Is Working for the Government Public Interest Lawyering?

In my post on the taxonomy of public interest lawyering, I focused on public interest work at non-profit organizations, but there are several other types of public interest jobs. One category of public interest lawyering that might appeal to you is government. It is by far the largest category of public interest jobs. It is also more common for lawyers to spend part of their career in government and part of it in the private sector than it is for people to jump back and forth between non-profits and law firms. It may seem like an attractive option. The salaries are slightly higher than at non-profits, and the hours may be less.

You might ask yourself, though, whether government work is truly public interest lawyering, or whether it is another kind of lawyering entirely. On one hand, our government is supposed to be acting in the public interest, so in a way working for the government is public interest work by definition. On the other hand, we all know that often the government does not act in the public interest, and government lawyers frequently facilitate that misconduct. One need only look at the Office of Legal Counsel’s memo justifying the CIA’s torture program during the Bush Administration to find an example of government lawyers who put their position above principles. White House counsel John Dean is another example. Can it be said that these lawyers were engaged in public interest lawyering simply because they were employed by a government entity? I think the answer is obviously no.

Of course, the same could be said about public interest organizations, who may take positions or represent causes that many people believe are not in the public interest. But I do think there is something unique about working for the government that means which makes it harder to uphold your principles than in other contexts. For one thing, every few years the policy preferences of your bosses will change, often resulting in huge swings in the legal positions you are taking. For another, the culture of government work is very different than at non-profits. Lawyers are expected to serving the government’s interests whatever they may be, whereas non-profits are more value-based. I can’t think of a public interest organization that would require a lawyer to take on a client or cause that they found morally reprehensible, so long as that lawyer could participate in other work of the organization. The government asks that of its lawyers all the time. (So, too, do private sector employers, but at least there is no veneer of respectability that comes with supposedly acting in the public interest. Corporate lawyers know they are serving their clients’ interests, not the common good).

Finally, because the government has its own institutional interests that often get conflated with the public interest, it’s easy to believe that you are working in the public interest simply because that is what the government is supposed to do. That’s a mistake, as the examples above make clear.

That doesn’t mean you cannot be an ethical government lawyer, but you have to be willing to quit when you are asked to do something morally questionable. Many people are not willing to do that, or are at least willing to twist themselves into a pretzel to justify their decision to remain in their jobs.

There will also be times that you don’t feel strongly enough about something to quit, but you know that you would probably make a different decision if it were up to you. All lawyers face this dilemma to some extent, but government attorneys don’t get to choose their clients. That gives government attorneys less control over what positions they end up taking and, ultimately, may mean you face more ethical challenges than lawyers practicing in other contexts.

But we need good people working for the government, and it may feel like the right decision for many aspiring public interest lawyers. Just remember: government lawyers, like the rest of us, don’t get a pass just because they are working for an institution that claims to be doing good. We all have to make sure we’re practicing public interest law each and every day.

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