Increase Effectiveness of Offices of General Counsel

Increase the Effectiveness of Offices of General Counsel

Background

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.

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.

Endnotes

1. Waxman, Margary, "The Complete General Counsel," Office of Personnel
Management, 1981, p. 23.

2. Ibid.

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.

9. Ibid.

10. Letter from W. C. Parler, Nuclear Regulatory Commission, dated
August 4, 1993.