What Can a Government Legal Career Offer? An Insider’s View

The first time I was challenged to consider seriously the opportunity to influence public policies was when my professor in corporate law exhorted the “left-leaning, socialist, tree-hugging” members of the class to pay attention and contribute to corporate law reform. The professor was talking about submitting regulatory proposals and lobbying the legislature; in particular, she argued that SEC disclosure regulations will always favor less disclosure if corporate attorneys are the only ones who make submissions.

When a government lawyers receives an assignment – be it a request for advice, an instruction to commence or defend a lawsuit, or an instruction to negotiate a deal – her primary focus is the same as that of any lawyer, namely, achieving the most desirable outcome for her client. Here, her client’s interest is the same as the interest of the state as a whole. For example, lawyers working for the federal government are required to place allegiance to the Constitution above all other considerations. This requirement obligates government lawyers to raise their policy views on important issues.

The reality of contemporary society is that the public is rarely, if at all, offered a genuine opportunity to contribute to policy formulations. Sometimes this phenomenon can be explained by the reactive nature of everyday politics. But in many circumstances, there is an incentive for the bureaucracy to operate in relative secrecy and withhold information from the public, whether legitimately or not. Thus, government insiders, especially lawyers, usually dominate policy formulations. This is especially the case in counterterrorism.

As a government lawyer, I was part of a multi-agency consultation process to formulate the State’s position with respect to the Australian Federal counter-terrorism laws, 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 organization. During this process, I expressed my opinions on a range of legal and policy issues towards to my superior, either informally or formally. On occasions I resorted to “legal magic” or “transcendental nonsense” in crafting my opinion on whether the proposal is legally sound. On the other hand, one working for the government necessarily brought her own political view into the process of forming public policies. This phenomenon is theoretically the antithesis of democratic governments. Thus, even though by working inside the government, one can benefit from pushing her own views into public policy making, such shortcuts may not be beneficial to the entire society as a whole.

I contend that government lawyers maintain an ethical standards consistently higher than those required by the bar association rules. This is more than simply because of the absence of the profit motive in government services. There is one particular instruction that is inculcated into every lawyer at the Western Australian State Solicitor’s Office. That is avoiding enabling advice.

“Enabling advice” provides legal justifications to support a client’s desired course of action. One classic example of “enabling advice” is an opinion letter prepared by tax attorneys advising taxpayer on the interpretation of the tax code that is favorable to facilitate a tax minimization scheme. Another recent example is the discredited Bybee memo which in effect allowed military interrogators to utilize “coercive” interrogation methods that were previously classified unlawful. As a government attorney, one should resist the temptation to aggressively interpret the law to accommodate the wishes of the state. Here, the government attorney is not only representing the government, she is also pursuing justice by upholding Constitution. The constitution requires that executive power is limited and should be checked by other branches. When personal liberty is at stake, a government lawyer should not only zealously represent the state interests, she should also zealously represent the interest of the individuals and citizens as a whole. Only such a high ethical standard will comport with the role of government lawyers.

The existence of a high ethical standard necessarily means there will be circumstances where a government lawyer is confronted with the unsavory choice of either succumbing to the wishes of the superior or facing the likely retaliation in the future. That choice is essentially the same in the private sector as in the public sector. But a career government lawyer usually has the additional protection of inherent federal job security and federal “whistle blower” statutes. The political appointees in the hierarchy probably face more pressure. For example, it is interpreted that United States Attorneys serve at the will of the President. If that is the case, United States Attorneys are in no better bargaining positions than at-will lawyers working for private law firms. This employment arrangement may explain why the main framers of the Bybee memo were political appointees, rather than career government attorneys.

In summary, a government legal career may bestow many benefits to the individual who is willing to engage in the process of policymaking and maintain a high ethical standard. However, government lawyers still confront ethical dilemmas. Some of these ethical dilemmas may affect the society substantially. The huge stakes involved may even make the dilemmas more intractable on a personal level. Consciousness of such issues is critical before one decides to join the ranks.