Federal Government

Agency Capture -- Competition

The DOJ's monopoly on government representation warps the attorney-client relationship.

By  
on

Looking back over my previous columns, I think I’ve given the impression that practicing as a government lawyer isn’t just different from practicing in the private sector, but harder. I’ve written about how some government programs are so complex and operate on such a long timeline that it might be hard to know what course to take in handling any particular legal matter, which means it can be difficult to know whether you’re “winning” or “losing.” I’ve suggested that government attorneys do extremely intense work, sometimes with long hours, for significantly less compensation than their Biglaw counterparts. I’ve even mused that the large number of potentially legitimate stakeholders in an agency might make it challenging to know who the client is.

Woe unto us, we poor public servants who wander in this wilderness of substantive complexity? Not quite. Today I’d like to highlight something cutting hard the other way. Generally, government lawyers don’t need to worry about competition.

Private sector entities, particularly those large and sophisticated enough to be realistic clients for Biglaw firms, are under enormous competitive pressure. Shareholders and other enterprise owners demand returns on their investment that equal or exceed available alternatives, and preferably sooner than they might realize those same returns elsewhere. If a company falls behind, capital markets may abandon it in favor of more competitive options. If the resulting capital shortfall becomes severe enough, it might begin to threaten the company’s operations, causing the company to fall yet further behind. Ultimately, this can cause the company to go out of business.

Obviously this is an extremely over-simplified version of how private sector entities go out of business, and it is not meant to be one-size-fits-all. My point is only that competitive pressure is, for many businesses, an existential threat. And the market shift that takes this from an abstract possibility to an immediate threat can always be just around the corner. This implies every resource is under constant pressure to be as productive as possible. Every dollar, asset, employee, etc. needs to be put to the maximum possible use, producing as much comparative utility as it can.

Government programs themselves generally aren’t subject to this same kind of competitive pressure. Now, this is not to say that government programs aren’t under enormous pressure to perform. The sources of the pressure just aren’t competitive. This implies that there are different consequences for shortcomings — political pressure, media scrutiny, budget cuts or restructuring, etc. — that might be significant, but almost always fall short of being literally driven out of existence.

Let’s pause here and note that there’s a degree to which we want it this way. In fact, you could argue that transcending competitive pressures is an inherent part of the point of making something a government program. The government exists to discharge functions that serve the common good, functions that no private actor has a sufficient incentive to discharge. This implies that the government’s missions, at least theoretically, are important enough that we don’t want the market to be able to kill them. At minimum, it implies we don’t want their survival to be dictated by the same kind of pressures that determine whether private entities survive or fail, such as a short-term cost-benefit calculus.

Being exempt from the competitive fray is great. But what does it mean for the practice of law?

Sponsored

Clients under this kind of pressure have no problem passing it right along to their counsel, particularly when they’re paying top dollar. Businesses exist to make money, not to employ lawyers, and that means they want to get the most value for their legal spend possible. This creates competitive pressures for the lawyer to accomplish as much for the client as possible, while not being undercut on the price for his or her services.

Under these conditions, a lawyer may be hesitant to tell a client “no.” For example, lets say a client has just lost a major trial, and is facing an expensive judgment. The lawyer may know that there’s little merit to an appeal, and that bringing it is a waste of the court’s time (and the client’s legal spend). But the client, comparing the small cost of an appeal and some minor chance of a reversal against the certainty of a huge judgment, insists the appeal be taken. The lawyer will almost certainly go along: if she doesn’t, the client will simply retain a different firm willing to pursue the appeal. And after all, it’s the client’s money.

A government agency, however, can’t change its counsel. This flips the dynamic you expect to see in the private sector upside down. If an internal lawyer gives advice the agency thinks is overly restrictive, the agency can’t just retain new lawyers until it gets an answer it likes. In litigation, this dynamic is even more exaggerated. Generally, only the Department of Justice (DOJ) has authority to represent the United States in the federal courts, and agencies without independent litigating authority have no way around this. This means DOJ gets to decide what arguments to advance and what claims and appeals to bring. I recall a statement from Solicitor General Donald Verrilli as part of a video interview (http://www.scotusblog.com/media/scotusblog-on-camera-donald-b-verrilli-jr-complete/) to the effect of, in government practice the Solicitor General basically decides whether the client agency is allowed to appeal. While this is obviously to ensure the positions the government is taking in the appellate courts are mutually harmonious and in the long term interests of the United States, I think it is fair to say this dispassionate, statesman-like approach would be less likely if DOJ had to worry about getting dumped in favor of Moneydollars LLP if the agency didn’t like the answer.

Of course, I am not suggesting that government lawyers should go mad with power and start bossing their clients around. Quite the opposite. The fact that the government lawyer doesn’t have to worry about competition means she can focus solely on the substance of the legal question and on providing excellent service. Good lawyering means providing a range of options, reasoning behind each option, caveats, and clear advice, not just an impenetrable wall of “yes” or “no.” And I’ll go further: this dynamic calls for humility. A government lawyer should approach the scope of each task carefully, leaving as much policy and operational flexibility for the client as possible.

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 [email protected].

Sponsored

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.

Topics

, , ,