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366 forty-three Counsel for the Situation Give a wise man an honest brief to plead and his eloquence is no remarkable achievement. —Euripides, The Bacchae Justice Brandeis described his legal practice before ascending to the Supreme Court as “counsel to the situation.” In his view, the lawyer was more than an adversarial advocate.The lawyer was a counselor, a negotiator, a problem solver who sought to advance the client’s objectives while maintaining the highest standards of ethics and serving the public interest.1 At the Senate confirmation hearing on his Supreme Court nomination, Brandeis was berated for serving as a “counsel to the situation” instead of counsel to his client. Did he not have a duty, he was asked, to represent vigorously his client’s interest, even if the interests of other parties and the public suffered? In some specific situations Brandeis may have taken the concept too far (compromising his obligation first and foremost to serve the client),2 but I fully agreed with his broader conception: first, in representing clients, a member of the bar has an obligation to uphold the highest standards of integrity and inform the client of the public interest considerations at stake, and second, a truly outstanding lawyer is able to represent a client on a broad range of issues, calling in specialists as needed, but also capable of mastering a set of complex interrelated issues and moving nimbly among legal disciplines. The kind of legal practice defined by Brandeis has been my aspiration as a lawyer. My informal advice to Bill Levitt while I was at the Dilworth firm, that his early policy of racial exclusion from the Levittown projects was unwise and in conflict with emerging national policy against racial discrimination in housing , illustrates the point. To distinguish my nuanced interpretation of the Brandeis philosophy, I have coined the term counsel for the situation. I would be counsel to the client but willing and able to deal with any situation. In the Washington context, the counsel for the situation acts as a mediator between the private sector and government, a bridge between law and public policy. Effective counsel is able to explain to government officials how the 06-0488-1 part6.indd 366 9/9/10 8:27 PM Counsel for the Situation / 367 government’s statutory obligations can be met in the most efficient way and how sometimes conflicting public interest considerations can be reconciled. To function effectively, government requires substantial information from the private sector and a full understanding of the consequences (intended and unintended) of the exercise of its regulatory and fiscal powers. Counsel can marshal and present complex information in a credible, skillful way that facilitates good policymaking. Counsel can explain to a private sector client how Washington works (or doesn’t work) and how to achieve the client’s objectives within the statutory framework that drives government policy. Many clients complain about the heavy hand of bureaucracy (sometimes for good reason). Astute counsel knows how to bridge the communications gap and negotiate a positive outcome . The counsel’s greatest creative challenges often come in helping clients adapt their business models to emerging legislative policies. Many government objectives—safe transportation, quality health care, energy security, and environmental protection among them—can only be met through efficient private sector initiatives. Counsel also can help shape and pass legislation or regulations that open up new private sector business opportunities. As counsel for the situation, I would assemble a team of legal experts to undertake strategic or corporate crisis counseling, working with clients in developing new business horizons or handling bet-the-company situations. A major corporate takeover, enforcement action, scandal, or product liability exposure can subject a company to the glare of media, congressional oversight, an agency investigation, and multiple lawsuits. In such circumstances, fullservice client representation may involve interaction with all three branches of government and the media in preparing clients to testify before congressional committees, participating in regulatory proceedings, negotiating with federal officials, and defending clients against enforcement actions and private lawsuits arising out of federal actions. Some say that the counsel for the situation—the Tommy Corcorans, Clark Cliffords, Edward Bennett Williams, Lloyd Cutlers—are dinosaurs. They argue that only specialists can effectively address increasingly complex legal systems. I beg to differ. There has always been, and will always be, a demand for specialists.There will also continue to be a demand for generalists who can view the forest and fight the fires from the...

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