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The Department of Homeland Security is seeking a few good lawyers – 68 to be exact. These lawyers, the inaugural staff of the department’s Office of the General Counsel, will have their work cut out for them, serving as the hub of a legal network of more than 1,000 government lawyers. Not only will they be organizing their own newly created office, they’ll also be assisting with the massive government restructuring of 22 federal agencies and a bureaucracy of more than 170,000 employees that make up the Department of Homeland Security. At the same time, it remains unclear what role DHS lawyers will play in handling major homeland security-related legal issues, including civil rights, the use of the military on American soil, and emergency response. To date, the general counsel’s office lacks an official head – Alston & Bird ex-partner Joe Whitley has been nominated for the job and will face a Senate committee on July 29. Nor have more than a handful of lawyers been hired – up until last week, the DHS was still accepting applications for the vacancies. “The general counsel for the department has a major challenge ahead of him,” said former Virginia Gov. James Gilmore, who also heads the federally chartered Gilmore Commission, which since 1999 has been studying the nation’s ability to respond to terrorist attacks. Officials at the DHS don’t downplay the challenge before them. “We’re not just trying to put a new roof on,” said one DHS official, who asked not to be named. “We’re trying to take 22 agencies and create something new.” Sorting through the myriad homeland security-related legal questions and determining who has jurisdiction over them may prove particularly difficult. Gilmore said many of the issues could be handled by the Department of Justice rather than the DHS, but it is still not apparent into which lap they will ultimately fall. “What is the relationship between the attorney general and the general counsel?” said Gilmore, who chairs the homeland security practice group at Kelley Drye & Warren. “You don’t need the attorney general and the general counsel pointing fingers at each other.” The hiring announcements for the general counsel’s office outline six areas of legal work: ethics; general law; information analysis and infrastructure protection; rules and administration; science and technology; and border and transportation security. Lawyers in the ethics division will deal with issues including conflicts of interest, financial disclosure, misuse of position, and post-government-service employment. They’ll also be responsible for training DHS employees about the new ethics policies. Lawyers working on general law issues will deal with labor law, acquisitions, intellectual property, finance, appropriations, and other general legal matters. Rules and administration lawyers will help reform existing laws and regulations to meet DHS mission requirements. The other three divisions will handle matters more directly related to the DHS mission of homeland protection. Information analysis and infrastructure protection lawyers will provide counsel on the National Security Act, the Foreign Intelligence Surveillance Act, and the Freedom of Information Act, among others. The science and technology division will deal with grant administration, research activities, and federal acquisitions. Border and transportation security lawyers will counsel agencies such as the Customs Service, the Coast Guard, and the Transportation Security Administration on immigration law, international law, customs revenue and enforcement, maritime law, aviation law, and criminal law. The announcements call for lawyers with at least one year of specialized experience, but most hired are likely to have at least a few years of practice under their belts. Pay starts at $58,070 and tops out at $124,783. Secret security clearances are required for all positions. The application period ended July 25. Whitley, who will oversee the more than 1,000 lawyers in the 22 DHS agencies, will play a major role in setting the standards for the office, said his Alston & Bird colleague Thomas Boyd. “All the precedents that office sets will be done on his watch,” Boyd said. Whitley declined comment prior to Senate confirmation. His hearing this week is before the Senate Committee on Governmental Affairs. Pending his confirmation, Lucy Clark, who previously worked in the White House Office of Homeland Security, is the acting general counsel. To help handle DHS issues that arise before the permanent staff is in place – a process that is likely to take several months – the legal departments of some DHS agencies have lent out lawyers to the general counsel’s office, according to one DHS official. Even after the general counsel’s office is fully staffed, the existing legal departments at DHS components such as the Secret Service, the Customs Service, and the Coast Guard will continue to handle most of their day-to-day legal matters. The general counsel’s office will deal with major policy matters that require departmental direction, according to the DHS official, who asked not to be identified by name. The interaction of the DHS general counsel’s office with the legal departments of the component agencies will resemble that of the Department of Treasury, according to the official. The general counsel at Treasury oversees more than 1,000 lawyers in all of the department’s bureaus, including the Internal Revenue Service, the U.S. Mint, and the Bureau of Engraving and Printing. Neal Wolin, general counsel of the Treasury Department under President Clinton, said this ensures that matters are dealt with consistently and receive the proper level of attention. “If an issue in one of the bureaus becomes big or important . . . it will come up the chain,” said Wolin, now general counsel to the Hartford Financial Services Group. Philip Zeidman, co-chairman of the homeland security practice group at Piper Rudnick, said it will be interesting to watch how the legal departments come together. He compared the challenge of reorganizing existing departments under new leadership to a corporate merger. Although the legal departments at the DHS agencies will remain intact, they will report to the new bosses of the DHS general counsel’s office through a new bureaucratic process. This kind of change in the corporate world – even if beneficial in the long run – often results in culture shock and internal conflict in the short run, Zeidman said, adding that a similar dynamic could occur at the DHS. Beyond basic organizational knowledge, D.C. lawyers in homeland security practice groups say the general counsel’s office remains a mystery. This could benefit the lawyers who take DHS jobs. Although some of the positions will be temporary, one-year assignments, Charles Garrison, a partner at legal recruiter Garrison & Sisson, said that joining the DHS is a good career move. Law firms all over town are interested in developing homeland security practices, he said, but right now, the groups are being built out of thin air because no one has institutional knowledge of the department. Former DHS lawyers will be a “good value” to firms, said Garrison, who does not place lawyers in government jobs. Even if many of the vacancies are temporary or filled from within the administration, Garrison continued, the creation of a new legal department of this size is good news for lawyers in the city. This article originally appeared in Legal Times , a publication of American Lawyer Media.

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