Government Procurement: Reconceptualizing Public Interest for Public Lawyers (Michael Karanicolas)

Across every agency at the federal, state and local level, there is an army of lawyers that helps develop, guide, and implement public policy. When it comes to procurement, lawyers play a critical role in every step of the process including drafting RFPs, defining requirements, contracting, vetting vendors, and supporting compliance. There are obvious differences between, say, a litigator defending Pepsi, and a civil servant advising the government on distributing disability benefits. However, these distinctions are not always reflected in how the profession views itself. For all lawyers representing organizational clients, their basic duty is to “act in a manner reasonably calculated to advance the lawful objectives of the client entity as defined by persons authorized to instruct the lawyer on behalf of the client.”

Public lawyers tend to be cautious: In practical terms, this duty means public lawyers are focused on fidelity to their “client”, particularly in terms of limiting risk to the officials above them. In any large bureaucracy, from the Army to the Department of Agriculture, efficiency depends on an effective chain of command and centralized coordination. Cleaving to the interests and directives of senior officials creates a simple formula for public lawyers to follow. By contrast, having every employee work towards their own personal definition of what is best for the country is a recipe for dysfunction. At the same time, it is easy to imagine cases where the interests of senior officials might diverge from those of the public who they are meant to be serving, or where a focus on risk management may create a barrier to innovation or experimentation that could lead to improved outcomes. Government lawyers may feel inclined to stick to legacy processes and vendors, since the benefits of innovation would be externalized, while any risks are internal.

Transparency is another example where lawyers may counsel that the safest course for management is to closely guard information about internal workings. There are structural benefits to transparency, which is not only fundamental to democratic accountability, but can also help to root out waste and mismanagement. But individual employees may deprioritize these broad public benefits against the personal and professional challenges that accompany close public scrutiny of their work.

Public lawyers can operate with less scrutiny: Government lawyers whose role is mainly focused on public policy also operate outside of the traditional adversarial process. According to the American Bar Foundation, 28 percent of federal government lawyers report that they are not practicing law. In adversarial adjudication, the attorneys are each under an obligation to present facts in the manner most consistent with their client’s position, on the assumption that these two accounts will, together, lead to the truth of the matter. Outside of this process, government lawyers lack the same accountability against interpretations of the law which are overly creative or tortured. In other words, government lawyers have an especially free hand to push law or policy in new directions, making their understanding of whose interests they serve of paramount importance. Instead of focusing purely on advancing the interests of their agencies and superiors, government lawyers, including those dealing with procurement, should be centering efforts on improving access and outcomes for communities.

The unique role of transparency and public accountability to government lawyering argues for a reconceptualization of what it means to be a government lawyer, and who government lawyers serve. This may include specific changes to how secrecy and privilege apply, allowing government lawyers more freedom to speak out on questions of public concern, including when systems, processes, and vendors aren’t meeting the needs of those they are meant to be serving. But, more generally, it is important to grapple with ethical and professional responsibility questions around how government lawyers can orient their duties and obligations in support of the public they ultimately are meant to be working for.