Lawyers in Government Service—a Foreword

Lawyers in government serve in many different roles, both representational and nonrepresentational. Some represent the federal, state, or local government, a particular governmental entity (such as a department of consumer affairs) or agency (such as the NLRB), or public officials in their official capacity. These lawyers render a range of legal services and act as litigators, negotiators, drafters, and counselors. Other lawyers in government serve in nonrepresentative capacities; for example, as elected or appointed officials or as their aides. Scholarship on government lawyers addresses these varied roles and functions from varied perspectives, drawing on different bodies of law and legal theory. The eight articles in this collection could not possibly cover the full range of government lawyers’ work, but they do range widely, addressing government lawyers’ roles as legal advisors and policy advisors, as agency officials and agency counsel, as state and federal attorneys general, and as criminal prosecutors and civil enforcement lawyers. Two of the writings offer historical perspectives. Others illuminate the work of contemporary government lawyers

Institutional Independence: Lawyers and the Administrative State

The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers generally; however, the legal academy has yet to explore the centrality of professional independence to administrative law or the structural pressures influencing its exercise. This Article joins a body of work that adopts a new institutionalist approach to professional misconduct. In doing so, this Article makes three principal contributions: (1) it outlines why institutionally sustained professional independence is essential to the federal administrative state; (2) it identifies institutional failings that impede government lawyers’ exercise of professional independent judgment; and (3) it proposes institution-based solutions to facilitate professionally independent conduct by government lawyers. By insulating government lawyers from excessive interference on core professional judgment calls, civil society may rely on these lawyers to help protect the basic structure of the rule of law

Lawyers and Policymakers in Government

Schuck discusses the conflicts in policymaking that occurred between the office of the ASPE (Assistant Secretary for Planning and Evaluation) and the Secretary of the Department of Health, Education, and Welfare, Joseph A. Califano. Califano believed that only lawyers were fit policymakers and everyone else was a mere technician

Government Lawyers

I am grateful to Professor Lee for the opportunity to comment on this fine set of papers regarding the ethical obligations of government lawyers. These papers shed light on many interesting aspects of serving the government. Professors Shaffer and Lee explore the peculiar challenges to integrity that a lawyer experiences when he has a client who can chop his head off. The challenges are less today, but a lawyer with large student loans to pay may not realize that they are. Professor Hazard points out that government lawyers are government employees with the responsibilities that government employment entails. Professor Green shows that government lawyers may also be public officials with the duty of fairness that all public officials share. These are all important points

The Moral Complexity of Cause Lawyers Within the State

Douglas NeJaime\u27s Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a cause exists because the dominant institutions of society have failed to represent the interests and ideas of some subgroup, at least in its own eyes; and government is the most dominant of dominant institutions. Causes therefore draw their energy from the desire to change the direction the state has taken. Cause lawyers are a nuisance to the state, and they mean to be a nuisance. It comes as a surprise, then, that they would actually be invited to become insiders; that is, no doubt, the main reason that cause lawyering within the state has attracted insufficient previous attention. Of course, there are causes and there are causes: lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights is a cause, but so is the Race for the Cure and promoting classical music in public schools. The latter two will hardly ever stand in opposition to government. I take it that NeJaime\u27s focus is on politically controversial causes, and that will be my focus as well. NeJaime provides a compelling analysis of the major ways in which cause lawyers can operate within the state to further their cause. His scholarship is comprehensive and first-rate. He considers cause lawyers working for a variety of causes-not only LGBTQ rights, but also disability rights, civil rights and affirmative action, feminist causes, and conservative causes. The paper raises fascinating questions about how to reconcile the lawyers\u27 two identities, as cause lawyers and as government lawyers. Putting the question melodramatically (and with apologies to Tolkien): What happens to a cause lawyer when he or she decides to use the Ring of Power? Can she still remain a cause lawyer, or does it transform her, or even-keeping Tolkien\u27s Ring in mind-devour her

The Constitutional Duty of a National Security Lawyer in a Time of Terror

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001

Ethical Quagmires for Government Lawyers: Lessons for Legal Education

Each presidential administration faces its own challenges related to the ethics of government officials and lawyers. What distinguished the Trump presidency was the steady stream of news reports that related to controversies involving government lawyers. In examining various controversies, this Essay argues that the ethical standards applicable to government lawyers are often thorny and debatable. Fortney discusses how controversies involving alleged misconduct by government lawyers reveal the range and complexity of ethical dilemmas that government lawyers encounter. This Essay asserts that legal educators should do more to empower government lawyers to deal with such ethics issues. To highlight key ethics questions government lawyers must address, the author examines some of the most common and perplexing ethics issues that arise in government practice. Rather than simply criticizing the lawyers involved in those controversies, the conclusion suggests a positive outcome of the Trump era is for legal educators to take seriously ethics issues encountered by government lawyers and spend more time on them in the classroom. By doing so, legal ethics professors discharge their own professional responsibility to their students and future public servants

Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits

Paulsen provides an autobiographical and a conjectural account of cases of personal and professional dilemmas of government lawyers

Foreword

Devins discusses his own experiences with government lawyers and the contextualization that seems to dominate their experiences and work