*Government Legal Practice: Furthering Justice Through Policy Influence

I worked as a government lawyer for several years in Australia. It was a highly satisfying career – a sentiment echoed by the panel of CLS faculty discussing their government legal careers last fall. While everyone knows that prosecutors pursue the interests of justice, there are also many other legal roles within government that offer a range of benefits not often considered by law students. One benefit not often talked about is the ability to influence important public policy decisions. Another is a work environment that fosters consistently high ethical standards.

The first time I was challenged to consider seriously the opportunity to influence public policy was when my Professor in Corporations Law exhorted the “left-leaning, socialist, tree-hugging” members of the class to pay attention and contribute to corporate law reform. My Professor was talking about making informed public submissions and lobbying Congress; in particular, she argued that SEC disclosure laws will always favor corporate interests if BigLaw attorneys are the only ones who make submissions.

During my career as a government lawyer it became clear to me that there is another, equally important, but rarely publicized, contribution that government lawyers can make to further the public interest. When government lawyers receive an assignment – be it a request for advice, instructions to commence or defend litigation, or instructions to negotiate a deal – 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 over-riding ethical considerations, government lawyers are also required to contemplate any over-riding considerations of state (national) interest. For a recent discussion of the need for United States government lawyers to place allegiance to the Constitution above all other considerations see http://www.abanet.org/natsecurity/ (click “Ethical Issues for National Security Lawyers”). This allegiance to the public interest provides government lawyers with not just an opportunity, but in some cases also an obligation to raise their policy views on important issues.

The reality of contemporary government is that the public is rarely offered a genuine opportunity to contribute to policy formulation. Sometimes this is caused by the fast pace of reactive policy formulation. At other times it is prompted by a desire to keep policy formulation within government, whether for legitimately justifiable confidentiality concerns or because of a desire to tightly control who influences policy. In these circumstances 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 counterterrorism (Jack Goldsmith, The Terror Presidency 130 (2007)).

In my past practice, I commented on a range of issues informally (e.g. by directly speaking with my instructing officer) or formally by an addendum to a written opinion. On occasions I resorted to “legal magic” (Jerome Frank, Modern Legal Magic: Courts on Trial (1973)) or “transcendental nonsense” (Felix Cohen, Transcendental Nonsense and the Functional Approach (1935)) – crafting my legal advice in a way that unmistakably conveyed that the proposed course of action was ultra vires or otherwise not open to the client.

Attorney-client privilege and my duty of confidentiality prevent me from providing any in-depth examples. However, I can reveal that I was part of a multi-agency consultation process to formulate the State’s position with respect to the (Australian) Federal counter-terrorism laws (akin to the US Patriot Act), which could only be passed with the consent of a majority of States. Subsequently, I advised the State Premier (equivalent to Governor in the US) on legal and policy issues related to the State granting or withholding its consent to the Federal Attorney-General’s listing of organizations as foreign terrorist organizations.

I contend that it is more than simply the absence of the profit motive that causes government law offices to foster a work environment with ethical standards consistently higher than those required by the bar association rules. There are two particular philosophies that are inculcated into all lawyers working for my employer, the Western Australian State Solicitor’s Office, that assist in maintaining high ethical standards: (a) avoiding enabling advice, and (b) acting as a model litigant.

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

Secondly, the State should always act as a model litigant (I do not know if this principle is followed in United States’ governments). This means that the State ought to act with complete propriety, fairly and in accordance with the highest possible standards. For instance, in litigation the State should not take technical points (such as the naming of a respondent) and should always consent to any reasonable request (e.g. for adjournments) unless the State’s interest will be prejudiced by not taking that point or acceding to the request. Similarly, the State should not require parties to prove any point that the State knows to be true and should pay all legitimate claims without litigation.