Advice from the Administrative Law Experts

Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?

I would recommend that any attorney preparing to handle administrative law cases or participating in the rulemaking process focus on the big picture. Although you may be working on a case or rulemaking project, take a step back and objectively think about the impact this case or rule will have on other cases. One of the things I enjoyed most about working for the Office of the Chief Counsel International was that I had the opportunity to work on rulemaking projects that impact many taxpayers, so it was important to remain objective in my analysis of what is the “best answer” for this situation.

—Tasheaya Ellison, Senior Tax Attorney at Shell Oil Company

Before filing a court pleading that rests on principles of administrative law, take the time to consult a good treatise on administrative law. The Massachusetts Practice series, for example, includes a three-volume treatise on administrative law. An inordinate amount of time is wasted advancing arguments that either contravene or do not satisfy basic principles of administrative law. In any area of the law that’s currently unfamiliar to you, take the time to scope out the lay of the land and view the big picture by consulting treatises or handbooks before delving into the minutiae of the issue that most concerns your client. Cultivate acquaintances in the legal departments of the agencies you are most likely to deal with. Join the public law section of your bar association.

—Rob Quinan, Managing Attorney, Administrative Law Division

In the rulemaking area, there are several good books on the topic. I’d say the top-line messages for practitioners before agencies are:

• Never criticize anything without offering an alternative solution. Congress gave the regulators a job to do, and you will be much more successful if you can propose a way that they can accomplish it. Don’t play “bring me a rock.” (“No, not that one.” “How about this one?” “No, not that one either.”)
• You know more about your industry/client/etc. than the agency. The most valuable thing you can do for an agency is to become a trusted source of useful information to the agency. Staff will seek you out or at least listen.
• Strive to really understand your clients’ businesses and push them for specific examples of how various regulatory alternatives will affect them—or the agency’s goals—rather than repeating general complaints. Then translate their jargon into words others can understand.
• For agency lawyers, I suppose my principal piece of advice is that people in various businesses aren’t in those industries to do bad things, even though the ones you disproportionately encounter may be. The great majority are just trying to make a useful product or service and make money in the process. They generally accept the need for a certain amount of regulation, but they will bristle if they sense that you have the view that we should tolerate them grudgingly, or that they function at your sufferance. They may not be your customer, but they shouldn’t have to feel like a supplicant, either, even if they are “applicant” or a “permittee.”

—Jamie Conrad, Immediate Past Chair of the Administrative Law Section

My counsel is to keep all of your options open early in your career, to consider practice areas outside of your comfort zone. Sometimes success is defined as traveling in different directions. Hopefully, more law firms and the government appreciate the need for younger lawyers to have a diversity of experience early in their careers.

I would advise attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process to join and be active in the Administrative Law Section, together with building a group of peers who practice administrative law. There is no better way to get a grip on “best practices” than to have a group of colleagues to help you set the approach/tone for your casework.

—Joe Whitley, Chair of the ABA Section of Administrative Law and Regulatory Practice

What do you think are the biggest challenges facing administrative law practitioners?

I would encourage administrative law practitioners to have the courage to take risks to pursue their career goals and dreams. These risks can include taking on new challenging roles, projects/assignments, or making the decision to pursue an in-house role. Whenever I have been faced with difficult career decisions (i.e., leaving the federal government and becoming an in-house attorney), I force myself to objectively consider (1) where I want to be in my career in 5, 10, and 15 years, and (2) what is the “best” (not necessarily the easiest or most comfortable) next step to progress my career.

—Tasheaya Ellison, Senior Tax Attorney at Shell Oil Company

Administrative law can be a complex field of law. As time passes and government leadership shifts, judicial interpretation of the codes can change. Additionally, new laws and amendments are always coming into existence. I feel administrative law is an area where lawyers must continuously keep themselves abreast of judicial and legislative activity.

—Eric Holden, Fellow at the U.S. Merit Systems Protection Board

If you represent a private client or plaintiff challenging an administrative decision, a major challenge is to craft an argument that will overcome most judges’ natural inclination to defer to the greater subject-matter expertise of agency decision-makers. If you represent a government defendant, an often-daunting challenge in controversial cases is to persuade a reviewing court that the agency’s interpretation of the law is correct and reasonable and that the court must defer to it. Another challenge for all admin law practitioners is to master and then be able to distill cogently the more arcane aspects of the governing legal scheme. Legislators and regulators are not known to be masters of clear, concise, easy-to-understand language.

—Rob Quinan, Managing Attorney, Administrative Law Division

The biggest challenge facing administrative practitioners is that they have to learn two sets of law: the substantive law of whatever field(s) they are in, and the generic procedural law that applies (unless supplanted by more specific law) to all federal administration. The latter is harder to learn by doing, in part because it evolves across multiple fields. So the Section concentrates on publishing the leading volumes on the full range of ad law topics, updated fairly frequently, and on presenting programs that describe and analyze new developments and complicated fields. Our Fall Conference is two days of multiple tracks of programming, plus plenary session speakers on developments in adjudication, rulemaking, constitutional law, and judicial review. These developments are also written up in our annual Developments book, which Section members get for free.

Another less obvious benefit we offer is a way to get to know other regulators, practitioners and academics in your fields and others. That network of contacts can be invaluable in addressing and resolving problems – and learning of opportunities – that emerge months and years later.

—Jamie Conrad, Immediate Past Chair of the Administrative Law Section

I believe the challenges that AdLaw practitioners face may not be unique to them, but perhaps apply across the board to the practice of law in the United States. Our still-shaky economy is impacting the practice of law and the economics of law practice. All of this is happening at a time when the relevance of administrative law has never been greater.

—Joe Whitley, Chair of the ABA Section of Administrative Law and Regulatory Practice

For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

I have never known anyone who practiced generic administrative law. Law firms have specialists in, e.g., environmental law, food and drug law, securities regulation, trade regulation, communications law, etc. I suppose you can loosely describe all these as “administrative law,” but they do not share enough commonality to call them a “field” for any practical purpose. If someone asked me how to prepare for a career in administrative law I would tell them to think about the underlying issues that they think are interesting. That will reveal at once what courses they should take in law school. After they have graduated the surest way to gain familiarity is to practice for a while with an agency doing that kind of work. This is likely to give wider exposure to the subject than an entry-level position in a law firm, where there is a high probability of becoming indentured to some small corner of the field.

—Glen O. Robinson, Prof. Emeritus—University of Virginia School of Law

For law students, I believe internships are necessary for gaining an understanding of administrative law. Law schools do a great job of teaching legal theory; however, the practical application of the law cannot be learned in a classroom. There is no substitute for actually attending hearings and working with experienced lawyers.

For new attorneys, there are many opportunities to work on pro bono cases before administrative courts, at least in the District of Columbia. Administrative courts can be very different from trial courts, particularly in regard to evidence rules. If someone is interested in administrative law, I believe it is imperative they seek out opportunities to try cases before ALJs to get a feel for the unique nuances.

—Eric Holden, Fellow at the U.S. Merit Systems Protection Board

Probably nothing beats interning or volunteering in a public law office. Serving as a research assistant to a professor of administrative law or volunteering to help those responsible for publications in the field, including treatises and the above-mentioned Manual, might also be invaluable opportunities. Although the opportunities might not arise that frequently, keep your eyes peeled for conferences sponsored by the public law section of your bar association. Inquire as to whether your law school is associated with any public service fellowship programs.

—Rob Quinan, Managing Attorney, Administrative Law Division

I don’t think there is any substitute for just starting to work in an area. Ad law is particularly abstract and formal until you see it in operation, I suppose in much the same way civil procedure is. Working in multiple fields is also a great way of seeing how various concepts and doctrines work out in different ways. The government, DC firms with big regulatory practices, and trade associations are all good ways to get this sort of experience.

—Jamie Conrad, Immediate Past Chair of the Administrative Law Section

As someone with several experiences with administrative law in the employment context, do you have any advice for attorneys preparing to appear before ALJs?

In my experience, ALJ’s appreciate straightforward, well-researched arguments. They are not influenced by emotional pleas to the court. Most importantly, everything argued must be supported by the appropriate administrative code and case law.

—Eric Holden, Fellow at the U.S. Merit Systems Protection Board

As someone with a number of experiences in government, do you have any advice for attorneys looking to transition from the private to public sectors?

From what I have learned from other young lawyers, serving as a pro bono lawyer is a great way to get one’s foot in the door. Government positions typically have strict experience requirements. In today’s challenging legal job market, it seems that working as a pro bono lawyer is the best way to acquire the necessary experience.

—Eric Holden, Fellow at the U.S. Merit Systems Protection Board

As someone who has worked in the public and private sectors, do you have any advice for attorneys looking to transition between the two areas? Is there a different skill or mindset that attorneys need to bring or develop in government work that may not be as crucial in a more traditional litigation practice and vice versa?

Private-sector lawyers looking to break into government service should be on the lookout for pro bono opportunities that will bring them into contact with government lawyers and/or familiarize them with public law issues. For example, an associate interested in child welfare law might sign up for the court-appointed special advocate program, join a foster-care review team, or explore whether the state Office of Child Advocate could use some research assistance. Join and become active in the public law section of your bar association. Work on an amicus brief that touches on issues of concern to government entities. The culture of private law firms usually differs considerably from the public law office environment. The former is often more bottom-line driven and the latter more issues-oriented, so it helps if you can undergo experiences that give you a broader outlook than you’re likely to get as an associate in a law firm. In the public sector position, you are likely to have greater responsibilities but more flexibility in managing your own time.

—Rob Quinan, Managing Attorney, Administrative Law Division

I know I may sound like a broken record on the American Bar Association’s Administrative Law & Regulatory Practice Section blog, but I believe we are the right place to start for young lawyers, both in the public and private sectors, who are looking for mentors in the practice of Administrative Law.

—Joe Whitley, Chair of the ABA Section of Administrative Law and Regulatory Practice

As someone who has done policy advocacy and more traditional litigation, do you have any advice for attorneys looking to transition between the two practice areas? Is there a different skill or mindset that attorneys need to bring or develop in policy that may not be as crucial in litigation and vice versa?

At a more philosophical level, courts expect parties to be adverse and to zealously push the strongest arguments that pass Rule 11. Courts appreciate this because they are referees. Outside of the adjudicatory context, however, agencies are both the judge and the other side. So it’s generally advisable to adopt a more nuanced and cooperative view. You’re really more a negotiator than a litigator most of the time.

At a stylistic level, you have to think carefully about who your audience is. Rarely will it only be exclusively lawyers. So except in those rare cases, you generally have to write in plain English. For major or multifaceted documents, you may have to write different things in different ways. Where you’re making legal arguments, you have to write legalistically. When you’re writing policy arguments, you need a different tone and approach.

“Gotcha” legal arguments will rarely succeed unless they are so open-and-shut that the agency sees it really has no other alternative. But even then agencies frequently will roll the dice and push ahead, gambling that the issue will ultimately never be litigated or that the judge won’t want to upset the entire rulemaking applecart on the basis of one issue. Even here, your tone should not be as “I’ve got you” as would be customary for a brief.

Use executive summaries and send copies of your submissions directly to key decisionmakers, not just to the docket.

—Jamie Conrad, Immediate Past Chair of the Administrative Law Section

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