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When first asked to compare their jobs, most in-house counsel from the private and public sectors would tout the differences between their respective work environments. Profitability and shareholder-value drive one, public service and accountability the other. Still, I’m convinced that if each were to walk a mile in the other’s shoes, they would find that a remarkable number of the same skills and practices lead to success in both types of organizations. For example, the General Counsel Division of the Comptroller’s Office, for which I serve as the director, houses more than 40 attorneys who address a wide variety of subject areas. In the never-ending quest to educate myself on the methods of managing such a group, I attend programs and roundtables and read publications to learn helpful tips. Inevitably, these forums are expressly geared toward corporate in-house counsel and their needs. I have learned, though, that by mere substitution of the word “comptroller” (my boss) whenever “CEO” is spoken, the advice given fits squarely into the demands of a noncorporate government position. Readers are no doubt familiar with the common thread of guidelines for executive lawyers. Be responsive. Be a good listener. Be accessible. Be an option-provider, not a deal-breaker. These directives apply for all types of in-house attorneys. But, notwithstanding the similarities between methods used by private and public sector counsel, let me point to some unique features of life for an attorney in a government agency and share a few thoughts on how to address them. For those of you who live in the world of profit, listen up. Chances are that at some point in your handling of legal affairs for your company you’ll have to interface with these public servants, particularly if you hail from a regulated industry. The more you understand and appreciate the additional pressures that government counsel face each day, the greater your chance of success in obtaining the administrative action that your business desires. � Ethics: Special laws and policies govern the ethical conduct of attorneys who serve the public. Without going into a full listing, government counsel must maintain an intimate familiarity with those guidelines. The rules play into virtually every task. And beyond just the letter of the law, perception is an equally important consideration. Those on the outside must respect the fact that what may seem acceptable for the private arena easily could fail the “smell test” — or even be unlawful — for agency lawyers. Consequences for an ethical lapse in government can also include professional discipline for the lawyer and public embarrassment for the officeholder whom the counsel serves. JUST SAY NO � Project management: Without the profit motive to compel efficiency and expedition, setting deadlines becomes even more vital. Government attorneys must continually resist the inertia that can result in endless deliberation. Whether you manage public sector counsel or deal with them on a particular issue, your client will benefit greatly from your attention at the outset to establishing a realistic timetable for reaching a decision. � The PR factor: Without question, my most famous refrain around the office is, “How would this look on the front page of the newspaper?” Agency lawyers work in the sunshine. Last year, in its interpretation of the Texas Public Information Act, the Texas Supreme Court affirmed, in In Re City of Georgetown, the application of the attorney-client communications and work-product privileges to state and local government counsel. Nevertheless, agency attorneys should recognize that action on legal matters in government can — and often does –reflect the public policy of their client. Moreover, the professional privileges that counsel hold are more easily waived in government. Therefore, greater weight is placed on public relations concerns in the determination of legal strategy in government than would occur when an analogous issue is presented in the private sector. � Demonstration of value: When a corporate attorney cites to the client the laws and regulations that govern business operations, others in the room usually are impressed. When a government attorney arrives for a meeting and cites applicable statutes and administrative rules, in all likelihood the agency personnel seated nearby know more about those laws than the counsel, since the staff played some role in writing them. In such a setting, public sector lawyers must make an extra effort to set themselves apart in the expertise that they lend to their client. They must counsel beyond mere citation and instead provide a broader perspective that recognizes the unique needs of the organization and its officeholder and demonstrates value in the knowledge of how a given legal strategy will play in other venues, such as the courts. � Rewarding excellence: Believe me, the notion that government lawyers work fewer hours or bear less stress than their counterparts in the private sector is a myth. Money is tight in the public sector, so managing attorneys have to employ innovative ways to reward exemplary performance. Among the innovative ways I reward exemplary performance is to conduct special meetings of the legal department to present (nonmonetary) awards to recipient counsel and speak to their accomplishments; photo opportunities with the comptroller; visual display of achievements of attorneys or section of attorneys; and rotating which attorneys will represent the agency and its legal department in attending conferences or for appointment to certain governmental boards. � Clients and customers: Comment 9 to Rule 1.12 of the Texas Disciplinary Rules of Professional Conduct states that “defining precisely the identity of the client and prescribing the resulting obligations for such lawyers may be more difficult in the government context.” Public sector attorneys must constantly question to whom the duties as counselor are owed. They could be owed to a particular department of the agency, the agency as a whole, the officeholder or the entire government — depending on the circumstances. In addition, members of the public qualify as customers, if not clients, of the agency attorney and are entitled to comparable respect and responsiveness to their needs. � Risk avoidance: Remember that the general goal in government is to avoid controversy. Therefore, any recommendation to a decision-maker for an affirmative action, whether coming from inside or outside the agency, must rest on extraordinarily solid legal ground, and presentation of the issue and proposal should be framed accordingly. Otherwise, the path that will appear safer — and preferred — will be to just say “No.” Richard Munisteri is general counsel for the Texas Comptroller of Public Accounts.

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