(concurring). I fully agree with the well-reasoned opinion of the majority. As this case is to be remanded to the Superior Court, I do not intend to intimate a view of the merits or the ultimate result.
I would, however, like to point out once again to attorneys, particularly those who represent the government, that their responsibilities involve counseling as well as litigating. All too often such cases as these reach this court from the office of the Attorney General. To “confess error” does not have to be an abdication of professional responsibility; it is often the sensible course to take in clear cases in order not to present unnecessarily routine internal administrative disputes or housekeeping matters to a panel of the Appeals Court or to any other court. It is a complete waste of judicial time, as well as an unnecessary dissipation of the limited resources of the Attorney General. I think it is a professional imperative for a government lawyer (as well as his duty as an officer of the court) to advise his client prior to litigation — whether an agency, an administrator, or a policymaking official1 — that a regulation, directive, or other administrative scheme is legally indefensible, and the result in court foredoomed. On occasion, a skilled government attorney, if sufficiently knowledgeable, may wish to suggest that such action of the official is unwise or ill-advised. In sum, a good democratic government must be protected from within, as well as watched from without.
Without joining in the debate, I merely note that there are some who view the public as the principal client of an attorney representing the government.