ABA panelists talk about transition from government to private practice

Different ethical standards exist for attorneys transitioning from the government to private practice. And former government lawyers face legal restrictions related to representation on certain matters, contact with governmental agencies and compensation. In addition, the Model Rules of Professional Conduct articulate standards to govern the behavior of former government lawyers entering private practice.

At a lunch-and-learn session held last month at the Washington Health Law Summit, two former government lawyers talked about their experiences making the transition into private practice:  White House Counsel Harriet Miers, is now a partner at Locke Lord LLP in Dallas, and Mark D. Polston , former deputy associate general counsel for litigation in the Office of the General Counsel, CMS Division at the U.S. Department of Health and Human Services is a partner at King & Spalding LLP in Washington, D.C. The session was moderated by Donald H. Romano of Foley & Lardner LLP in Washington, D.C.

In deciding which firm to join as he left government a few years ago, Polston said he looked for a place that understood what he was trying to accomplish and knew how to utilize him. He said he was keenly aware that he’d be coming in with zero book of business, and felt he needed to be comfortable that any firm he joined understood that he needed a “long runway” in this area. When you start a job in government, he said, they hand you your work. But when you start in private practice, you have to go out and find it. Polston said King & Spalding understood his business plan and his initial limitations and were committed to him.

Miers said that she practiced general litigation before joining the George W. Bush Administration, but since returning to Locke Lord in 2007 she now has a hybrid practice of litigation and public policy, which she described as exciting and enjoyable.

In a discussion about managing the expectations of clients who may have unrealistic ideas about how quickly you can accomplish things for them, Polston said he was surprised what a mystery the government is for some people. Routine information for  those who work inside government consider routine, such as what agency works on what and how the chain of command works, can be very valuable to a client. But he said it was important to manage any expectations a firm may have that you can get the government to do what you want.

Miers said she’s been surprised at the hostility toward government and that she spends a lot of time explaining to clients why the government does things the way it does and the reasons for certain regulations and rules. Polston agreed that being able to explain the government’s perspective and the dynamics between agencies is valuable.

The two also agreed that there is a popular misconception of the government as a monolithic force. Miers used the example of immigration as an issue that government entities see from various viewpoints, including as a humanitarian issue and as a national security issue. She said there is no uniform opinion on most issues, but rather a variety of opinions and programs about them.

The hardest part of preparing to leave government service, Miers and Polston concurred, is figuring out the ethical boundaries going forward. For Miers, it was figuring out the areas in which she could absolutely not be involved. Having the right person to go to for advice is critical, “even if it is hired counsel,” she said. In addition, people in government will help you figure it out, she said, because “the ramifications of making a mistake are just too large.”

Polston said when he was leaving the government he went to the HHS ethics counsel for the basic rules, but they made clear that the D.C. Bar rules are even more stringent. Even with all that, he said, gray areas need to be navigated. Polston made a list of things that were always going to be off the table, but said there are still “innocent inquiries” that come up where he puts himself into “defensive mode” to stay on the right side.

According to Miers, the worst thing you can do to your reputation is to be outside the government and trade on your conversations with those on the inside for your personal profit. She advised telling clients that preferential treatment cannot be attained. “Some of my most valued relationships were with career (government) people,” she said, “and those relationships need to be protected.”