Are the Feds courting uncivilized thoughts with private counsel?
Except in my profession. In almost every case, government-employed lawyers provide
legal representation for federal agencies. Contracting officers must use the agency
counsel assigned to them, and government lawyers, of course, must represent their
agencies. This shotgun marriage makes for unhappy clients and unhappy lawyers. In the
private sector, free choice insures that clients get the representation they want. And
lawyers can walk away from clients who make unreasonable or unethical demands.
Civil service lawyers still should provide advice and consultation to contracting
officers. The familiarity with agency operations that comes with repeated contact and the
need to coordinate policy favor employed attorneys. But for litigation, contracting
officers should be able to choose the lawyer they want, instead of having to take the
lawyer they get. Let competition and the free market determine who performs this function.
This idea of having private counsel represent the government in civil litigations
sounds radical, but there is precedent in the British legal system. Traditionally,
criminal prosecutions in the United Kingdom are handled by the same barristers who
represent defendants. A director of public prosecutions selects barristers to represent
the Crown. If the British can have private counsel prosecute alleged criminals, Americans
can entrust their government's contract litigation to the lawyers who represent
In one respect, however, this proposal could be revolutionary. Legal representation in
litigation is free for the contracting officer. Of course, agency budgets pay for lawyers,
paralegals and support staff, rent offices, and buy law books and computers. But these
resources are available to procurement staff without accounting for their use or their
But things might change if the government were to retain and pay for counsel the way
contractors do. A contracting officer might think more carefully about refusing to
negotiate a claim or dispute. Alternative dispute resolution might look more attractive.
And the amount in controversy would probably play a prominent part in deciding which cases
the government would fight and which it would settle.
The scales now are tipped heavily in the government's favor when it confronts a small
business contractor. Under my proposal, the government would still have deeper pockets,
but the visibility of fees would bring a new level of accountability to the process.
What would become of all the government attorneys who would lose their jobs if
litigation were contracted out?
Their experience would make them desirable employees for existing law firms. Those with
entrepreneurial yearnings could start their practices and compete for business from their
Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &