First Things First: Teaching Responsible Government Lawyering in Washington, D.C.

 

By Michael L. Shenkman ’06, fellow of the Columbia Law School Center for Law and Politics & Lecturer-in-Law

 

In the fall of 2010, Columbia Law School launched a federal government externship program in Washington, D.C.  At the time, Dean David Schizer described the initiative as part of a broader effort to offer students deep and rigorous engagement with the latest trends in our profession.  Students spend an entire term living in Washington and working full-time in various departments and agencies while enrolled in courses about government lawyering, which I have had the privilege to design and teach.

 

Our program’s curriculum explores the American system of separated institutions sharing powers and the pathways of legal policymaking.  A semester-length seminar leverages an extraordinary roster of guests—many of them Columbia Law School alumni—who range from early career government lawyers to judges and subcabinet officials.  With their help, the students learn about congressional influence on the executive branch, the role of the Department of Justice, the operation of the White House Counsel’s Office, and the functions of agency general counsels.

 

But no instructional content is more important than responsible public practice.  In setting up the externship program, Dean Schizer and Dean for Social Justice Initiatives Ellen Chapnick defined our objective as helping train fine lawyers who also will be fine leaders in public life.  To that end, last year we added a mandatory and intensive one-credit government ethics course, which students complete in the week before beginning their externship field placements.  Professors Trevor Morrison ’98 and Nathaniel Persily, faculty co-sponsors of the D.C. externship program, guided development of the new curriculum along with Professor William Simon, who oversees the Law School’s professional responsibility program, and James Tierney, director of the National State Attorneys General program.  The course we built is the aspect of our federal government externship that makes me proudest.  As far as I know, we are alone among law schools in placing ethics first in our Washington curriculum.

 

Among other reasons, this is probably because government ethics is a squishy subject to teach.  There are plenty of relevant statutes and regulations, but they guarantee ethical government only in form, not in fact.  A major theme of our ethics course is the impossibility of writing rules that alone ensure legal counseling that is responsible and decision-making that is free of conflicts of interest, which we—as citizens and as lawyers—expect.  Many government attorneys provide advice that is unlikely to be reviewed by a court, and so special obligations attach beyond an advocate’s best defense of considered action.  In our course, we talk about finding the law outside courtrooms and other tribunals—in places where there may be no adversarial case.  We work to define what it means to help the President carry out the constitutional responsibility to “take care that the laws be faithfully executed.”  We talk about the challenge of serving a hydra-like client, often comprised of a line manager, the Attorney General, the President, the Executive Branch in its entirety, and, finally, the public interest.  We examine what ethics rules and standards cover and yet what they leave out.  Through these discussions, we are engaged in the difficult project of teaching and learning good judgment about government lawyering.

 

The absence of black-letter answers does not imply a lack of concrete content.  Key ideas in our ethics course include:

·       Fidelity to the law requires participating in a community of interpretation.  In Legal Methods class, on my first day as a student at Columbia Law School, Professor Jane Ginsburg said that: “Law and law study are collaborative enterprises, and if you try to do either one alone, it is not going to work.”  This is important advice—especially for government lawyers.  Following disclosure of the “Torture Memos” issued by the Justice Department’s Office of Legal Counsel, the legal academy reminded government lawyers about the need for multiple layers of scrutiny and approval as well as reasoned written opinions in making final judgments of law.  Columbia’s own Trevor Morrison has written about how process, legal community, and institutional identity can offer meaningful traction on government behavior in the White House Counsel’s Office and in OLC.  It is essential to train our students to see themselves within the traditions of this collaborative approach to practice.

 

·       Rule-based ethics amount to only one ingredient of good government; culture is essential to an effective ethics regime.  Reforms motivated by the shaken sense of confidence in public life after Watergate led to extensive requirements for financial disclosure by people in government and a mandatory course in all law schools that tells future lawyers not to commingle their own funds with client money.  This is all well and good but hardly a place to stop.  Meaningful learning about ethics in government demands more than rule-based training:  it calls for ongoing conversations about what ethics entail in practice.  Most students—along with most government employees—do not know about the Office of Government Ethics-issued Standards of Ethical Conduct, including their first axiom: “Public service is a public trust.”  The standards are law, but they are enforced only to the extent that agency leaders give content to them—something Columbia Law School is training the future leaders in our program to do.  Ethical public administration needs to be modeled and mandated from the top down.  Leaders must demonstrate that it is okay to seek advice about ethics, promote conversation about doing the right thing, and convey an expectation that an entire agency makes these questions integral to all of its work.  We are equipping students to identify ethical issues and discuss them, rather than simply to accept how things are done.

 

·       Knowing when to leave is essential.  Our course includes required reading on the resignations of, among others, Elliot Richardson and William Ruckelshaus during Watergate’s Saturday Night Massacre—stories of distinguished public servants and legal heroes who left their jobs rather than surrender their principles about the independent administration of justice.  During the seminar, however, students grapple with the relevance of these historical examples, naturally asking:  What does this have to do with us?  Even when I play audio of Richard Nixon telling his senior DOJ officials to compromise legal integrity on pain of dismissal, the prospect of a call from a future president with instructions to disregard the law seems remote.  But this is the public law analog to the private practice question of when to fire the client.  The purpose of discussing limits is not only to point out that resignation can be an essential matter of conscience, but also to illuminate the professional independence necessary to give effect to the constraining power of the law.  We train our students to think critically and preemptively about the boundaries of ethical public service, so they will not cross the lines—and so they avoid brushing up against them.

 

Nearly a half-century ago, Judge Jack Weinstein ’48—then a full-time member of the Columbia Law School faculty—wrote that “government service, while it furnishes some of the hardest ethical problems, affords a lawyer many of the greatest opportunities for professional fulfillment.”[1]

 

Through our externship program and its ethics course component, we are helping prepare Columbia Law School students for both these professional challenges and rewards. It is meaningful and important training no matter where their career paths take them. 

 

---