes on the city's efforts to mandate an environmentally friendly "taxi of tomorrow," a ruling that is on appeal.
  • Spurred by Cardozo, the city reached an agreement with the Legal Aid Society that ended 25 years of litigation with the recognition that homeless people with children have the right to decent shelter—part of a general effort to pare down consent decrees that tie the hands of city officials.

Of the 166 cases handled by the office that went to the New York Court of Appeals, the city won 111 (67 percent) and lost 55 (33 percent).

Cardozo has had more than his share of good reviews for his performance in his pressure cooker of a job. He has done "a spectacular job," said Victor Kovner, a partner at Davis Wright Tremaine, who served as corporation counsel in 1990-91. "Overall, he has strengthened what was a fine office when he came into office. He has broadened it in a period of time when the city has been under extraordinary pressures for a variety of reasons."

"I found Michael to be a tough litigator, who likes to fight on behalf of the city as hard as he can to get the best results—and there are not many lawyers I've met who are better than he is. He's a tough adversary," said Paul Napoli, of Napoli Bern Ripka Shkolnik, who represented plaintiffs in some of the 10,000 cases over respiratory and other ailments stemming from the response to the World Trade Center attacks.

"Michael Cardozo is a fine lawyer and litigator and, without question, more than past corporate counsels, he has approached the job like a litigator trying to win cases," said Randy Mastro, a former deputy mayor under Rudolph Giuliani, who is now at Gibson, Dunn & Crutcher.

"He's a lawyer's lawyer, meaning he is knowledgeable about the law," said Norman Siegel, the former director of the New York Civil Liberties Union who now is a principal at Siegel Teitelbaum & Evans. "He is smart. When he was in court about the GOP convention he was articulate."

"Cardozo overall was a good corporate counsel," Siegel said, willing to resolve some issues where other corporation counsels might have balked, although, for all the good points of his tenure, "he loses a lot" for his refusal to acknowledge that stop and frisk was unconstitutional for "the way [the police] implemented it."

State Judges Take 'Offense' Howard Ganz, a partner at Proskauer, said his former colleague "has certainly not shied away from controversy. He has criticized the courts, judges, others. He doesn't hesitate to say what he means and he always means what he says."

But state judges were infuriated by what one characterized as a "nasty" 2009 speech (See text) in which Cardozo called for greater efficiency on the part of state courts and performance standards for judges. Appellate judges, in a letter to the Law Journal, characterized Cardozo's comments as "insulting," "imperious" and "misguided."

In fact, many judges countered by blaming slipshod performance by Law Department attorneys for delays in state courts.

"I regret that the judges took offense to it because I was trying to be constructive, but certainly you can't hide the fact that they didn't like it," Cardozo said. "I do think that in any bureaucracy, including this office, things can always be improved. I'm a great believer in judicial independence, but I don't think that's inconsistent with judicial efficiencies."

City cases comprise about 20 percent of the state court civil case load in the city. Cardozo said that delays have been a "serious problem," and he continues to work for reform.

Chief Judge Jonathan Lippman called Cardozo "an excellent leader of the city Law Department. He is someone who is extremely competent." Lippman said that the department has had setbacks in the courts, but its work is generally good. He said that the courts worked closely with the city to insure that cases are "adjudicated in a timely fashion."

Advising the Mayor

It's Bloomberg's opinion of the Law Department's performance that matters more than any other to Cardozo, who has served at the mayor's pleasure and whom the lawyer admires a great deal.

In statement issued after Cardozo announced he was returning to Proskauer, Bloomberg said he couldn't "say enough" about Cardozo's tenure as corporate counsel.

"Michael's legal insight and acumen, his respect for the law, and his commitment to public service have been second to none," Bloomberg said. "He has been instrumental in shaping and defending many of our most innovative and effective public policies, from public health and safety to education reform and economic development, transportation and environmental protection."

Cardozo said that the mayor has been the "ideal client. He's demanding, but he listens to your advice, asks you the right questions." Additionally, he said that Bloomberg has never asked him to do anything unethical and "does not look back" when the lawyer's advice turns sour.

He will not discuss the advice he has given to Bloomberg but said that the mayor would ask his opinion on how a policy idea would fare in court and he would respond with a legal analysis setting forth his view of any risk to the city. He also might suggest modifications in proposed policies that would make them more palatable to the courts. The final decision on whether to proceed would be up to the mayor.

"If I told him that it was illegal, he wouldn't do it," Cardozo said. "But if I told him that it was 'more likely than' not it was illegal, he might do it [anyway]."

Some legal observers have criticized the closeness of Cardozo's relationship with the mayor.

"The corporation counsel is not the mayor's lawyer—he's the city's lawyer, and the city is made up of many competing entities and often those agencies are in tension with the mayor," said Richard Emergy of Emery Celli Brinckerhoff & Abrady.

Emery said that Cardozo is an old friend, but "he's a devotee of the mayor and that has had its costs in the administration of justice in New York City."

Cardozo said that time will show Bloomberg to have been "one of the most transformative mayors in history because of some of the projects he undertook" such as the Brooklyn Bridge Park, Hudson Yards, the Highline and Governors Island. "On that level, since the Law Department has been so heavily involved in those projects, I think if history treats him well, it will treat me well," he said.

But he said that he took the lead on other matters he regards as an important part of his own legacy.

Ganz said that at Proskauer Cardozo was regarded as "not only a superior lawyer with a commanding intellect, but probably one of, if not the best, field general, at managing large litigations and organizing teams to work on them. He is a terrific teacher, mentor and leader."

Advocate for Reform

At the Law Department, Cardozo said that he has implemented reforms to internal operations that are helping to bring it into the 21st century. Even his critics acknowledge, as did Emery, that there has been a steady improvement in the office.

Cardozo said he has beefed up the use of technology—he says he was the first corporation counsel to use email—and relies on "lots of statistics" to gauge performance.

"That's not headline grabbing, but that's how you run a law firm," he said, predicting that his internal reforms would survive the change in administration.

Cardozo also is proud that in a litigious society annual payouts from damage suits against the city declined more than 14 percent to less than $500 million in the last 12 years, and pending tort matters have been reduced by more than 50 percent to around 18,000 cases.

Cardozo said this has been achieved with "a new approach" that strives to settle quickly cases in which the city is in the wrong. On the other hand, if the city is not at fault or if a settlement demand is unreasonable, a case may be litigated and ultimately tried.

One case in which the city has resisted settling is the decade-old $250 million lawsuit of five men whose convictions for viciously beating and raping a jogger in Central Park were overturned after another suspect was identified.

Mayor-elect Bill de Blasio said last January that the city "has a moral obligation to right this injustice." On Sunday, de Blasio vowed to settle the case.

But Cardozo said that the city has been "absolutely right" in its approach to the case.

"The question is not whether they are guilty or innocent," he said. "The question is whether the police had probable cause to arrest and then whether the confessions were coerced."

The city's position has been that probable cause was present and there was no hint of coercion. Cardozo rejects the notion that an evaluation of this and other cases should be based on some notion of "justice" or "morality."

"When you're a lawyer for a private party or the government, I think you're supposed to take a look at the law and the analysis of the law," he said.

Civil Rights Issues

Cardozo said he has tried to establish "a constructive dialogue" with the city's adversaries in civil rights cases, urging them to call first and sue later. He said this has achieved agreement on a "huge variety of issues. When there is a successful dialogue, it doesn't make the papers."

Steven Banks, attorney-in-chief of the Legal Aid Society, said, "I give him an extraordinary amount of credit for doing that which no other corporation counsel was able to do in 25 years, which was to agree that for homeless families with children, there could be a permanent enforceable right to shelter and a right to have that shelter meet basic standards of habitability."

But Banks and other civil rights advocates say that the dialogue has never been as productive as Cardozo claims. They accuse the city's lawyers of not evaluating big cases carefully enough and of bowing to the mayor's and his commissioner's wishes to fight questionable claims.

They say that the department has not done enough to prod the city to adopt policies that pass constitutional muster.

"I think the city has taken a hard line on civil rights cases and fought them in cases where they shouldn't have. Factual situations are one thing but in cases where people are seeking policy claims, that's where the city digs in," said David Lansner of Lansner & Kubitschek.

Cardozo "has been extremely cordial and we have a tremendous respect for him," but we've seen "little effort to make the city a better place from a civil rights perspective," said Christopher Dunn, associate legal director of the New York Civil Liberties Union.

"Instead of just fighting the flood of police-misconduct lawsuits that have cost the city over $250 million in the past five years alone, the Law Department should have been working aggressively to institute reforms that would have prevented police abuse in the first place," said Dunn, one of the lawyers fighting the city in the stop-and-frisk cases.

Richard Levy of Levy Ratner, who represents black plaintiffs in long-running discrimination litigation challenging firefighter entrance exams, said the city has "generated a lot of hostility" by litigating "every little thing" in the case, an approach to cases that will end up costing it lots of money.

The Law Department successfully moved to remove Eastern District Judge Nicholas Garaufis from the firefighters' case. Cardozo said that the judge is a friend, and the two are cordial when they meet. However, asked if he was concerned about losing friends through the city's legal tactics, Cardozo said, "I don't think I'm in a job to make friends. My job is to represent the city of New York. The Second Circuit agreed with us."

It is the stop-and-frisk case that has generated the most controversy among the city's legal battles. After a six-week trial, Southern District Judge Shira Scheindlin found that the city was unconstitutionally targeting minorities for stops and appointed a monitor to oversee police department practices.

The Second Circuit granted the city's request for a stay pending appeal and also assigned the case to another judge. All the while, the mayor and Police Commissioner, Raymond Kelly, were critical of Scheindlin.

Cardozo said that the tabloids "poured a lot of fuel on the fire," and the situation with Scheindlin was "very difficult."

"My job is to defend the city of New York," he reiterated. "I've done my very, very best not to personally attack anyone and to encourage the administration not to do that as well."

Cardozo urged the incoming administration to continue with the appeal of Scheindlin's ruling.

"This is an important point. Bill Bratton and Bill de Blasio should be the ones to run the police department," he said. "[T]hey think changes should be made in stop and frisk. That's their judgment. But I can't understand why they would want a monitor running the police department and that's what this litigation is about. To withdraw the appeal and leave a monitor in place will not allow Bill Bratton and Bill de Blasio to run the police department, along with the incredible potential costs between the costs of the monitor and attorney fees that this would engender."

However, de Blasio said on Sunday that he would drop the appeal because "the judge was right about the reforms we need to make."