The Role of the Capital Lawyer

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By Chris Micheli

Around the California State Capitol, we occasionally hear about the work of a “Capital Lawyer”. Who are they? And what do they do? At McGeorge School of Law, they are training individuals to be successful capital lawyers, describing them as those who attain the fundamental knowledge and skills that are essential to lawyering in California state government.

Of course, these individuals could also practice law at the local or federal levels of government, as well as in the executive, legislative or judicial branches of federal or state government. Some of the foundational skills of capital lawyers include the following:

  • Public policy research, development and analysis;
  • Appreciation for the various policymaking venues so that a determination can be made as to which one(s) provide the best chances for client success;
  • Research at the local, state and federal government levels;
  • Advocacy and negotiation in the policymaking venues; and,
  • Knowledge about multiple areas of law and public policy unique to government and the public sector.

It is particularly important for these individuals to understand the policymaking venues and processes of all three levels of government because none operate in a vacuum. For example, federal laws, programs and funding decisions are generally implemented by the state and local governments, and those federal laws have a huge impact on the state and its local communities.

Similarly, the state and local governments do not have exclusive control of the policymaking agenda. They share it with the federal government. Moreover, even within a level of government, there are different branches of government that provide different venues for capital lawyering skills to be utilized. The most obvious examples are lawmaking in the legislative branch and rulemaking in the executive branch’s regulatory agencies.

Consequently, a well-prepared capital lawyer will be able to work within these different and unique policymaking venues. As such, there are numerous opportunities for engagement. Examples of capital lawyering careers include:

  • In the California Legislature as committee consultants, staff to legislative leaders and legislators, staff to party caucuses, or other legislative support agencies such as the Legislative Counsel;
  • For the Governor in such areas as legal affairs, legislative affairs or appointments;
    In state agencies (there are more than 200 of them with rulemaking authority) as attorneys, legislative advocates, administrative law judges, enforcement officers, and other positions;
  • For businesses and nonprofit organizations that seek to influence policy on both legislative and regulatory matters;
  • For private law firms that specialize in political and government law; and,
  • For lobbying firms that are retained to influence policy on both legislative and regulatory matters.

As others have observed, capital lawyering practice revolves around public policy development. Regardless of whether one participates as an elected or appointed official, a staff attorney for a government agency, a legislative aide or committee consultant, an advocate, or an attorney in a law firm that specializes in government practice, all are involved in developing or implementing public policy. This often proves to be rewarding for many capital lawyers.

Moreover, regardless of whether the public policy is in the form of legislation, regulation, executive order, court order, or other policy edict, all come about as a result of processes for public policy development. The capital lawyer can and will play a crucial role in the development of these policies.

One unique capital lawyering career is that of a legislative lawyer. What does a legislative lawyer do? While the role and title may differ a bit from state to state, legislative lawyers often provide nonpartisan legislative drafting services for the members of a state’s legislature, such as drafting bills and resolutions, as well as related legal guidance. At the federal level, legislative lawyers provide these same services for the Senate and the House of Representatives.

Practicing legislative law can be challenging at times, but also rewarding. Legislative lawyers are often at the forefront of the development of the law, as they provide legal guidance to help their clients determine whether legislation may be needed to address an identified problem, or help them predict how a court might decide a case of first impression involving a new or existing law.

In addition, legislative lawyering requires one to navigate a complicated web of constitutional law, state and federal laws, and administrative regulations. Common issues that arise involve legal doctrines such as separation of powers, privacy and federal preemption of state or local laws. A state’s constitution can also include drafting hurdles, such as requiring higher voting thresholds for certain types of legislation.

The role of the capital lawyer can be varied and interesting, whether working in the executive or legislative branch, or for local, state or federal government. For those interested in combining law and public policy, working in and around government is a wonderful opportunity to have an impact on laws and policies.

Chris Micheli is an attorney and registered lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.

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