Legal rights mean little without lawyers to enforce them.
In 2017, Dick Thornburgh, former attorney general of the United States, delivered the message above as part of his advocacy for increased Legal Services Corporation funding. Although the message was intended to emphasize the importance of lawyers who represent individual clients, the quote applies equally to government attorneys who are ultimately responsible for enforcing both the law and legal rights within it.
Serving this role well—as enforcer of laws and enforcer of legal rights—is foundational to the very concept of government on which our country was established. As the Declaration of Independence provides, government power derives from the “consent of the governed.” We cannot have one without the other. To be effective, then, government attorneys have dual duties to enforce laws in the public interest and to enforce the legal rights of those subjected to the execution of those laws. This is no easy task. The remainder of this article will provide details on how to deliver this type of legal advocacy in practice, with a particular focus on attorneys practicing child welfare law.
One of the greatest privileges of my career was serving in the General Counsel’s Office at the U.S. Department of Homeland Security (DHS), where I was responsible for representing the government in complex, high-profile litigation ranging from national security to immigration, employment, and even maritime law. As in-house counsel, I was also responsible for advising agency leaders on how to execute our mission and legal responsibilities while protecting and respecting individual rights.
An early mentor explained to me that there were three models for how to do this work: the Yes attorney, the No attorney, and the Mission-Driven legal counsel.
The Yes attorney wants to help achieve important government missions and objectives. When consulted for advice, this counselor will almost always give a green light. In the short run, the Yes attorney is great for their quick response and unwavering support of the mission. In the long run, however, the Yes attorney is dangerous both for the government actors, who cannot rely on legal guidance they receive, and for the governed, who are subjected to poorly analyzed government action. This approach is also dangerous for how it diminishes the profession: Once someone is labeled a Yes attorney, they are rarely consulted a second or third time because their legal advice simply isn’t trusted, even if it initially offered a swift green light.
By contrast, the No attorney finds a reason why every proposed government action is illegal or ill-advised. They offer a red light and corresponding red tape to everything they are consulted on. The No attorney stymies the purpose of the government role by discouraging action, delaying important work, and blockading implementation of the mission altogether. Ultimately, this seemingly risk-averse counselor also proves dangerous because, when faced with a No attorney, the client will seek opportunities to work around counsel, often risking liability by avoiding the entire process of seeking legal input.
In both models, the Yes and No attorneys often make themselves obsolete because they burn through the trust and the patience of their government colleagues. Neither approach is fair to the public servants charged with executing the law nor to the public who is governed by it. No one serving in a complex and important role as a public official—from a front-line social worker to a high-ranking federal leader—wants to receive a careless green light from a Yes attorney that could violate individual rights and embroil the agency in legal battles. Likewise, no one wants to have their hands so tightly tied by a No attorney that they can’t execute the laws in the first instance. So, where does this leave us?
The Mission-Driven government lawyer, the type my mentor was obviously encouraging me to strive to be, sees their role differently. This attorney understands client objectives, implements the agency’s goals and mission, and remains fiercely loyal to the Constitution, the laws of the land, and the people who have consented to be governed by those laws. In other words, this attorney is responsible for helping a government client execute the law while respecting the boundaries inherent within it, especially boundaries defined by individual rights.
When counsel is sought, the Mission-Driven attorney seeks first to understand the goals of their government colleagues and then to understand the potential legal risks in effectuating the same. They do not ignore obstacles but also do not dwell on them as insurmountable. Instead, their duty is to take a collaborative approach, working with colleagues to address those obstacles while identifying and respecting the legal boundaries they entail. For example, at DHS, I had an obligation to help enforce immigration laws while also ensuring that we protected individual due process rights as a part of any enforcement actions—two goals that can sometimes seem in tension.
One reason to protect those rights is to help the agency avoid litigation, which can be distracting and interfere with larger mission responsibilities. The more important reason is that our system of government depends on it. The power of government falters if the consent of the governed is withdrawn based on mistrust or misuse of that power. At its most basic level, then, the Mission-Driven government attorney sees their work as an extension of two complementary missions: the specific mission of their government agency and the larger mission of protecting the rights of the people, including those who are subjected to enforcement of the laws.
In the child welfare legal space where I currently work, these complementary missions apply every day. Government attorneys are responsible for representing the public interest in protecting children from abuse while also enforcing the constitutional rights of each child and parent who experiences involuntary government intervention in their family. It is not enough to ensure that individual rights are protected through access to counsel once a case reaches court. By that time, multiple rights violations may have already occurred. For example, before a case becomes active in court, there are legal limits around government entry into the home, consent for social workers to speak with potential parties to the case, and due process protections in advance of family separation.
It is rare that a caseworker or even agency leader will be well-versed in all the legal protections that apply to children and parents with whom they interact in child welfare work. To make matters especially complicated, we often describe the role of a caseworker as a “social service” for children and families in ways that fail to account for the power differentials embedded in a system with the authority to take a child away from a parent. This is why it falls squarely on government counsel to make sure colleagues who take those actions are aware of how to execute their responsibilities with respect for the legal rights of the very individuals they seek to serve.
Schulkers v. Kammer, a Sixth Circuit decision, illustrates the point well. In this decision, the federal appellate court concluded that several child protection workers had violated child and parents’ constitutional rights by interviewing children in school without a warrant or parental consent. Because those actions had not previously been established as constitutional violations, the workers were entitled to qualified immunity. Importantly, however, the court also made clear that any similar actions in the future would not be protected under qualified immunity because the law is now clear that these are rights violations. This case now applies as binding precedent in Kentucky, Michigan, Ohio, and Tennessee. By extension, government counsel in each of those states has a responsibility to provide guidance on that precedent for all child welfare caseworkers and agency leaders, both to protect child and parental rights and to protect the government employees in fulfilling their important mission without inadvertently violating rights.
Spahr v. Collins, a subsequent case decided in the Third Circuit, demonstrates the problem of failing to focus on these dual interests when providing guidance to government clients. In this case, parents argued that a caseworker had violated their constitutionally protected rights when she coerced the children’s mother into signing a child safety agreement (CSA) requiring a transfer of custody to a relative. The children’s mother alleged that the caseworker had refused to tell her where her children were being held, required she sign the CSA in the dark when she could not read it, and threatened that her children would be placed in foster care rather than with relatives if she failed to sign.
Government counsel asserted qualified immunity, arguing that none of these actions by the caseworker were clearly established as constitutional violations. The district court disagreed, concluding it is “clearly established that parents have the right to not be coerced to relinquish custody of their children without due process of law.” On appeal, the Third Circuit reversed and granted qualified immunity after finding there was no existing precedent that these specific government actions were a violation. In a concurrence, one appellate judge noted that even if the specific actions were not clear violations, “a parent’s loss of physical custody of a child is unquestionably a deprivation of a constitutionally protected liberty interest.” In other words, qualified immunity prevailed but not without a larger cost to the family who had been harmed.
This outcome—a grant of qualified immunity despite a recognized violation of rights—raises an important consideration for government counsel. If a government attorney’s goal is to shield colleagues from liability after violating constitutionally protected rights, then a dismissal like this is worthy of celebration and repetition. If, however, the goal is to represent the interests of the government and the governed, then a win on qualified immunity grounds such as these can best be understood as a pyrrhic victory—the battle won is a war lost where the rights of the governed fall to the will of those who govern. When applying this case in practice, a Mission-Driven approach would entail training colleagues on how to avoid similar violations in the future, even if they may not result in clear legal liability.
Finally, In re R.N, a recent Montana case, provides an excellent example where counsel and the agency client prioritized the larger public mission and the individual rights at play. In this case, the state child welfare agency withdrew allegations of abandonment against a mother after concluding that she and her child should reunify. The foster parents caring for the child challenged that decision by filing a motion to intervene, in which they also sought a court order compelling the agency to pursue termination of parental rights. The agency refused to seek termination and objected to the intervenor’s motion, as did the mother and her counsel. The district court allowed the intervention and ordered the agency to seek termination against its own judgment. The agency appealed.
Ultimately, the Montana Supreme Court reversed, explaining that the foster parents had no right to intervene because, unlike the mother, they had no liberty interest in parenting her child. The court also rejected the idea that a court can compel a state agency to prosecute a termination petition against its own judgment because doing so would clearly “violate the separation of powers.”
The government’s position expressly recognized and respected the child and parent rights that exist within the system it helps to administer. Moreover, the agency identified boundaries in its own role based on those rights and remained within those boundaries, even when challenged for doing so. In representing the agency’s stance, counsel fulfilled a dual obligation of pursuing the public interest in executing child protection laws while also protecting the liberty interests of individual members of the public whose lives are governed by those laws. This is what success looks like for a Mission-Driven government attorney.
To achieve immediate government goals and larger justice goals, the Mission-Driven attorney needs to understand how the laws are executed and how they are experienced. This requires regular communication and engagement with both arenas—the government agency they represent and the larger community of those who are governed.
In private practice, clients hire attorneys they can trust and work with closely. Developing client trust is similar in government work. Delivering mission-driven work requires understanding that mission from the client’s perspective, whether that be a front-line officer of the law or an agency director. Get to know your client and their goals before trying to deliver what they need. When possible, spend time not just meeting with the government client but also learning the daily responsibilities of their job. Try to understand what it is like to step into their shoes and make quick decisions with little time and enormous consequences.
Taking the time to learn about your client’s larger interests and responsibilities will help you engage in a discussion about how you can support their work within the boundaries of the law and with explicit protections for the individual rights at stake. To accomplish this second part of the engagement, you must continuously study the laws you help execute—including statutes, regulations, and case law—to share that information with your client. This is especially important if you counsel government clients with duties on the ground; you are in a much better position to stay current on what is and is not permitted in your clients’ work. Indeed, as outlined above in the Sixth Circuit case, actions and rights that are not “clearly established” today may become clearly established tomorrow, and it is your responsibility as counsel to share that information with your colleagues on the ground to protect them at the same time that you protect those with whom your colleagues interact.
Inherent in understanding the rights of “the people” is an understanding of how the laws are experienced by the people. To do this, seek out opportunities to meet with community groups focused on these individuals’ lived experience or impacted perspective. Ask members and leaders in those community groups to explain how they see the role of your government agency.
When you ask these questions, pause and listen to the answers. Only then can you gain a dual appreciation of the mission of the law and the mission to protect those governed by it. In addition to direct engagement with members of your community, look for opportunities to learn from work already published and written from the perspective of those who experience the laws you administer. You might be surprised how easy it is to find such guidance when you start looking for it.
In addition to seeking opportunities to learn how government action is experienced on the ground, it is also important to seek input on how the law is experienced in court and legal decisions. For example, a new technique that I recently participated in through a project at the American Bar Association Center on Children and the Law is a Lived Experience Audit. This approach provides an honest review of the language in judicial decisions from the perspectives of those subjected to the laws and even harmed by them. Such an audit can help government counsel and others see how certain language or even outcomes of a case or decision can be harmful even though not intended to be. Understanding that impacted perspective, in turn, helps us all learn how to review similar situations in the future with more complete perspectives in mind.
As an example, last year, I attended a presentation where a government attorney talked about how she advises her clients to comply with a seminal New York and Second Circuit case from 2003, Nicholson v. Scoppetta. That class action was filed by mothers whose children had been involuntarily taken from them by the city’s child protective services agency for failure to protect their children from being exposed to violence experienced by the mothers who had been assaulted by intimate partners. The Second Circuit noted the likely unconstitutionality of such removals, and the state appellate court ultimately established a new legal framework for evaluating future cases to prevent such separations from happening.
The government attorney who spoke about the case carefully explained how she advises her clients on those procedural structures in the Nicholson holding. What she did not convey, however, was why these procedures are so important. In other words, she did an excellent job conveying what her agency needed to do to comply with the law but did not note anything about why her agency should want to do so in the interest of protecting children and their parents.
I was especially sensitive to this because I had just had the privilege of working with Ms. Nicholson and several other survivors who have repeatedly taken time to share their perspectives about how the terror of having their children taken from their care made them fearful of the very government service systems where they had sought help. As part of our work together, Ms. Nicholson and several other partners did something brilliant to challenge the way that similar cases continue to be decided today. They examined legal decisions from around the country with fact patterns involving mothers who have also been separated from their children because they were present when the mother had been harmed.
Ms. Nicholson and her partners reviewed all the language in these decisions and then conducted a “Survivor Audit” of each one, carefully examining the findings of fact, analysis, and holdings from a survivor’s perspective. They corrected harmful language, identified missed examples of protective strategies in the agency decisions, and highlighted how rarely anyone inquired about the harm of separating a child from their mother, one of the core tenets of the Nicholson framework. That audit is a gift. Once you read it, you cannot stop hearing and seeing a completely different narrative from the one introduced by government authorities alone. I am hopeful that the government attorney from New York who counsels her clients on compliance with Nicholson will read this material and see it differently, too.
When we seek out and then start to hear the voices of both the immediate government client and the broader public client at the same time, we begin to understand how representing government interests also means representing the people’s interests in government. That is the very crux of the justice system, and government counsel has a uniquely powerful role to play in getting it right. Several years after our country was formed, James Madison wrote that in our government administered by men over men, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Meeting that challenge is an extraordinary responsibility. To every attorney who enforces laws and enforces legal rights, thank you for rising to it.
Community of Practice for Child Welfare Agency Attorneys (COP). The COP meets once per month via Zoom on the first Thursday of each month from 3:00 pm to 4:00 pm EST for 60 minutes. The topic changes from month to month based on the needs and ideas of attendees. New participants can register for the COP at https://forms.office.com/r/5MACKFR6bN.
ABA Community for Child Welfare Agency Counsel. This is a place to share resources, connect with fellow child welfare agency counsel, and ask questions of other child welfare agency counsel between COP meetings. To register, please email Heather Kestian at [email protected].
