Publication Date

4-2016

Volume

84

Document Type

Article

Abstract

There is amazingly little contemporary research on the counseling function of government agency lawyers. Most research on federal government lawyers focuses on the Department of Justice, the Attorney General, or the birth of the modern administrative state during the New Deal. Much of this work focuses on the organization of federal litigation authority. At the state level, likewise, recent scholarship focuses on the litigation function of state attorneys general. Meanwhile, we know very little about the agency counseling function or the role of agency counsel in shaping agency policy and practice.

The role of state agency general counsel is an important topic. Like corporate counsel, agency general counsel are positioned to provide day-to-day, front-end advice about a wide range of issues, and in the absence of litigation, much of this advice is not reviewed. Agency counsels’ interpretation of statutes and regulations may significantly shape formal law — or create an institutional precedent that affects the de facto implementation of state law for years to come. Agency counsel also have significant influence over the make-or-buy decision and the choice of private counsel for agency litigation. Yet because the work and structure of authority in each state agency is so different, agency general counsel tend to operate in a professional vacuum, with no immediate peer group among attorneys, and many other potential sources of authority. Thus, agency counsel have broad discretion, but little accountability or guidance.

This paper examines the role of agency general counsel in North and South Carolina. Our account draws on interviews with current and former agency counsel, agency directors, and lawyers in the state attorney general’s office, as well as roundtable discussions among agency counsel on topics of common interest. Part II examines the structural evolution of the agency general counsel position and the functional division between in-house agency counsel and the attorney general’s office. Part III examines the characteristics and career paths of lawyers who serve as agency general counsel and identifies sources of authority in their roles. We conclude by outlining questions for future research.

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Reposted with permission of the author and Fordham Law Review, 2017.

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