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Using Government Lawyers to Animate Bureaucracy

01 Dec 1953-Yale Law Journal (JSTOR)-Vol. 63, Iss: 2, pp 197

About: This article is published in Yale Law Journal.The article was published on 1953-12-01 and is currently open access. It has received 1 citation(s) till now. The article focuses on the topic(s): Bureaucracy & Government.
Topics: Bureaucracy (61%), Government (55%)

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USING
GOVERNMENT
LAWYERS
TO
ANIMATE
BUREAUCRACY
RAYMOND
P.
BALDWINt
and
LIVINGSTON
HALL-i
A
BASIC
flaw
in
governmental
organization
is
the
lack
of
adequate
means
of communication.
A
new
administration
comes
into
office
determined
to
carry
out
policies
which
during
the
campaign
seemed
to
be
the
simple
cure
of
evils
besetting
the
country.
Once
in
the White
House,
the
president
finds
that
the
appointment
of
able
and
responsive
top
personnel
is
not
enough.
For
the
work
of
Government
must
be
carried
out
by
more
than
two
million
career
employees,
protected
in
their
jobs
by
civil service
legislation.
Unless
new
policies
can
be
communicated
to
them,
and
methods
are
found
to
translate
these
policies
into
action,
the
executive
branch
of
the
Government
is
like
a
man
with
a
new
head
which
is
not
yet
in
touch with the
varicus
parts
of
his
body.
It
is
half-paralyzed.
Its
"head"
tells
its
"hand"
to
pick
up
a
pencil
and
write
a
certain
message;
but
it
gets
no response,
because
there
is
no
nerve
connection
between
mind
and
hand.
According
to
a
high
official
of
the
present
administration,
his
Department
is
still
hampered
by
this
condition.
Properly
organized,
instructed
and
supervised,
the
lawyers
in
Government
can
help
to
correct
this
flaw.
They
can
enable
a president
to
put
his
policies
into
practice,
and
at
the
same
time
make
federal
bureaucracy more
efficient.
A
Government
lawyer
can
allow
himself
to
become
lost
in
the
channels
of
bureaucratic
machinery, moving
only according
to
fixed
rules, and
imposing
legal
restraint
upon
his
administrative
colleagues.
Or
he
can
remain
free--
with
that
independence
of
thought
and
spirit
which
lawyers
share
with
taxi
drivers-and
find
ways
to
facilitate
action
rather
than
to
restrain
it.
The
lawyer,
if he
will
but
maintain
his
independence,
can
be
the
unspoiled
civilian
in
Government.
Because
he
has
no
administrative
duties, he
can
observe
the
bureaucratic
machinery
from
a
sort
of
catwvalk;
and
because
of
the
freemasonry
of
his
profession
he
can
communicate
freely
with other
Government
lawyers.
Moreover,
he
can
see
that
high
policy
decisions
are
put
into
effect
at
the important
working
level,
and
he
can
help
coordinate
the
work
of his
own
agency
with
that
of
other
agencies
of
the
Government.
Coordination
is
particularly
important
in
periods
of
political
transition,
and
when
task-force
operations
become
necessary
in
a
national
emergency.
The
effectiveness
of
the
individual
lawyer
in
contributing
to
such
coordina-
tion
will depend
largely
on
the
organization
of
the
Office
of
General
Counsel.
tBoston
Regional
Counsel,
Renegotiation
Board.
"f'Vice
Dean,
Harvard
Law
School.

THE
YALE
LAW
JOURNAL
THE
OFFICES
OF
GENERAL
COUNSEL
The
formal
duties
of
a
member
of
the
legal
staff
of
an
executive
agency
differ
with
each
agency
and
with
each
grade
within
that
agency.
In
general,
however,
each
lawyer
serves
on
the
staff
of
a
General
Counsel,
the
chief
legal
officer
of
each
agency
who
is
sometimes
designated
as
the Legal
Advisor
or
Solicitor.
The
stated
duties
of
an
Office
of
General
Counsel
include:
(1)
providing
interpretative
legal
advice
on
all
phases
of
the
agency's
day-to-
day
activities,
both
to
the
agency
and
to
the
public;
(2)
processing
forms
filed
with
the
agency;
(3)
drafting
contracts,
orders
and
other
legal
docu-
ments;
(4)
rendering
legal
opinions;
(5)
representing
the
agency
in
negotia-
tions
with
private
individuals
and
corporations,
and
with
other
agencies
of
the
Government;
(6)
representing
the
agency
in
court
and
before
quasi-
judicial
boards
and
commissions;
(7)
preparing
and
reviewing
administra-
tive
rules,
regulations
and
reports,
and
drafting
proposed
legislation;
and
(8)
participating
in
the
policy-making
process
of
the
agency.'
Such
a
formal
cate-
gorization
nowhere
suggests
that
the
great
unstated
duty
and
opportunity
of
the
legal
staff
is
to afford
an
informal
means
of
rapid
communication
through-
out
a
particular
agency,
and
between
it
and
other
agencies.
Here
we
are
concerned
not
so
much
with
how
lawyers
do
in fact
now
function
in
all
departments
and
other
executive
agencies
of
the
Government,
as
with
ways
in
which
lawyers
in
Government
agencies
can
help
to
make
those
agencies
operate
more smoothly
and
get
their
jobs
done
more
efficiently.
The
methods
to
be
described
below
have
been
used
to
a limited
extent,
but
with
outstanding
success,
by
some
agencies;
and
their
use
fortunately
appears
to
be
increasing.
Crucial
to
the
success
of
the
proposed
function
of
lawyers
in
Government
is
the
proper
relationship
between
the
administrative
head
of
an
agency
and
his
General
Counsel.
The
administrative
head
of
the
agency
must
first
under-
stand,
and
then
want
what
his
General
Counsel's
Office
might
be
able
to
do
for
his
agency.
Furthermore,
he
must
have
a
General
Counsel
who
not
only
understands
these
opportunities
for
service,
but who
also
has
a
detailed
plan
of
how
to
organize
and
train
his
staff
to
actuate
agency
policies.
This
may
be
easy
if
the administrator
has
chosen
his
General
Counsel
with
such
an
end
in
view.
2
But
where
the
plan
originates
with the
legal
staff,
the
General
Counsel
may
have to
"sell"
it
to
the
administrator,
to
say
nothing
of
selling
it
throughout
the
agency.
If
the
administrator
is
in
any
doubt
about
the
desirability
of
the
plan,
he
must
be
convinced
that
the
General
Counsel
will be
loyal
to
him
through
thick
and
thin,
keeping
him
fully
informed
of
what
is
going
on
throughout
the
agency,
and
carrying
his
policies
and
those
1.
See,
FoRD,
THE
GovERN-MENT
LAWYER:
A
SURVEY
AND
ANALYSIS
oF
LAWYERS
IN
THE
ExEcur
W
BRA
cH
OF
THE
UNImT
STATES
GOVERNMENT
(1952).
2.
See
Neale,
Naval
Procurement
During
World
War
II:
Its
Legal
Aspects,
38
A.B.A.J.
213
(1952).
[Vol.
63
:197

USING
GOPVERNMENT
LAWYERS
of
the
Administration
down
to
the
working units
of
the organization.
This
loyalty
to
the administrator
raises
problems
at
lower levels;
but
none,
as
will
be
seen,
which
are
insurmountable.
Once
a
plan
for
training
and
organizing
legal
personnel
is in
operation,
each
General Counsel
should
be in
close
daily
touch
with the
administrative
head
of
his
agency.
For
this purpose,
it
is
desirable
to
have
the quarters
of
the
General Counsel
adjoin
those
of
the
administrator.
The
General
Counsel
should be
fully
informed
of
the
policies
of
the
agency
on
all
questions
of
importance
at
all
times.
He
should
participate in
the
determination
of
those
policies.
To
make
his
participation
in policy-making
of
the
greatest
value,
he and
his
staff
should
also
keep
themselves
informed
of
the
policies
of
the
Ad-
ministration
through
contacts
with
the
White
House
and other administrative
agencies.
Within
each
General Counsel's
office,
or
readily
accessible
to
it,
should
be
the
headquarters
personnel
required
for
legal
research,
drafting
and
interpretation
of
legislation
and
regulations,
and
the
preparation
of
con-
tracts
and
other
documents.
The rest
of
the
legal
personnel
should
be assigned
to strategic
points
in
the
administrative
organization,
for
the
purpose
of
im-
proving
intra-agency
communication.
INTRA-AGENCY
COMMUNICATION
The
organization
chart
contributes
most to
present
delay
and
inefficiency
in
Government.
At
birth
each
federal executive
agency
and
department
acquires
one of
these
charts.
The
name
of
the
department
or
agency
appears
at
the
top
of
the
typical
chart.
Below
is
a
box
for
the
administrative
head
of
the
agency.
From
him
runs
a
vertical
line
through
a
horizontal
line,
from
which
suspend
designations
of
the
offices
or
officers
of his
immediate
staff,
to
another
horizontal line
which indicates
the
administrator's
authority
over
his immediate
administrative
subordinates.
The
chart then
proceeds
like
a
family
tree,
with
the administrator
as
Father
Abraham,
and the admini-
strator's
authority,
like
Abraham's
seed,
being
carried
down,
subdivided
and
carried
farther
down,
until
it
has
shown
the
administrative
level
and
channel of
authority
of
every
person
in
the
agency.
For
purposes of
job
description
and
the
determination
of
rates
of
pay
such
a
chart is
no
doubt
useful.
When
insisted
upon,
as
it
usually
is,
as
a
pattern
of
normal
functional
activity,
it
is
frequently
a
source
of
frustration
and
inefficiency,
stifling
initiative and
causing inexcusable
delay.
An
official
on
the
working
level
may have
a
problem
requiring
consultation
with another
official
in
the
same agency,
on
the
same
level,
in
the
same
building,
even
in
the
same
room.
If
they
could
discuss
the
problem
freely
a
decision
might
be
reached
in
five
minutes.
Instead,
the
man
with
the
problem
must
write
a
memorandum,
route
it
through
his
immediate
superior
in
the
hierarchy,
then through this
superior
to
his
superior
in
turn,
and
so
on up until
it
finally
reaches
the
common
superior
of
the
two men who
might
have
talked
together.
1953]

THE
YALE
LAW
JOURNAL
It
must
then
find
its
way
down
through
channels,
until
it
finally
reaches
its
working
level
recipient.
The
memorandum
may
get
stuck
at
any
point,
because
one
official
in
the
chain
is
behind
in
his
work
or
in
doubt
as
to
his
duty.
And
it
may
take
days,
weeks,
or
even
months
for
the
initiating
official
to
get
a
reply.
By
occupying
a
position
outside
the
administrative
hierarchy,
the
legal
staff
of
an
agency,
if
properly
organized,
can
overcome
many
of
the
bottlenecks
and
delays
inherent
in
the
organization
chart.
To
achieve
this
result,
legal
personnel-and
this
is
the
nub
of
the
overall
plan-should
be
assigned
to
parallel
closely
the
active
working
units
of
the
administrative
organization
which
they
are
to
serve.
They
should
constitute
a
network
of
communication
throughout
the
agency,
not
unlike
the
nervous
system
of
the
human
body.
If
the
lawyer
assigned
to
an
administrative
unit
has
the
confidence
of
the
chief
and other
members
of
that
unit,
they
will
come
to
him
for
help
when
they
need
it.
And
through
the
communications
center-the
General
Counsel's
Office-where
one
lawyer
may
talk
with
another
directly,
the fault
can
be
quickly
located
and
remedied.
These
lawyers,
each
of
whom
should
be
sitting
at
the
elbow
of
an
admini-
strative
officer,
must
be
chosen
with
care.
Their
patience
and
tact
will
largely
determine
the
effectiveness
of
the
entire
plan.
For
in
Government,
as
in
busi-
ness,
lawyers
are
not
inherently
popular.
And
bureaucrats,
like
businessmen,
resent
any
suggestion
that
lawyers
are
trying
to
run
things.
But
in
Govern-
ment,
as
in
business,
the
lawyer
who
is
willing
to
subordinate
his
ego
to
his
cause
can
get
things
done.
These
working-level
lawyers
must
overcome
the
suspicion
that
they
are
part
of
a spy
system
for
the
administrator.
By
loyalty
to
the
administrative
unit
which
he
serves,
each
must
gain
the
cooperation
of
its
head
and
of
every
person
on
that
unit's
staff.
And
he
must
make
him-
self
so
useful
that
he
is
wanted
and
used.
3
For
the
plan
to work,
every
member
of
the
agency's
personnel
who
is
responsible
for
any
act
of
the
agency
should
have
ready
access
to
counsel.
He
should
be
made
to
feel
that
he
can
consult
frankly
and,
if
necessary,
confi-
dentially
with
the
lawyer
assigned
to
his
department,
branch,
division,
section,
or
other
unit.
The
working-level
administrative
subordinate
frequently
knows,
or
thinks
he
knows,
better
than
his
boss.
Under
the
present
system
he
is
often
unable
to
'have
his
views,
right
or
wrong,
considered,
because
of
adher-
ence
to
the
rigid
formalities
of
the
organization
chart.
His
immediate
su-
perior
says
no;
and
there
they
stop.
Working-level
counsel
should
hear
his
views.
If
they
are
right,
they
can
be
conveyed
to
the
General
Counsel,
and
the
immediate
superior
can
then
be
informed
from
above,
without
embarrass-
ment.
If
the
subordinate
is
wrong,
working-level
counsel
can
nevertheless
3.
For
an
excellent
analysis
of
the
lawyer's
function
in
Government,
see
Willcox,
Tic
Lawyer
in
the
Administratiom
of
Nonregulatory
Programs,
13
Pun.
ADmIN.
Rpm.
12
(Win-
ter,
1953).
[Vol.
63
:197

USING
GOVERNMENT LAWYERS
secure his
more
willing
cooperation
by
explaining
to
him
the
policy
reasons
for
his
superior's
stand.
An
example
of improved
intra-agency
communication began
early
in
World
War
II.
James
Forrestal,
then
Under
Secretary
of
the
Navy,
insisted
upon
taking an
active
part
in
the
procurement
of
armaments
and
supplies,
an
activ-
ity
which
was
under
his general
jurisdiction.
He
found
that
the
normal
channels
of
communication
within
the
Navy hierarchy
were
not
adapted
to
keeping him cognizant
of what
was
taking
place
at
the
operating
level.
To
remedy
this,
he
appointed
H.
Struve
Hensel,
4
an
outstanding
civilian
lawyer,
as
General
Counsel.
Hensel
set up
a
legal
office
composed
entirely
of civilian
lawyers
to
serve
those
engaged
in
the
business functions
of
the
Navy.
Under
him
were
bureau
counsel
for
each
of
the
technical
bureaus.
These
bureau
counsel,
some
one
hundred
lawyers,
handled
matters
arising
out
of
the
procurement
and
fiscal
functions
of
the
Navy, and
also
served,
though
not
ostensibly,
to
keep
the
Under
Secretary
fully
informed
at
all
times
as
to
what
was
going
on
at
all levels.
At
first,
Navy
procurment
officers,
as
well
as
the
lawyers
in
the
office
of
the Judge
Advocate
General
of
the
Navy,
resented
the
intrusion
of
the-e
civilian lawyers.
The
procurement
officers
objected
to
what
they
considered
the lawyer's
divided
loyalty-to
themselves,
and
to
the
Under
Secretary
of
the
Navy.
As
time
went
on,
however, they
came
to rely more
and
more
on
the
lawyers
at
their
elbows.
What
was
a
wartime
innovation
is
now
a
recognized
part
of
the
Navy's procurement program.!
The
Navy's
methods
of
organizing
its
Office
of
General
Counsel
are
being
adopted by
the
Air
Force.
6
And
there
are
advocates
for
its
full adoption
by
the
Army,
although
its
development
in
the
Department
of
the
Army
is
re-
tarded
by
existing
statutory
provisions
which
make
the
Army's
Judge
Advo-
cate
General
the
chief
legal
officer
of
that
Department.
7
Acceptance by
the
armed
services of
the
civilian
lawyer's role
is
a
big step
forward in
intra-
agency
efficiency.
Its
adoption
by other
agencies will
depend
upon
recogni-
tion
of
its
value
by
the
administrators
of
those
agencies
and
by
the
men
appointed
as
their
General
Counsel.
Where
the
agency
has
regional
offices,
a
similar
setup
is
necessary
for
the
proper
integration
of
the
agency as
a
whole.
The
wartime
Boston
Regional
Office
of
the
Office
of
Price
Administration
is
a
good
example
of
such
an operation.
The
entire range
of
commodities
handled
by
the
O.P.A.
was
divided
among
twelve
to
fifteen
"commodity
men"
who
were
not
lawyers.
Five
or
six
lawyers handled
the
same
range, and
each
lawyer had
his
desk
in
the
midst
of
the
two
or
three
"commodity
men"
who
handled
the
same
4.
Now
General
Counsel
of
the Department
of
Defense.
5.
See
Neale,
supra
note
2.
6.
Vorenherg,
The
Office
of
General
Counsel
of
the
Air
Force,
HIAnavm
Lw
Scuor
.
BuLL.
(June,
1953).
7.
10
U.S.C.
§§
61-3
(1946).
19531

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