D.C. Bar Hosts Inaugural Legislative Counsel Summit
May 15, 2024
At the inaugural D.C. Bar Legislative Counsel Summit on May 9–10, more than 70 attorneys from government agencies, lobbying groups, and academic institutions gathered at Bar headquarters to discuss the latest developments in the legislative landscape, including ethical issues confronting attorneys in the field.
A session on the first day focused on U.S. Supreme Court decisions impacting bill drafting. Panelists focused on one trend in particular: the Court’s uneven application of textualism in interpreting statutes and in determining the validity of agency doctrines. Megan Browder, deputy attorney general of the Legal Counsel Division at the Office of the Attorney General for the District of Columbia, opened the discussion by quoting Justice Elena Kagan’s comment in 2015 that “we are all textualists now.”
“Maybe we’re not all the same kind of textualists. I think what we see now going on in the Supreme Court are two very different kinds of textualism,” Browder said.
One example of the varied approaches to textualism is Pulsifer v. United States, which centered on the interpretation of the word “and.” Decided in March 2024, the case involved a “safety valve” provision in federal criminal sentencing laws allowing certain defendants to avoid the application of mandatory minimums. The law allows a district court to impose a sentence lower than the minimum required if the defendant does not have “(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” Pulsifer’s history included (A) and (B) but not (C), and so the debate centered on whether the “and” in the statute’s formulation required the prosecution to establish all of the disqualifying conditions, or any one of them.
The government argued that the phrase created an eligibility checklist in which failing any requirement meant failing all three, while the defense held that failing all three was required by the plain language of the statute. The High Court decided that a defendant must satisfy each of the three conditions to be eligible for sentencing relief, which Pulsifer did not. “The Supreme Court affirmed the Eighth Circuit in holding that it is an eligibility checklist and not a single disqualifying characteristic,” Browder said.
Regarding agency policy, panelists discussed the potential elimination or restriction of the Chevron doctrine. Michelle Kallen, a Jenner & Block LLP partner who formerly served as solicitor general of Virginia, drew attention to the Court’s increased interest in advancing another doctrine relating to review of agency authority — the major questions doctrine.
“It’s the idea that, in areas of significant national importance, courts should hesitate to conclude that Congress conferred authority on agencies unless Congress conferred this authority very clearly,” Kallen said, adding that the approach turns Chevron on its head.
The major questions doctrine was central to the Supreme Court’s 2022 decision in West Virginia v. EPA, holding that in extraordinary cases where an agency asserts significant powers, the Court should hesitate before determining that Congress properly provided such authority.
“The Court agreed with a group of states and coal companies that the Clean Air Act did not give the EPA expansive power over carbon emissions,” Kallen said. “The holding was that the EPA’s effort to regulate greenhouse gases by making industry-wide changes violated the major questions doctrine, and it cemented the idea that if Congress wants to give an administrative agency the power to make decisions [of] economic and political significance, it must do so very clearly.”
Ethical Minefields
The summit also tackled the many ethical issues raised in legislative practice, a point of uncertainty since federal attorneys are not required to hold a D.C. Bar license.
In the session featuring D.C. Bar legal ethics counsel Erika Stillabower and Nakia Matthews, the discussion provided insight into the applicability of the D.C. Rules of Professional Conduct. “It’s very important that when you are operating in multiple jurisdictions, or you’re operating in a jurisdiction (under an exception) where you are not licensed, that you give [Rule 8.5] a look because it could really determine your next course of action,” Matthews said. Matthews noted that attorneys may be subject to multiple rules of ethics, depending on their practice.
The panelists addressed common ethics questions through a series of hypotheticals, such as whether contacting a legislative member to discuss policy violates the D.C. ethics rules preventing an attorney from contacting a represented party. Matthews said that Rule 4.2, which has a limited carveout for attorneys contacting a government official to seek redress, likely would apply, providing that the individual revealed their status as an attorney and disclosed their representation of an adverse party.
Stillabower, however, cautioned that the Rule 4.2 carveout requires careful consideration, particularly for those who don’t normally litigate, such as agency attorneys involved primarily in policy issues. Discussions with a represented party could still trigger a violation where the elements for the exception are not present, she added.
Stillabower further illustrated the complexity involved in applying ethics rules to government attorney activities with her question about whether lawyers who work for the House Office of Legislative Counsel have a client. An audience member responded that the clients are the legislative members and the committees, and Stillabower countered with the question of whether it is an attorney–client relationship.
Stillabower viewed this as an open question, as what constitutes the practice of law and the existence of an attorney–client relationship are guided by law external to the ethics rules.
The session ended with a look at D.C. Rule 1.11, which prohibits an attorney’s employment “in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.”
Stillabower said that this rule departs from other conflicts rules, which are largely centered around the idea of adversity or risk to current or former clients, and that it is intended in part to prevent the appearance of impropriety.
Determining whether a conflict exists under this rule typically involves a very fact-specific analysis. “To my knowledge, we have one significant disciplinary case on this rule,” she said, citing In Re Sofaer, involving a lawyer who participated in the State Department’s investigation of the bombing of a passenger plane over Lockerbie, Scotland, and then went on to represent the Libyan government in a substantially related matter. “It was a very clear violation, but hopefully that gives you some comfort that you’re not coming up against any lines like that,” Stillabower said.
