"ARE you a lawyer or a journalist?" the Georgetown blonde said, stepping up to a three-piece suit at a party; blow-dried hair, Gucci shoes. The implication was clear. In Washington, she seemed to be saying, what else could you be? There are journalists, who write about lawyers, and there are lawyers; lawyer-congressmen, lawyer-lobbyists, lawyer-advisers. Lots and lots of lawyers.
In fact, with 25,000 members of the D. C. Bar Association, Washington may have more lawyers per square foot than any place else in the country. Will Amtrak be permitted to terminate service between Chicago and Miami? Ask a lawyer. Will environmentalists in Juneau, Alaska, have to grit their teeth and drink water they're sure causes cancer? Ask a lawyer. Will Ma Bell have to reduce phone rates for members of the media? Should Detroit's auto manufacturers have to comply with stricter pollution control laws? Who do you ask. Guess.
And more often than not, unlike the private sector, where first-year Harvard graduates are often treated like fraternity pledges, clerking, rising slowly from the depths toward partnership, the lawyers making decisions at the federal level tne to by younger, less experienced, a whole subculture of baby boom professionals who entered law school in the turbulent dissatisfied '60s, studied that systematized pessimism which is called the law and matriculated into the hot seat. Suddenly they regulate the nation.
Socailly, on the other hand, while in any city they would be touted, sought after, sheer numbers render them ordinary in this city of bumping egos.
"Am I a lawyer or a journalist?" the man at the party said, eyeing the blonde with approval. "A lawyer."
"God, another one."
Like the man says, there are thousands of attorneys in this naked city, and the following are stories of a few of them.
If someone ever writes "How To Get Ahead by Treating the Freedom of Information Act as a Joke and Hanging the Right Photographs on Your Wall," Tom Bauer (not his true name) will qualify for the lead.
Dreaming of the presidency, Bauer arrived in Washington from the Northeast during the last election to work on the campaign of a senator. He was intelligent, efficient, convincing, likable, had those Redford best-of American-can-do-no-wrong looks which coupled with a practical Machiavellianism gave him the winner's touch.
Although his candidate lost, Bauer stayed on, parlaying contacts into a job at a public interest group where he arranged fundraisers and dinners."That's one of the secrets of Washington," he says, "How to turn losing into winning. A lot of people who worked for Carter are back on the farm."
Anyway, two years passed during which he completed law school, took the bar and began a climb through the regulatory agency strata. Our story begins here, encompassed only 30 minutes and started when a memo crossed Bauer's desk one day asking him to deny a Freedom of Information request that even he admits should have been granted.
Two years earlier Bauer might have raised his eyebrows at the order, but now his major thought was that the writer of the memo had been stupid to put himself on permanent record, writing why he wanted the request denied.
The background was this: Bauer's agency, which was charged with regulating certain U. S. industries, had demanded some time earlier that a large company comply with certain federal regulations, and the company had agreed to comply. Owing to failures at the agency level, however, nothing had been done for months, a fact which would be embarrassing if it were to be made public. Hence the stonewall request.
There was nothing unusual about what Bauer was being asked to do. Lawyers he knew did it all the time, or, if they did give out damaging information, hid it in a sea of trivial documents to make it harder to find. Pen in hand, Bauer began searching for a technicality that would enable him to do his job. He worked away under signed photographs of senators on the wall. The photos, rewards of his days as a fundraiser, offered the appearance of access to important people and thus supplied him status in the agency. The photos, Bauer was learning, were a story in themselves.
To the older, more experienced lawyers he worked with, Bauer was young, sure, but he knew people who had reached such an astronomical level in life that they were no longer assigned GS numbers. No one knew who Bauer knew so everyone was afraid to give him a hard time. In fact, soon attorneys were stopping in to chat and consult the new man, who would sit back, amazed while people five and six years older would say things like "Do you think I should stay in this office or go over to the SEC?" all the while glancing periodically at the pictures on the wall and thinking, "Jesus, the kid knows senators."
Anyway, as it turned out, it was easy to find a technically and deny the Freedom of Information Request. The job finished he settled back and looked at the old Juris Doctor on the wall, with his name on it.Thomas Edward Bauer. He was a lawyer. No one could take that away. It felt pretty good, and if opposing attorneys found a way to get around his denial of the request, he'd stymie them with another technicality.
As this article went to press, Bauer was offered two new jobs with agencies.
Gwynn Swinson was only 24 when she tried her first case for the Justice Department, and up until two days before the trial began she had no idea it was coming up so soon. No one did. A judge in Charleston, W. Va. began her baptism by fire when he decided to turn a preliminary injunction hearing into a full-fledged trial.
For Swinson, who had graduated from Antioch Law School a year before, the unexpected turn of events was about as welcome as a death sentence on parking meter violation and the implications of a loss in court extended far beyond the $330,000 immediately at stake.
The case itself dealt with HUD's funding of a proposed recreation center in St. Albans, W. Va., which was under legal attack from local residents who wanted the site of the low- and moderate-income facility moved.
"As a black person raised in a middle-income family my parents had always made me aware of how fortunate I was, and I always felt a responsibility to assist people who were less fortunate than I," says Swinson, who chose Antioch partly because the school was public interest-oriented. So the case was important to her for that reason, but also, aside from her own pride, "losing would have been devastating to HUD. The case would have meant, if I had lost, that courts or private citizens could decide instead of a federal agency what the federal agency could or couldn't do. It would have meant that HUD could not fund the project at the whim of citizens. The act hadn't really been tested in court that much."
In any event, Swinson and HUD counsel John Abbott had prepared for a preliminary injunction hearing, at which the Committee against the Parkway Pool would seek to stop construction of the center until a trial could be held.Preparation for a hearing included preparing memoranda, compiling agency documents and consultation with HUD officials, but that was still less work than required for a trial. Swinson wasn't nervous when she walked into the courtroom, not at first, because she figured she was prepared . . . noted the surprised reactions of the judge, of opposing counsel and of the 25 enraged community residents who had come to watch the trial. Here she was, black, short, 24 with one of those are-you-sure-you're-old-enough-to-come-in-here? faces and she was the main counsel trying to push through the goddamn pool they'd been fighting for the last eight months. Still, she was calm until that afternoon when the judge announced, "Trial will start Monday."
"I panicked. 'B-b-but your honor. . .,' I said. 'You can't DO this,' but he could do it, and he did. I had only a weekend to prepare. I called my boss, my parents, almost in tears. I'd never examined a witness on the stand."
Notwithstanding the emotional reaction, Swinson flew back to Washington that weekend and feverishly began locating witnesses and drawing up briefs.
It was a great deal of responsibility, but in the federal sector it is not unusual to get it at an early age. Young attorneys in other agencies report working on large cases. One 1975 law school graduate at the FCC is largely responsible for writing recommended decisions involving nationwide AT&T rates. A 28-year-old at the office of the Comptroller of Currency sits in at national meetings with bank presidents and older corporate attorneys while decisions are made about transfer of funds in national banking. "If I had gone directly into a private firm," says Dennis Gingold, "even with a Ph.D. in economics I wouldn't have been more than a superclerk." Another attorney who recently worked in the IRS said, "When I got there I kept thinking that someone there had to know more than I did about what I was doing, but they didn't. I was the bottom line."
Attorneys like F. Lee Bailey have criticized a system which hurls inexperienced lawyers into the front lines to learn at the expense of clients, particularly in criminal cases. And Gwynn Swinson says today when she walks into preliminary injunction hearings she brings witnesses just in case. She didn't do that in St. Albans. "I didn't fully realize the broad discretionary power a judge has in matters like that. Now I do."
But when they talk about lawyers who work for regulatory agencies and don't try cases, some veteran Washington attorneys suggest that young lawyers may turn in better, more imaginative performances than older ones.
"Much of the work at the regulatory level requires novel strategy, new rules for new situations," says Lester Hyman of Leva, Hawes & Symington, a Washington firm that frequently represents clients before regulatory agencies. "Older attorneys who might be thinking along bureaucratic lines won't consider anything but the rules, developed at a time when circumstances were different. Most of the time I'd choose a young lawyer to work with."
Hyman adds, however, that since young lawyers generally work under the auspices of a supervisor, whose input varies from agency to agency, "very often you don't know who makes the decision. You deal with the young attorney but also tend to go higher, maybe to the supervisor, for a combination of contacts."
Still, even with a supervisor, the bottome line is often the young attorney. On Monday Gwynn Swinson's trial began. The committee against the pool contended through counsel that the facility would not really benefit low-income people because it wasn't in a low-income neighborhood. Swinson countered with arguments that low-income neighborhoods were close enough so that the pool was reachable by foot or bicycle. The committee contended that the construction of the pool would be bad for the environment, but when they sought to introduce expert testimony Swinson crossexamined and disqualified the purported experts. Committee counsel argued that using HUD money for the pool was a violation of the Housing and Community Development Act. Swinson, using the language of the act and federal reviews, argued the opposite.
The trial lasted three and a half days and in the end the judge ruled for Swinson on all issues. Moreover, the committee against the pool, which obviously wasn't happy with the decision, had taken the HUD attorney to heart during the trial. "Afterwards they came up to me and said, 'Little girl, your parents would be so proud of you if they saw you. We're going to try to enjoy that pool.'"
Where do all the lawyers come from? They weren't always so numerous in Washington. Currently the District of Columbia has three times as many lawyers per thousand residents as New York state, one of the nation's greatest financial, corporate and legal centers. Back in 1880 the capital boasted only four law firms, but the steady growth was about to begin.According to Mark Green, the Washington lawyer and writer who chronicled the rise of the Washington lawyer in his book The Other Government, the honey days for the legal profession in Washington began around 1887 with the passage of the Sherman Antitrust Act and the establishment of the Interstate Commerce Commission. Suddenly big business around the nation, which had been organized into trusts by attorneys, had a need for legal representation in Washington, just as the federal government needed help in implementing the act.
When Woodrow Wilson became president, the legal profession received a new boost from the creation of the Federal Reserve System, the Federal Trade Commission and the U.S. Tariff Commission. Then Franklin Roosevelt and the New Deal added the Securities and Exchange Commission, National Labor Relations Board, Civil Aeronautics Board. The General Services Administration came into existence in 1949, the Atomic Energy Commission in 1954, and more recently the Federal Energy Administration was born.
Writes Green of these agencies: "These organizations have substantial authority to help or hurt the nation's 1.5 million corporations. They can dispense great wealth via licenses, subsidies, contracts, and approved rate schedules, or can limit great wealth by tax, antitrust and regulatory standards. The big six regulatory commissions - the FCC, SEC, CAB, ICC, Federal Power Commission and Federal Maritime Commission - have direct authority over some $120 billion of commerce. The Pentagon contracts out $40 billion in weapons contracts annually. The banking industry can do little without approval of the Federal Reserve Board, the Comptroller of the Currency or the Federal Deposit Insurance Corporations. The Internal Revenue Service and the Environmental Protection Agency have the ability to make any manufacturing firm in the country miserable."
And so today lawyers exist as subculture in Washington, as lobby for nations, advocates for businesses, regulators, links between business and citizens and government, tribesmen with their own language, customs and system of logic.
Picture an average Saturday night scene, two couples trying to figure out whether to see "Saturday Night Fever" or "The Duellists." One husband makes a point about one of the films and the lawyer turns and says in those familiar, measured tones, "You're really saying three things, aren't you?" Suddenly everyone finds himself caught in this weird Socratic dialogue when all they want to do is go to the movies.
What is that special quality which an attorney can acquire in the first few years out of law school that has so often antagonized the public? A recent Harris Poll designed to measure public view of different professions ranked congressmen and garbagemen above lawyers.
"You associate with people who can make angels dance on pinheads, who have great analytic skills, and when you deal with people who lack these skills there can sometimes be an intellectual arrogance," says Mark Green. "A Kennedy-like we're-a-special-clique-solving-problems feeling."
The prize is the professional laurel: the money, respectability and power. As interpreters of an increasingly complex world, lawyers are commanding greater and greater fees in the midst of what observers see as a boom for the legal industry. A two-year attorney at the federal level can make $25,000, a three-years associate at a top private firm in Washington or New York, $37,000.
Still, it's no fun getting there. Everyone has heard the horror stories of the first year of law school, but to Michael DeCesare (not his true name), those grisly tales pale beside the saga of the Marino tape.
This tale of terror and obsession began one afternoon when DeCesare found out he'd failed the New York State Bar. He needed to pass so he could waive into the D.C. bar and keep his job at the ICC. He had erred by assuming the bar was only slightly more difficult than any other test, and while his compatriots had spent their summer locked in bedrooms or bank vaults, poring over legal problems, DeCesare had mixed a good amount of studying with a liberal presence at the beach. He was, after all, a man who enjoyed the finer things in life, and on the fun circuit, bar examinations have never ranked with disco dancing.
But now he faced the prospect of a humiliating second failure and subsequent expulsion from his job. The heat was on. For $300 DeCesare enrolled in the Marino Bar Review course, in which a New York attorney named (you guessed it) Marino gave six lectures a week in Manhattan, taped the talks and mailed the tapes to various locations for those who couldn't attend in person.
Suddenly the dance king of Washington was spending six nights a week in a little room at the National Labor Relations Board, where someone would place a small tape recorder in the middle of a table, switch it on, and four people would begin scribbling madly . . . every word crucial. Gotta pass the bar. No talking. No bathroom breaks. Fifteen minutes every hour and a half for relief of writer's cramp, and then the tape went on again. One of the four came from Baltimore every night for this nonstop torture.Every weekend DeCesare stayed home and studied, by day the ICC law clerk, by night the slave of the tape. Today he makes $22,000 a year and helps decide national railroad routes.
Was it worth it? Yes, but among DeCesare's more pleasant memories of life the Marino tape does not rank in the top 40.
When Tim Walters graduated from law school in 1968, he had little intention of making his life's work government service, but he joined the FTC anyway. "I had interest in trade regulations and had been advised that the most concentrated work would be in government. I wanted to develop an expertise."
Waters did just that for four and a half years and then left, joining Peabody, Riuling and Lambert a year later.Suddenly he found himself representing companies under investigation by the FTC, companies he had never dealt with before, but the mere fact that he was dealing with his old agency embroiled him in a controversy currently raging in Washington over the practice of attorneys moving back and forth between public and private practice.
The system is called "revolving door" and was attacked by President Carter during a speech last May in which he proposed ethics-in-government legislation.
Carter was not talking so much about attorneys with one or two years' experience as those who go back and forth at higher levels and handle contacts with former employers. Still, rules have been proposed for the D.C. Bar Association which if passed would not only prohibit government attorneys from representing clients before former employing agencies, but would also prohibit entire firms from representing clients before agencies any member of the firm recently worked for.
The proposal has been attacked by scores of attorneys in both the public and private sector. Opponents say the rules would force young attorneys to decide between publc and private jobs upon graduating from law school; they contend that federal-level starting salaries, which can run $10,000 below those offered by top private firms, already make it difficult to attract top law graduates to the government service.
And often, as Tim Waters says, the advantage held by a recent employee of an agency is simply one of knowing where to go to expedite matters more quickly. Another advantage, access, Waters says, is shared by any attorney who practices in the city and knows agency lawyers.
At a higher level one man who embodies the dilemma of the revolving door system is head of the FTC Bureau of Competition. Alfred Dougherty worked for the Washington firm of Hogan and Hartson after graduating from law school, then the FTC, then Hogan and Hartson, then the FTC again. He never worked on cases before the FTC when he was in private practice and he views the proposals with "mixed emotions."
"On one hand the proposals would inhibit the government's ability to recruit highly qualified young attorneys, both from schools and the private sector," he says. "I'm recruiting a lot of highly motivated public interest attorneys from private firms now . . . the system works both ways . . . and I'd hate to see that resource dried up by these rules."
"On the other hand, let's assume when I went back to Hogan and Hartson after being deputy director I had worked on FTC matters . . . which I didn't . . . knew at that time why investigations had been begun, what industries might be susceptible to FTC investigations and what sort of criteria investigations were made on. I could have brought to a client knowledge which would have enabled me to target arguments much more forcibly . . . Even if a firm monitors an agency day to day, it is not nearly as advantageous as having one of the two or three top people in the agency working for the firm."
"In the balance," Dougherty says, "I'm torn."
For Tom Bauer, Mike DeCesare and Gwynn Swinson, the problems are all different but in a way they are the same: growing pains accompanying the change from student to professional, from theory to practice. That's the way it is for hundreds of young lawyers in Washington, all in their cubicles with their diplomas fresh on the wall, all new members of that secular priesthood called the bar.
Says Bauer: "It's that process of realizing who you are that changes you.All of a sudden you're a professional. You have your own office, a secretary, respect. You have an effect, but there's another side to the coin too. There's an old saying people always tell you before you take the bar exam: 'Don't hate and don't fall in love.' That's the way it is in the real world too. Law teaches you how to be medium cool all the time, to be logical . . . to find a weakness and attack . . . but the tendency is sometimes to bring that into your personal life and if you do it's devastating, especially in a place like Washington, filled with aggressive types. It's very frustrating at times to remain a human being and a lawyer at the same time."