Federal Government, Legal Ethics, Public Interest

Agency Capture: Who Is The Client?

When a government lawyer answers a legal question, whose question is he answering, and for whose benefit? When a government lawyer takes a position, whose interests or preferences is she advancing?

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Most of you reading this probably have a pretty good idea who your client is.

But lawyers who work for the government may frequently encounter scenarios where it is not at all clear who the client is. For government lawyers, figuring out who your client is can be difficult, and it can be a significant question.

This is not just an abstract exercise in technical legal ethics; this can be a question of public interest. When a government lawyer answers a legal question, whose question is he answering, and for whose benefit? When a government lawyer takes a position, whose interests or preferences is she advancing?

This might matter more for some jobs than for others. Questions that turn on who exactly the client is might not regularly arise for, say, an attorney producing draft decisions for an Administrative Law Judge (though I’m sure there are examples of exactly that happening).

But what about a government attorney whose position involves providing legal support and advice to the agency’s decision-making or operational apparatus? Probably the cleanest example is an in-house counsel position, at least nominally similar to working in a typical in-house counsel gig in the private sector.

In private practice, figuring out who your client is can be tricky in some situations, but our profession has a decent understanding of how to frame the question and deal with it. Your firm will have been retained by some particular entity in order to perform some specified legal task, be it transactional, litigation, or general legal advice. The firm will execute a retainer agreement that generally defines and controls the representation, along with your well-understood ethical duties as an attorney.

Probably the trickiest scenarios in the private sector arise when your client is an organization, particularly if you work in-house for a corporation. The technical answer is usually that your client is the organization. For example, the American Bar Association Model Rules of Professional Conduct Rule 1.13(a) states that the client is “the organization acting through its duly authorized constituents.” Now we’re getting somewhere; if we analogize to the public sector, maybe the easiest answer is that the client is simply the agency itself.

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But the remainder of the rule seems to be written with a corporation in mind. And we’re talking about an agency, not a corporation. An agency doesn’t exist to make money for a specified set of owners; it exists to pursue the public interest by performing a mission pursuant to statutory authority. This implies the list of potentially legitimate stakeholders is long.

This makes the Rule a bit inapposite. The Rule acknowledges these dynamics but does little more than wave at them from a distance and provides almost no guidance. Comment 9 to Model Rule 1.13 says the duty to an organization as client “applies to governmental organizations.” But that’s about the only clear answer we have, because “[d]efining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules.” Thanks.

Instead, the best source of a doctrinal answer is probably the law itself: the organizational structure of most agencies, especially the executive departments, is dictated by the United States Code. If there’s a statute specific to the top attorney and his or her subordinates, that statute might make clear that the lawyer’s ethical duties are owed to “the Secretary” or “the Administrator” or some equivalent. Let’s just call this mighty position The Boss.

But what exactly does that mean?  Given the size of some federal agencies and the scope of their mission, a rank and file attorney isn’t likely to have an overabundance of contact with The Boss. Sure, this means we know who the client is doctrinally, but what about in reality, for the day-to-day purposes of keeping the work moving?

Maybe your client is the “United States,” whatever that means. If you ask most people from the Department of Justice, that’s usually the answer. But doesn’t that just re-state the question at an even higher level of generality than saying your client is The Boss?

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Maybe your client is the program office that is consuming your services on a day-to-day basis. They’re the ones who are executing the mission you’re providing legal services in order to support, usually pursuant to delegations to from the Boss. But what if a program office has an interest in pursuing a course of action that isn’t in the best interest of some other potentially legitimate stakeholder in the agency?

Maybe your client is the taxpayers and voters. They’re the ones footing the bill for all this, and it is all being done for their benefit, right?

Maybe your client is the President, at least indirectly.  After all, s/he’s the ultimate boss, vested with the fearsome and devastating powers of the executive, including the power to set objectives for, and fire, The Boss of wherever you work.

And the specific identity of the client can change the answer to potentially significant questions. A program office might want to interpret a key statute broadly, while The Boss might want you to interpret it narrowly. The taxpayers might want immediate results for their money, but the program office might prefer longer-term thinking. External stakeholders might prefer that your duty of confidentiality take a back seat to the public interest in transparency. How high is the agency’s risk tolerance? Is political exposure relevant?

There’s no one-size-fits-all answer for determining the exact identity of the client in these scenarios, no grand unified analysis that consistently produces the right answer. Even the same stakeholder might want very different things depending on the circumstances. My only point is to emphasize that, in order to discharge her functions as both a lawyer and a public servant, a government lawyer must confront this question, and have a way of deciding on an answer that is appropriate for the circumstances.

Brian D. Griffin began his legal career as an associate in the New York office of a Biglaw firm, focusing mostly on litigation. He is currently a staff attorney in the U.S. Department of Veterans Affairs Office of General Counsel. His duties include litigation, rulemaking, and programmatic legal advice. Brian attended New York University School of Law and Georgetown University for undergraduate, majoring in Government. You can reach him at BGriffin8134@gmail.com.

DISCLAIMER: The statements and views expressed in this column are entirely Griffin’s own. They do not represent the views of the Department of Veterans Affairs or the United States.

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