Recommendations and Actions
In 1825, Charles Caleb Colton wrote, "The science of legislation is like that of medicine in one respect: that it is far more easy to point out what will do harm than what will do good." This statement is also too often true today in the legal culture of the federal government.
The primary function of the Offices of General Counsel (OGC) in federal agencies is to provide management with advice on legal matters. Their role and their involvement in the decisionmaking process is traditionally determined by the head of the agency and, in some instances, subordinate officials.
Offices of General Counsel are pivotal players in the clearance, or "vetting," process inside departments and agencies. Their advice is crucial in the increasingly litigious environment in which the federal government finds itself. An Office of Personnel Management (OPM) guide for a new general counsel identifies a dual role for federal lawyers: interpreting the law and representing their clients' interest.(1) The guide states there may be an actual or perceived conflict between these dual roles. The result, the guide continues, is that some program offices view the OGC as nay-sayers ("if you want to be told you can't do something, go to the General Counsel's office").(2)
Cold vs. Hot.
As government managers in the 1990s struggle to improve their operations, provide improved customer service, and cut costs, they continually face an enormous web of legislation and regulations that bind them to the past. However, in the quest to serve the greater public good with diminishing resources, more than ever federal managers will need to be more innovative. In order to accomplish their agency's mission, top managers rely on their OGC to determine the legal implications of management initiatives. In this regard, general counsels are what veteran civil servant Arthur Flemming terms "cold lawyers" or "hot lawyers." He attributes the terms to Oscar Cox, who was President Franklin Roosevelt's solicitor general. Cold lawyers are those who are satisfied with advising management that a proposal is unacceptable because, based on their reading of the law, there is no specific provision that allows management to do what they want to do. They offer no options. They also fail to specify the relative legal risks of the proposal. Hot lawyers are those who ask management what they are trying to achieve and work with them to devise proposals that will achieve it.(3) They offer options and they specify the legal risks associated with them. Today, federal managers need more hot lawyers.
Some OGC staff believe the reason there are not more hot lawyers is the restrained climate in which both managers and general counsels have been asked to operate. Margaret Jane Porter, Chief Counsel of the Food and Drug Administration (FDA), shares this view. She believes OGC staffs will respond in kind if a different environment is established in the executive branch.(4) Managers and their OGC's have been operating in a culture laden with red tape, which the National Performance Review intends to change. Just as managers have been disempowered, so have OGC staffs.
Identifying the Customer. George Schlossberg, an attorney in private practice who formerly served on the OGC staff in the Defense Department, believes the central issue facing federal attorneys is identifying the client or customer. "Who is the client of a federal attorney in an OGC?" he asks. "Is it the President, the department, the secretary of the department, the mid-level government official posing the issue, or the public at large?"(5) Schlossberg contends that the best premise is one in which federal attorneys consider their clients to be the bureau chiefs and section heads whom they regularly advise, subject to their being overruled by the General Counsel. In the opinion of another OGC staff member, the client is the Secretary.(6) In the view of yet another OGC staff official, the client is the agency.(7) Other OGC staff identify the public good or the taxpayer. Some suggest the client varies depending on the issue at hand. According to the National Aeronautics and Space Administration's OGC, management is not a monolith, however, and when conflicts within line management occur, mechanisms should be in place to identify and resolve them early. Thus, while the general counsels to the secretaries agree their personal client is the secretary, OGC staffs do not share a common view as to who their client is.
Previous Attempts to Create a Focus. President Carter established the Federal Legal Council in 1979 by Executive Order 12146 to promote coordination and communication among federal legal offices and to become a forum for exchange of information and ideas on matters of common interest. This council was chaired by the Attorney General and included representatives from 15 other federal agencies on a rotating basis before it became inactive in the mid-1980's. Thus, it has not played a significant role for almost a decade.
In addition, the Administrative Conference of the United States (ACUS) has convened General Counsels for specific purposes in the past. ACUS was established by Congress in 1964 as a permanent, policy-neutral, independent government agency to study the efficiency and fairness of the federal administrative process. The Conference develops non-partisan recommendations to the President, the federal departments and agencies, and the Congress on methods to improve the procedures by which agencies administer regulatory, benefits, and other government programs.
Need for Change
There is a need to identify clearly who are the general counsel's client(s). As in the case of almost all government employees, OGC staff have multiple customers, internal and external to the government. The challenge is to balance the various and sometimes competing demands of the many customers. This is fundamental because there are specific obligations that a lawyer has to fulfill when representing a client. For example, the District of Columbia's Bar has rules of professional conduct that state: "A lawyer shall represent a client zealously and diligently within the bounds of the law."(8) Further, they state: "A lawyer shall not intentionally (1) fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or (2) prejudice or damage a client during the course of the professional relationship."(9) Other bar associations have similar codes of conduct.
Without a clear definition of who the client is, there is incongruence between managers' expectations and OGCs' performance. The confusion among OGC staffs results in dissatisfAction among many managers because they believe they are the client and, therefore, they expect the concomitant zealous representation that should accrue in an attorney/client relationship.
One way of clarifying who is the client would be to subject OGC's to quasi-market forces. Redefine the roles of OGC's to separate their service function--providing advice to managers--from their control functions--serving as a vetter for policy proposals. Subject the service function to market forces by allowing line managers to select who they want to receive their advice from. This could be done through the franchising route, or other related approaches. The General Accounting Office, for example, has created a "client- oriented" approach in its general counsel's office by assigning legal staff to serve specific line managers and soliciting these line managers' input into attorneys' performance evaluations.
A practice that has limited OGCs' effectiveness in some agencies is management's failure to involve them in their early deliberations. Some federal lawyers feel their advice appears ineffective or even obstructive because they are consulted after decisions have already been made. W.C. Parler, General Counsel at the Nuclear Regulatory Commission (NRC), observed that when lawyers are included on strategic planning and decisionmaking teams at the outset, substantial resources can be saved.(10) He further believes that OGC lawyers on these teams find that they have a responsibility to be constructive, timely contributors and not to be obstacles who do not provide creative options. One incentive to increase the chances that program managers would consult with legal staff earlier in management deliberations is to allow those managers who consult early to be permitted to use a more streamlined final approval process.
1. Define clearly the clients of the Offices of General Counsel. (1)
Administrative Conference of the United States (ACUS) should initiate a high-priority project to convene a group of general counsels or their equivalents, OGC staff members, and a representative of the Department of Justice to define clearly who is the client of the Offices of General Counsels within agencies. ACUS should serve as facilitator to the group. This initiative should be completed on an expedited basis. The definition statements should be completed within one year. The resulting guidance should include a policy statement that OGC's should help identify alternative approaches whenever a proposed management initiative is deemed to be not legally acceptable. The legal risks associated with management proposals should also be specified and options suggested.
In addition, ACUS should evaluate and recommend whether it would be desirable to reconstitute and energize the Federal Legal Council to address common legal issues related to the implementation of other NPR recommendations, and the training needed.
2. Use franchising and other market mechanisms to encourage OGC staffs to respond appropriately to their clients. (1)
Agency heads should encourage their general counsel staffs to be responsive to their clients. For example, they should clearly distinguish between OGC's service delivery and regulatory clearance functions. They should allow line managers choice in selecting legal assistance from the "service delivery" side. This choice could be via a franchising operation or other mechanism. In addition, agency heads should encourage better collaboration between legal staff and program offices in OGC clearance functions.
3. Develop performance measures and feedback loops for general counsels to encourage close cooperation with clients. (1)
Agency heads should develop performance appraisal plans for general counsels that would measure the results of OGC efforts to assist managers in their own efforts to be creative and entrepreneurial, within the constraints of law. General counsel offices must develop appropriate measures of performance with a special emphasis on quality of service to the client(s). These measures should be developed in collaboration with the agency line management structure. Feedback loops between the clients and the OGC staff members should be institutionalized.
Cross References to Other NPR Accompanying Reports
Improving Financial Management, FM06: "Franchise" Internal Services.
Department of Justice, DOJ09: Make the Department of Justice Operate More Effectively as the U.S. Government's Law Firm.
1. Waxman, Margary, "The Complete General Counsel," Office of Personnel Management, 1981, p. 23.
3. Interview with Arthur S. Flemming, former Secretary of Health, Education and Welfare, July 8, 1993.
4. Interview with Margaret Porter, Chief Counsel, Food and Drug Administration, August 5, 1993.
5. Letter from George Schlossburg, attorney with Cotten and Selfon, August 6, 1993.
6. Interview with Lorie Schmidt, staff attorney, Environmental Protection Agency, August 7, 1993.
7. Interview with Howard Lem, District Counsel for Washington Regional Office, Department of Veterans Affairs, July 13, 1993.
8. District of Columbia Bar, "D.C. Rules of Professional Conduct," March 1, 1990, p. I-5.
10. Letter from W. C. Parler, Nuclear Regulatory Commission, dated August 4, 1993.
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