Federal Government

Agency Capture: Saying No

Instead of relying on "no" a government lawyer should make every effort to find a "no, but..."

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In a previous column, I argued that government lawyers are in many ways exempt from the competitive pressures that shape interactions in the private sector, including the lawyer-client relationship. As that column briefly argued, and many others (including the Solicitor General) have observed, this can have substantive implications. Because an agency’s ability to change its counsel is limited, it might not have many options for challenging a “no” from agency counsel. Today I’d like to explore this dynamic a bit more and offer some thoughts on how a government lawyer ought to navigate it.

One might think of legal matters as either prospective, or retrospective. Transactions, operational planning and structuring, and policymaking are prospective exercises, at least from a legal perspective. The client is trying to put something in place that will dictate its own future conduct, and potentially the conduct of other parties.

Litigation, by contrast, is retrospective. First we figure out what the facts are, or in other words, what happened. Then the law is applied to those facts to conclusively determine legal obligations between the parties.

When a lawyer is asked for legal advice regarding a potential course of action, there is both a prospective and retrospective element to the question. The lawyer is being asked to look at a hypothetical future fact pattern and determine the legal results, including associated risks, that fact pattern will produce if litigated.

I’m hardly the first to observe that lawyers are generally considered a risk-averse bunch. Of course part of this is because our legal knowledge and skillsets give us the ability to identify risks that others aren’t likely to recognize or fully appreciate. But this, on its own, is unremarkable. Theoretically, once the lawyer is confident that every issue she is able to spot has been addressed (or the associated risk accepted by the client), there should be no hesitation with moving forward.

Our risk-averse nature isn’t just driven by the fact that we can spot issues that others cannot, but by the fact that we have a heightened appreciation for the ultimate X-factor: litigation. We have a healthy respect for the inherently unpredictable nature of litigation, both in terms of outcome and consequences. Litigation is (at least theoretically) an adversarial setting in which each party’s view of both law and fact are subject to dispassionate, objective, impartial review. We know, perhaps from experience, that it is very hard to foresee every risk that the unforgiving light of litigation might expose. What might have seemed factually obvious and legally reasonable prospectively can quickly be open to legitimate question when viewed in the harsh light of objective retrospective review.

So our natural instinct as lawyers is to err on the side of caution, which often takes the form of saying “no, we can’t do that, the risk is too great.”

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So far, everything I’ve said is common to both the government and the private sector. But as I argued previously, the competitive pressure in the private sector means that the private sector attorney has a countervailing incentive to say yes. In the general absence of this competitive pressure, there may be a risk that the incentive structure for a government attorney is to so firmly err on the side of caution that she inadvertently becomes an impenetrable wall of “no.”

Obviously we want government attorneys to say “no” to things that are flatly illegal, or carry an irresponsible amount of risk for the agency and its innumerable stakeholders. But too much “no” has significant negatives. An agency is a public entity, and the things the lawyer is being asked to evaluate are in some way related to or meant to serve public policy, or may even themselves be a low-level public policy. Too much “no” may wrongly close off valid avenues for discharging the agency’s mission, with the ultimate cost at least indirectly being borne by the public.

So how should a government lawyer manage this dynamic?

First, when asked to evaluate a potential course of action, a government lawyer should be very hesitant to answer with a flat “no.” She should view that as an incomplete answer, or just a starting point for further engagement with the client. A government lawyer should make every effort to find a “no, but,” as in “no, the risk is too high if we do it that way, but if we change X and Y, the risk would be greatly reduced. Is changing X and Y consonant with what you’re trying to accomplish?” Depending on the complexity of the underlying matter, this process might need to be iterated multiple times. But this is surely preferable to passively parroting “no” and leaving the client to fumble in the darkness before trying again. The point is that a good lawyer in this situation is actively engaged in trying to get the client to “yes.”

Second, a government lawyer should have a healthy appreciation for the fact that technically, she may not actually be able to say “no.” In this context, a lawyer doesn’t “approve” or “disapprove” things, but rather is providing legal advice. The lawyer isn’t the decision-maker. What a “no” really means is, “we advise against that course of action given our assessment of the risks involved.” Given this reality, it is vastly preferable for the client to be inclined to engage with the lawyer more rather than less. The lawyer should behave in such a way as to make the client view the lawyer as a resource for crafting an ideal outcome rather than as an obstacle to doing something. Too much “no” will push the client in the opposite direction.

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Third, a government lawyer should always look for any unstated premise. Suppose a government lawyer is asked to review a proposal that is structured oddly. The lawyer concludes the risk is high, but instead of just saying no, asks the client to explain the thought process behind the odd structure. In the conversation that follows, it turns out that part of the client’s reasoning rests upon the belief that certain legal limitations apply, when in fact they don’t. Once the lawyer corrects this misunderstanding, the document is easily revised to be simpler and present far lower risk. In this scenario, the lawyer started with a “no,” but worked with the client to open up a larger “yes.”

The common element to all of this is the importance of client engagement. The lawyer should always take the time to understand not just the client’s immediate goal, but broader context and objectives as well. Through more and better communication with the client, a government lawyer can move past an overreliance on “no.”

Earlier: Agency Capture — Competition

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 my own. They do not represent the views of the Department of Veterans Affairs or the United States.

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