I have always been attracted to public service. A number of my colleagues from my time at Gibson Dunn had gone on to serve as solicitors general in state attorney generals’ offices. Those offices provide unparalleled opportunities, such as the chance to argue appeals and challenge areas in which the federal government has exceeded its powers and placed onerous regulatory requirements on the state. So I was very grateful to have been offered the opportunity to work in the West Virginia solicitor general’s office.
In 2017, I became the general counsel (GC) of the Federal Communications Commission (FCC). I am primarily responsible for two components – reviewing Commission rules and orders to ensure they are legally sustainable, and defending those actions in court. I also oversee units that deal with fraud and bankruptcy issues, as well as various internal issues like employment matters. In West Virginia, I supervised four or five attorneys at any given time. Now, I oversee a team of more than 70 lawyers, so I’ve had to focus a lot more on learning how best to allocate my time and how best to delegate.
I came into this position with a generalist understanding of administrative law and appellate law. And while I had done some communications work, I definitely rely on staff to brief me on particular areas that require a lot of technical or substantive expertise. But one benefit of a generalist perspective is that I’m in a good place to understand what sorts of questions and issues a judge might have and how they will approach reviewing a particular Commission action, and to ensure that what we’re doing is likely to be upheld in court.
The first few weeks in the role were probably the most challenging – you inherit a whole world when you come into a federal agency, and so the early days are occupied with learning names, learning people’s responsibilities, and learning the various practices and processes at the agency. Once you have had some time to reflect on that, you can start to think constructively about what is working, what is not working and what you would like to change.
Along with one of the new deputies that came in with me, I spent a lot of our early weeks scheduling meetings, both with different team leaders from the office of the GC, as well as with our stakeholders in the agency. That meant they could put a face to a name and we could show we could learn about what they were doing and also how we could improve the relationships between the office of the GC and other offices within the agency. We have tried to create an open-door policy so that folks who have pressing issues can come to us directly. That is the way in which we tried to immerse and integrate ourselves early on.
Oftentimes, the perception of a GC, whether in a federal agency or the private sector, is of someone who has the unfortunate responsibility to say no a lot of the time. A GC certainly needs to be aware of the legal prohibitions, and there may be times when they need to say no, but that person should also think of themselves as a facilitator, to help further the agency’s mission consistent with the law. In the grey areas, the GC needs to be clear in articulating what the various legal risks are, but to also help the organisation achieve its objectives.
Unlike the private sector, we do not have the option of using outside counsel to represent us for particularly challenging or time-intensive matters. That is part of the challenge, but it is also part of what makes the job exciting. At the FCC, we have our own in-house litigation division, so that’s different from some agencies, who rely exclusively on the Department of Justice to handle the cases that end up winding their way to court. It allows us to be more holistic in how we approach legal problems, evaluating at the outset whether the rules or the orders that we’re adopting are easily sustainable – with one eye towards what sort of arguments we can make if they are challenged in court.
Another consideration is that attorneys in private practice divide their time among multiple clients, but when you work for the government, your client is ultimately the people. This means there is much more focus on how the positions you are taking will serve the public interest as a whole – not only in the case in front of you, but also long after you have left office.
‘The increasing complexity of the modern administrative state will mean GCs are going to need to be much more conscious of what counterparts are doing in other agencies.’
One benefit of being in a management position working for the state is that it allowed me to be a lot more entrepreneurial. The attorney general was very receptive to attorneys coming up with ideas of how best to further the state’s interest, even if that meant initiating a lawsuit in federal court to challenge federal rules as unlawful. Because we had a lot of authority and ability to think of creative solutions, there was also a lot of trying to stay on top of legal and political developments in the news and trying to ascertain how we could best further the agenda of helping the people of the state when the federal government passed a rule that could adversely affect their interests.
Another thing a GC in federal government can do is focus on institutional issues that will affect the agency – not only in your time – but also in the future. There are some perennial issues that agencies encounter, like: how do we fund our programmes and activities, how do we manage documents and data collection preservation? While these are not issues that take up a majority of my time, they are mission critical, so they are opportunities to think through how to set processes and procedures in place that will be consistent with both our legal obligations but also introduce efficiencies into the organisation so that future people who come into my position will benefit.
Looking ahead, the increasing complexity of the modern administrative state will mean GCs are going to need to be much more interdisciplinary and also conscious of what their counterparts are doing in other agencies. There are a lot of areas where agencies share jurisdiction, where jurisdictions overlap, where consultation is required by law, or where review is necessary before action can be taken. So it is increasingly important for GCs to know what those requirements are, who to call at other agencies to get things done, and who the different stakeholders in the process are.
I also think keeping on top of technological developments is going to be important. The tools that lawyers are using are constantly evolving, and the role that social media is playing in government messaging is evolving. And in the private sector, with respect to a lot of the entities we regulate, oftentimes the law may not evolve quickly enough to catch up with technological change. These factors are going to present challenges for lawyers to exercise good judgement in determining how existing laws apply to new technological developments and unforeseen situations. The answer in a lot of these cases will be for the federal government to get out of the way of competition and technological developments that are occurring.
There are two pieces of advice that I would like to give other attorneys. The first is to be flexible in your career path and open to taking risks when a new opportunity comes your way that excites you. I would never have believed it if you had told me a few years ago that I would be deputy solicitor general of West Virginia, and then GC of the FCC, but those opportunities have been both a really enjoyable and rewarding experience, and I would encourage other lawyers to do the same.
The second is that it is really important to cultivate a reputation for integrity and excellence among your peers starting in law school, because those are the people who one day are going to be in a position to speak to your character and your qualifications if the right opportunity comes along. LB
Alex Speirs is the editor-in-chief of GC magazine.