Law in Contemporary Society

*Government Legal Practice: Furthering Justice Through Policy Influence

*

-- By PetefromOz - 26 Feb 2009 Amended 17 Apr 2009

There are many legal roles within government apart from prosecuting that offer benefits that are not often considered. One benefit is the ability to influence public policy decisions. Another can be a work environment that fosters high ethical standards. However, there are also risks and sacrifices associated with government work.

Section I - Influencing Public Policy from the Inside

Subsection A - Getting in the Room

The reality of contemporary government is that the general public rarely contributes to policy formulation. Sometimes this is because of the fast pace of reactive policy formulation. At other times it is prompted by a desire to keep policy formulation within government, whether due to legitimately justifiable confidentiality concerns or because of a desire to tightly control who influences policy. Accordingly, it should surprise no one that professional advisors, especially lawyers, dominate many policy discussions within government. This is especially the case in issues relating to counter-terrorism (Jack Goldsmith, The Terror Presidency 130 (2007)).

When a government lawyer is assigned work the lawyer’s primary focus is the same as that of any lawyer: to determine how to best achieve the desired outcome. However, just as all lawyers are required by the Rules of Professional Conduct to consider any overriding ethical considerations, government lawyers are also required to contemplate any overriding considerations of public interest (see the Federal Bar Association’s Federal Ethics Considerations 6-1 and the general discussion in Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B.C. L. Rev 789 (2000)). This allegiance to the public interest provides government lawyers with not just an opportunity, but in some cases also an obligation, to state their policy views on important issues.

In sum: government lawyers are highly influential in the formulation of important public policies.

Subsection B - The costs paid and constraints accepted in order to get in the room

When a lawyer works ‘in-house' the lawyer sacrifices certain freedoms to engage in private advocacy. This is a necessary corollary of an ongoing duty of loyalty to a client. Thus, government lawyers pay a cost when they enter government service by agreeing to limit their pursuit of causes where their advocacy could be perceived to be inconsistent with their duty of loyalty to the government.

Lawyers in government must accept that senior decision-makers, whether elected or appointed, will ultimately set policy. Once the policy is set, unless it is unlawful, government lawyers are duty-bound to implement that policy. In this sense government lawyers are constrained. However, this constraint is similar to that restricting private sector lawyers as clients dictate their work. In theory a private sector lawyer can voluntarily cease to act for a client, but the Rules of Professional Conduct and the realities of commercial life make this a rare occurrence.

Section II - An Ethical Context for Legal Practice

There are reasons why certain of the forces which can distort the vision of private counsel are absent in government practice. However, there are also particular ethical risks that are sometimes greater in government legal practice. This section discusses some of those forces.

Subsection A - Enabling the Government’s Agenda or Avoiding Enabling Advice

There is a well-known phenomenon of in-house counsel being ‘captured’ by the client’s interests. When a lawyer consistently works for one client he or she gradually comes to identify with the client’s interests and, consciously or otherwise, adopts those interests. This can be especially problematic within government as public sector lawyers sometimes choose to work for particular agencies or administrations because the lawyers believe in the policy agenda being pursued. The pressure from exigent circumstances, especially national security threats, can create “institutional and ideological factors [that] can erode compliance with ethical norms” (Peter Margulies, When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy, 30 Fordham Int'l L.J. 642, 643 (2007).

Recently it has been revealed that in 2002, lawyers in the Office of Legal Counsel (OLC) in the Department of Justice provided enabling advice to allow CIA interrogators to utilize ‘coercive’ interrogation methods that were previously thought to be unlawful - see http://72.3.233.244/pdfs/safefree/olc_08012002_bybee.pdf. The subsequent head of OLC, Assistant Attorney-General Jack Goldsmith, explained his reason for replacing the principal opinion in part by saying that it “lacked the tenor of detachment and caution that usually characterizes OLC work” and was a “redundant and one-sided effort to eliminate any hurdles posed by the torture law” (Jack Goldsmith, The Terror Presidency 149 (2007)).

This example illustrates that the way that a government legal office is managed can make a significant difference to the ethical practice of the lawyers. ‘Enabling advice’ provides a legal justification to support a client’s desired course of action, and often resembles a brief prepared for litigation. The classic application of ‘enabling advice’ is tax attorneys advising taxation accountants on the interpretation of the tax code that is most favorable to facilitate a tax minimization scheme. Principally due to the fear that lawyers will be ‘captured’ by their clients, many government lawyers are taught to studiously avoid ‘enabling advice’.

Subsection B - Acting as a Model Litigant

Secondly, the government should always act as a model litigant (see Steven Berenson, The Duty Defined: Specific Obligations that follow from Civil Government Lawyers’ General Duty to Serve the Public Interest, 42 Brandeis L.J. 13 (2003); see also the Equal Access to Justice Act 28 U.S.C. 2412 (2000)). This means that the government ought to act with complete propriety, fairly and in accordance with the highest possible standards in its conduct of litigation. For instance, the government should not take technical points and should always consent to any reasonable request (e.g. for adjournments) unless the government’s interest will be prejudiced by not taking the point. Similarly, the government should not require parties to prove any point that the government knows to be true, and should pay all legitimate claims without litigation.

  • I think this is a readable summary of some personal experience and a relatively cautious set of inferences based on that experience. I agree that there area reasons why certain of the forces that distort the ethical vision of private counsel are absent in government practice. The other side of the story comes out only in the discussion of "enabling advice," which is one name for the ways in which lawyers become identified with clients and government lawyers become sympathetic to government power. That might have been explored a little more remorselessly.

  • I think you are right in what you have to say about policy formation, but once again the compromises involved in getting into the room are not discussed.

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r5 - 08 Jan 2010 - 22:11:13 - IanSullivan
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