The Attorney/Contract Manager: The Intersection of Two Professions

Attorneys who serve as contract managers hold a mantle of ethical duty higher than their non-attorney peers, and would do well to recognize the intersection of their employment with their training, acting at all times in accordance with the Model Rules of Professional Conduct.
B Y mic H a E L j . s O F i E L D j R .

It is not uncommon to nd lawyers who have left a law practice career path to nd employment as contract managers.1 This article examines the rules that govern the conduct of a lawyer employed as a contract manager. For the purposes of this article, this topic is generally examined from the perspective of the government and defense contracting industry, in which contract management is a career eld in itself. Although the discussion in this article will often seem to focus on contract managers in private businesses, the evaluation also applies to government contract management professionals who are attorneys. Because bar-admitted attorneys remain bound by the ethical standards of the profession, even when not in practice,2 it is necessary to identify what specic rules apply to this type of employment and why.

Unlike commercial contracts, government contracts are generally governed by the Federal Acquisition Regulation (FAR) and its agency supplements. The government has a specic career eld for contracting ocers, who are government representatives tasked with interfacing with their industry counterparts in rms that perform services and deliver goods to the government. The relative complexity inherent in the government contracting environment (as opposed to commercial contracting standards such as the Uniform Commercial Code) resulted in the growth of this as a professional career eld for non-lawyers. Generally, contract managers are involved in all phases of contract performance, from proposal to negotiation through management and closeout. For example, one job description for a contract manager in a commercial rm reads as follows:

Contract managers can be found in nearly every industry. For example, searching job placement ads for contract manager on Web sites such as HotJobs.com or CareerBuilder.com returns results that include not only the government/defense industries, but also healthcare, construction, insurance, information technology, and engineering, just to note a few. That being said, the career eld is perhaps most populous in the government/defense industries, due to the highly regulated nature of government contracting.

The Contract Management Professional

About the Author MICHAEL J. SOFIELD JR. is a 2009 graduate of the Rutgers School of LawCamden, and a contract manager at Lockheed MartinMS2 in Moorestown, New Jersey, where he supports new ventures. Prior to joining Lockheed Martin, he worked in interactive marketing and business process consulting, and served as a U.S. Army ofcer. He currently serves as secretary of the Pinelands Chapter of NCMA. Journal of Contract Management / Summer 2009 41

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Negotiates, administers, extends, terminates, and renegotiates standard and nonstandard contracts. Evaluates contract performance to determine necessity for amendments or extensions of contracts, and compliance to contractual obligations. Maintains communications to ensure timely contract execution by the parties. Ensures nal contract documents are consistent with agreements reached at negotiations. May plan and participate in training of contract practices and negotiations to company personnel.3

Avoidance of conicts of interest.10 These are generally parallel requirements to many of those imposed on bar-admitted attorneys by the MRPC. The common themes between NCMAs Code of Ethics and the ABAs standards for attorneys, the requirements for professional certication, and the duties of a contract manager reveal a striking similarity between contract management and the practice of law. In many rms outside the government contracting environment, this work is done by lawyers, whether by in-house counsel or by rms hired as outside counsel. But when a lawyer is employed in a contract management position (that is, one that is specic to that career eld and not part of the in-house counsel function), he or she must recognize potential intersections with his or her professional duties as a member of the bar.

This work requires one to be knowledgeable about contract structures, and in the case of federal contracting, to understand the structure of the FAR. One professional organization that formed to support this base of knowledge is the National Contract Management Association (NCMA), which is dedicated to the professional growth of its members and the advancement of contract management as a profession.4 The association promulgates both a certication program members may choose to work toward and a code of ethics to which all members are expected to adhere.5 Both the certication programs and ethics code are worth examining briey, as they illustrate an intersection with the legal profession that is of interest to the question presented. NCMA oers three major certications: The Certied Federal Contract Manager (CFCM), The Certied Commercial Contract Manager (CCCM), and The Certied Professional Contract Manager (CPCM).6 Each certication requires a minimum level of education, experience, and sucient (passing) scores on examinations administered by NCMA.7 In addition, each designation must be renewed and the holder must complete a given level of continuing education in order to maintain the certication.8 This type of requirement should not be unfamiliar to any bar-admitted attorney or bar candidate. Although these certications are not necessary for employment in the eld, they are worth noting as parallels to the legal professional. Similarly, the Code of Ethics of NCMA should also look somewhat familiar to those in the legal profession.9 Many of the underlying themes of the American Bar Associations (ABA) Model Rules of Professional Conduct (MRPC) can be found in the statements that make up NCMAs Code of Ethics. Among the duties identied in the code are: Diligence, Maintaining the trust and integrity of the profession, Protection of sensitive information, and
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When a lawyer is employed as a contract manager, he or she remains subject to the MRPC. Many of the rules focus on the traditional model of client representation, whereas the lawyer as contract manager serves in what may be termed a quasi-legal position. That is, the lawyers duties are related to the law, but not of the law. Given this, which of the rules must the lawyer be aware of that may apply specically to his or her situation, and why? For the purposes of this analysis, some assumptions are made about the lawyers role as contract manager. First, it is assumed that as a contract manager, the attorney has some authority to execute contractual documents. The level or amount (such as a dollar value of a contract) of this authority likely varies by employer, but for the sake of this analysis, it is assumed that some level exists.11 This assumption identies a key dierence between the lawyer as counselor and the lawyer as contract manager (or other employee) models. Attorneys serving clients within the traditional representation paradigm do not usually hold the authority to execute contract documents on behalf of their clients, absent some formal, written expression of that authority, such as a power of attorney. This assumption is important because the authority to bind a company in this manner may reect some level of control of the entity. Second, it is assumed that the lawyer acting as contract manager is also not part of a corporations in-house counsel oce. Since in-house, or corporate, counsel is considered a more traditional means of practicing law, and because some Model Rules specically address corporate counsel, the application of

The Lawyer as Contract Manager

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the rules separates this from the contract manager position. A great deal of literature is already available that examines the role of in-house counsel, and this topic is beyond the scope of this article. The contract manager envisioned for the purposes of analysis here is an employee with no authority to act as legal counsel on behalf of the corporation.12 Finally, it is assumed that because of the job description of a contract manager, and the duties associated with the position, some level of implied consent for disclosure of information is inherent, especially within the federal sector, where the government maintains the right to conduct audits as necessary. Considering this, it is assumed that a contract manager has implied consent to release certain information. This assumption is based on a fundamental understanding of the business model, and assumes that this consent is implied by the nature of the job, not by some written authority by the contract managers leaders granting consent. This assumption is important due to the multiple rules relevant to condentiality. In addition, only the Model Rules as stated by the ABAs MRPC are generally addressed in this analysis, not specic state rules. Since a lawyer working as a contract manager may be working in any jurisdiction, or, more likely, working under federal jurisdiction on government contracts, it seems most appropriate to determine how the Model Rules apply, leaving the specics of state rules up to an attorney to determine based on his or her own geographic situation.13 However, some cases cited below may refer to specic state rules, which serve to illustrate the application of the particular Model Rule in question. Given these assumptions, which Model Rules apply, and why? As the following sections will show, there are three specic rules that an attorney/contract manager should be familiar with in order to be aware of his or her ethical responsibilities.

Several cases of attorney discipline in dierent jurisdictions reinforce the idea that an attorney can be guilty of misconduct when not practicing law.16 Given that MR 8.4 applies generally to those attorneys not in practice, how might each subsection of the rule specically apply to a lawyer serving in a contract management role?17

Model Rule 8.4(a)

MR 8.4(a) denes one aspect of misconduct as violating or attempting to violate the rules of professional conduct, knowingly assisting or inducing another to do so, or by doing so through the acts of another.18 This particular subsection assumes a violation or attempted violation of the rules. It applies to the attorney/contract manager because a contract manager in the federal arena signs many types of contractual documents, including proposals, disclosure statements, pricing certications,19 and contracts and amendments. Any and all of those documents provide an opportunity for a less than honest attorney-contract manager to violate the rules by signing something false, and the enforcement record is replete with examples of contractor wrongdoing.20 If a lawyer is acting in this role, and he or she knowingly executes a document (such as a certication or disclosure statement) that is false, this conduct would violate the rules of professional conduct. Similarly, if the lawyer were to induce others to sign a contractual document that he or she knew was false or incorrect, he or she would be in violation of this subsection. An example of this might be having a supervisor execute a proposal document in which the lawyer knows contains inaccurate pricing, the result of which could be overpayment by the government, who may rely on the proposal document for award of the contract.21 In such situations, the lawyer is the one violating a rule of professional conduct, even though the other party (such as the supervisor in this case) may not be subject to the Model Rules.22

Model Rule (MR) 8.4, Misconduct, is the most applicable rule to this analysis. The subsections of MR 8.4 simply dene what is considered misconduct by an attorney, and the rule does not refer specically to lawyers in practice. As noted in this discussion, the rule can be and is applied in cases where the misconduct by a member of the bar was separate from his or her work in practice. The comments to MR 8.4 make clear that misconduct by a member of the bar can occur in professional settings outside of practice.14 And ABA publications note that MR 8.4 is not limited to the connes of the lawyer-client relationship; it reaches conduct outside the practice of law.15

Model Rule 8.4The General Rule

Model Rule 8.4(b)

Subsection (b) of MR 8.4 would clearly apply to the attorney/ contract manager, as it states that misconduct includes criminal acts reecting adversely on the lawyers integrity. Where the application of 8.4(b) becomes murky in this analysis is determining what criminal acts are most likely to occur.23 To begin with, for the purposes of the analysis of 8.4(b) as applied to the role of contract manager, the focus is on criminal acts committed in the context of employment in such a role, not to acts outside of employment. Many criminal acts could be found relevant to contracting, including misrepresenJournal of Contract Management / Summer 2009 43

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tations of pricing data or fraudulent bidding,24 certications, billing, or invoicing.25 The contract manager may be convicted for any of these by criminal sanctions in state or federal courts. Since all of these types of infractions may be said to reect adversely on a lawyers honesty, any such conviction may be evidence of a violation of the Model Rules.26 Another example might be misappropriation of government property. For example, a contract manager may knowingly allow his or her company to misuse government property provided to the company for performance on contract A by using the property to perform work under contract B. While this may not amount to theft or conversion, it may lead to sanctions against the company and the involved parties (including the contract manager) as violations of 18 U.S.C. 641.27 A nal note regarding the relevance of MR 8.4(b) is that jurisprudence concerning this subsection also reinforces the application of the rule to situations outside of a lawyers practice, making it clearer that it does apply in a situation in which the lawyer is doing some other job.28 Though one would hope that such criminal acts are few and far between by attorney/contract managers, this application of the rule is worth noting as it adds another layer of expectation on the lawyer serving in this role.

Another example would be a material misrepresentation of facts in a proposal (such as the number of hours required to manufacture a good), or a false Truth in Negotiations Act (TINA) certication.31 In fact, a misrepresentation in any certication required by the FAR (such as those for child labor laws) would qualify as a violation of MR 8.4(c).32 The accuracy of the employers certication may be dicult to determine for certain, but the attorney/contract manager should be aware of the impact if he or she is signing such a certication. Even a lack of due attention to this requirement as a contract manager may be considered negligence and be grounds for discipline.33 And, as previously discussed, even nonclients have an expectation that they will be dealt with honestly by an attorney, so if the attorney/contract manager engages in behavior impacting other professionals with whom he or she deals and that is less than honest, he or she should reasonably expect this to be a violation of MR 8.4(c).34

Model Rule 8.4(d)

MR 8.4(d) concerns conduct prejudicial to the administration of justice and is not quite as relevant to the inquiry here. Outside the client-representation model, conduct contrary to these subsections by an attorney/contract manager is more dicult to identify. Contract managers are not typically involved in the administration of justice. Where a lawyer in this role risks a violation of MR 8.4(d) is during an investigative phase of possible contractual violations. For example, consider an investigation by the government into charging practices, in which an attorney in this role must submit timesheets, or testify as to how he or she charges his or her time or decides what work qualies as a contract charge. Delayed responses to government inquiries or misrepresenting the status of such responses could be considered a violation of subsection (d).35 However, an investigation may not even be required in this case. The government routinely audits its contracts, sometimes before the award (as in the case of sole source acquisitions) and often post-award. In the U.S. defense sector, these audits are conducted by either the Defense Contract Audit Agency or the Defense Contract Management Agency, or both. The industry contract manager plays a key role in these audits, interfacing with auditors, submitting data, and certifying submissions as necessary. These audits are used to determine or prevent misconduct, and the attorney/contract manager participating in such an audit is therefore arguably part of the process of the administration of justice. Misconduct in such situations would certainly fall under the category envisioned in MR 8.4(d).

Model Rule 8.4(c)

An analysis of MR 8.4(c) may appear to be somewhat repetitive in that fraud, deceit, dishonesty, and misrepresentation are present in the situations previously discussed. But these general categories may apply to situations outside criminal sanctions or attempts to violate the rules of conduct. In fact, it is possible that a violation of MR 8.4(c) may occur for actions that seem slightly more innocuous, but which represent the same breach of trust that can warrant discipline by the bar. For example, contract managers working for federal contractors are required to keep timecards and accurately record how they spend their time at work, according to company policy.29 Recording time inaccurately has nancial implications for a company, as it may result in the companys labor or overhead rates being less competitive. More important, incorrect charging can result in sanctions against a company, and discipline against the infringing employee. Should a lawyer serving as a contract manager run afoul of this by not charging his or her time appropriately, the lawyer also risks a violation of MR 8.4(c).30
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Model Rule 8.4(e)

MR 8.4(e) asserts that it is misconduct to state or imply an ability to inuence improperly a government agency or ocial or to achieve results by violating the other rules of conduct or other laws. In a government contracting environment, in which industry contract managers negotiate with their government counterparts, one can see how this rule may be violated. A lawyer in this role must be careful not to imply to his or her government counterpart that he or she has inuence with another government employee, such as a political appointee or congressional ocial. (Similarly, a government contracting ocer should not imply to his or her industry counterpart that he or she may have certain inuence with other government agents to make things happen.) Such an assertion may be particularly troublesome in dealing with a government contracting ocer, such as during contract negotiations, as it may be perceived as a threat in the right (or perhaps wrong) circumstances. It would certainly be misconduct under MR 8.4(e). In a related circumstance, the attorney/contract manager walks a ne line during negotiations in which elevating a dispute to a higher level must not be seen as an implication of inuence in violation of 8.4(e), if posed as a threat rather than an appeal of a decision. Elevation implicating a threat or implying an ability to inuence something contrary to the other partys position could violate 8.4(e). The attorney in this case should take steps to be clear that due to the disagreement or dispute during negotiations, an elevation to a dierent level is necessary for reasons of limits on his or her own authority, rather than an attempt to inuence. Similarly, an attorney/contract manager should be careful not to imply to any coworker that he or she may achieve some desired result for the company by any act that violates other laws, including contracting regulations. Although the contract manager may not commit the act, informing a coworker that a specic result can be achieved by his or her violation of a regulation makes the attorney culpable for a violation of the applicable law and/or regulation and of MR 8.4(e) (as well as MR 8.4(a)).

In roles in which a government or organization puts its faith in the competence and integrity of a lawyer, MR 8.4 implies perhaps a higher burden of ethical duty. A much higher level of application may be illustrative. Dean Nancy Rappaport of the University of Houston Law School argues this when examining the discipline meted out to former President Bill Clinton for his conduct before a tribunal investigating the Lewinsky aair. Dean Rappaport says, A president who is also a lawyer should not play upon the symbolism of the oce of the president to the exclusion of remembering the duties of an oce of the court.37 While clearly not the level of a president, government contracting ocers are certainly in a position of public trust in which the people have granted them specic authority. An attorney in this position must remember that a violation of this public trust calls into question his or her tness as a lawyer. MR 8.4 serves as a starting point, due to its broad application. But, as noted, at least two other rules apply. The next section deals with MR 1.6.

Model Rule 1.6 deals with the condentiality of information, and is written with the client representation model in mind.38 Therefore, while it may seem like a leap to apply the rule to an employment arrangement outside the lawyer-client model, it is worth a brief examination of subsection (a) of the rule, because the role of contract manager carries with it certain duties that bring this rule into play.

Model Rule 1.6Implications of Implied Consent

Model Rule 1.6(a)

During the course of proposal submission, contract negotiations, and pre- or post-award audits of government contracts, the contract manager must disclose certain information relating to pricing, estimating methods, time charging, proposed prot percentages, etc.39 In addition, during negotiations a contract manager may need to reveal limits on his or her authority, or a price below which he or she must get approval from superiors. Most of this information is considered to be proprietary, and would not be released by the company outside of this process.40 As such, can an attorney serving in this role be said to have informed consent in accordance with the requirements of MR 1.6(a), or is the disclosure impliedly authorized? The answer may be that both are true. First, one can assume that by establishing a contract manager position with the duties previously identied, a government
Journal of Contract Management / Summer 2009 45

Model Rule 8.4Summary

All of these provisions of MR 8.4 are applicable as noted. More generally, it may be stated that MR 8.4 applies because the contract manager in a government contracting environment is, in some respects, in a position of public trust. In industry employment, the role is more of a position of private trust, and the rule still applies.36

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contractor acts with knowledge of the regulations and requirements for such contracts, and thus vests in its negotiators the authority to disclose what is necessary. One can credibly argue that vesting this authority means the organizations leadership is well informed of the disclosure requirements that must be followed. In the case that they are not fully informed, the duty of a contract manager is to know what can and must be disclosed and to act for the company accordingly. Thus exercising the role itself may represent informed consent. While this is still outside the client representation model, an attorney in the role of contract manager acts as a representative of the organization (an agent), and knowing his or her duties to his or her employer in relation to condentiality of information can help guide the attorney in disclosing the right amount of information at the right time. Secondly, by appointing a contract manager to negotiate with the government on behalf of a corporation, the corporation must necessarily give the contract manager authority to disclose pertinent information in accordance with the regulationsthe contract managers implied authorization. Many contract managers have the authority to sign disclosure documents. Thus the position of contract manager generally implies authorization to disclose. Again, this remains outside traditional representation, but the attorney familiar with the condentiality rules can and should understand what his or her authority is to disclose. It may be also fair to assert that an attorney in this role has a higher duty than his or her non-lawyer counterparts to recognize these limits because of his or her understanding of lawyer-client condentiality. In other words, the attorney should not disclose more than is necessary for the negotiation or issue at hand. So, the implied disclosure provisions of MR 1.6(a) should be considered as the attorney/contract manager exercises his or her duties on behalf of the company. The attorney/contract manager should be aware of the limits of disclosure authorization, but aect the proper amount of disclosure in order to execute his or her responsibilities. Doing so will ensure the attorney/contract manager meets his or her ethical responsibility under this rule. The next applicable rule, MR 5.7, also provides guidance that the attorney-contract manager will nd useful.

The waters get murkier for an attorney/contract manager when considering the provisions of MR 5.7, which places the attorney squarely within the connes of the rules of conduct when he or she provides law-related services.41 MR 5.7 is the result of concerns within the ABA in the 1980s over the growth of the ancillary business phenomenon, in which more and larger law rms began providing services through either the rm or related entities that provided nonlegal services.42 On its face, MR 5.7 appears to apply only to those attorneys in a practice setting or in an entity controlled by the attorney. But the denition of law-related services in subsection (b) makes the line of application for an attorney/contract manager dicult to draw. Because law-related services may be substantively related to the provision of legal services and not prohibited as an unauthorized practice when performed by a non-lawyer, the rst question in applying this rule is whether the duties of a contract manager meet those two criteria. The answer is probably yes. Duties that include contract drafting and negotiation are those that are typically done by lawyers on behalf of their clients, which can thus be said to be substantively related to the practice of law. In some cases, the contract manager is authorized to author or review, negotiate, and execute a contract with no consultation with an attorney. In most cases, however, in-house counsel typically reviews contracts written or negotiated by the contracts department.43 So, a contract manager performing these duties routinely means possibly engaging in the provision of law-related services. The second part of the denition is similarly applicable here, in that the contract management function is not prohibited as an unauthorized practice of law when performed by nonlawyers. In the government contracting environment, the vast majority of contract managers are not lawyers, but rather career contract specialists. While they consult with counsel, as necessary, most of their work is done outside the connes of the legal department. Indeed, the contracts department may not even be a subordinate organization to the legal department.44 Thus it may be said that this work is not an unauthorized practice of law. Assuming, based on this analysis, that the attorney/contract manager is providing law-related services, as dened by MR 5.7, the question he or she must ask is whether he or she remains subject to the MRPC for such work under subsection

Nonlegal Services

Model Rule 5.7The Intersection of the Practice of Law and the Provision of
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(a). This subsection requires that the services are provided in circumstances not distinct from the provision of legal services to a client or when provided by an entity controlled, at least in part, by the attorney. This hurdle is a bit higher, since the attorney in this case probably does not control the entity that employs him or her. But he or she certainly acts as an agent in this case; and depending on the level of authority granted, may control enough of the entity to bring the rule into play (i.e., has authority to bind the company to a contract). In either case, the authority to bind a company through execution of contractual documents may be interpreted as control for the limited circumstances at hand. This is especially true in the case of an attorney/contract manager who is in the upper levels of management. And in the case of a small business working on a government contract, the attorney/contract manager may also be a director of the company, in which case he or she would clearly control the entity and be subject to the rule. Finally, the jurisdiction in which the attorney works may in fact treat his or her role as contract manager as the practice of law because it is an attorney doing the work.45 This still leaves open the question of whether MR 5.7 applies. The best answer is that the application may be situation specic. In order to resolve this, an attorney/contract manager must be aware of the likelihood that his or her services are law-related, as dened by MR 5.7. The attorney/contract manager must then consider if his or her authority may reasonably be interpreted as representing a circumstance in which he or she controls an entity for the purposes of the situation and know whether or not his or her jurisdiction recognizes the work performed as the practice of law. If the answer to these is yes, the attorney/contract manager becomes subject to all the Model Rules and may need to examine how rules other than those identied here may apply.

manager in the government contracting eld works in a highly regulated market, requiring specialized knowledge of acquisition rules and policies that govern not only contract performance, but also the behavior of the actors. Within this arena, one may nd many lawyers who, for one reason or another, have left or never joined the more traditional client-representation career path, instead choosing to apply their legal skills outside this paradigm. But for those who are bar-admitted, and thus ocers of the court, do they have a duty of ethics that goes beyond that stated by NCMA or contract regulations? Simply put, the answer is yes. The Model Rules do apply, and specically MR 8.4, 1.6, and 5.7 are important for the attorney to recognize and understand in this context. MR 8.4s general application to the profession, whether in or out of practice, should always govern the attorney/contract manager and guide his or her conduct. Attorneys should be mindful of the provisions of MR 8.4 when executing documents, communicating within and outside the company, participating in audits, and other investigations. MR 8.4 is perhaps the starting point for guidance for these attorneys. Many attorneys have found themselves suspended or disbarred for acts that constituted misconduct under this rule which had nothing whatsoever to do with their law practice, including some attorneys who were not actively practicing law at all. MR 1.6 governs the condentiality of a clients information. As such, it provides the attorney/contract manager a tool with which to analyze his or her implied authorization to disclose and whether or not disclosure of proprietary information is under the umbrella of informed consent. If the attorney keeps in mind that his or her employer may be considered a client, this rule will guide him or her in the decision of what to reveal and when to do so during the contracting process. Finally, MR 5.7 provides a framework within which the attorney can analyze the application of all the Model Rules to his or her position. Since attorney/contract managers likely provide a law-related service that is not prohibited as an unauthorized practice of law (given that this work is mostly performed by non-lawyers), and if it might be reasonable to conclude that they bind an entity through contracting, attorney/contract managers assume a mantle of ethical duty that is higher than that of their non-attorney peers. So why should an attorney care? If he or she has chosen to leave the practice of law, or not pursue the representation archetype as a career at all, he or she might assume that the MRPC are nothing to worry about. And perhaps if he or she
Journal of Contract Management / Summer 2009 47

Contract management professionals work in a eld closely related to the practice of law. By encompassing duties of contract drafting, negotiation, risk analysis, and executing and amending contracts, the contract management professional works side-by-side with those in the legal eld, often crossing the dividing line between a business function and the practice of law. With its own professional association, NCMA, the contract management profession has put forth standards of professionalism and a code of conduct that generally reect many of the same principles as those of the ABAs MRPC. The contract

Conclusion

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chooses not to seek bar admission and to instead go o and do something totally unrelated to the practice of law, he or she can freely disregard the rules. Certainly there is no way for the bar to administer discipline against a law school graduate who is not a bar member, short of some extreme attempt to rescind a degree. But for those who are members of the bar, there are abundant state and federal court records validating the proposition that ocers of the court can and will be disciplined for conduct unrelated to their practice of law, even to the extent of disbarment.46 It may be easy for bar members to slip into a sense of being outside the practice of law and thus forget that the bars ethical expectations remain valid. Holding themselves to those expectations can prevent reprimand, suspension, or disbarment. From a loftier perspective, one may also argue that after completing such a rigorous course of study as that required for the Juris Doctor, and at the expense required, a lawyer who chooses to work outside the traditional practice model has as much to lose as one who practices. After all, why go through all that trouble if one is not willing to uphold the standards expected? These rules are important not just because of the discipline that may result from violations, but because the attorney has, by becoming an ocer of the court, taken on a yoke of professional responsibility that exceeds that of the non-lawyer. Being trained in the art and science of legal analysis, and recognizing the privileges and burdens that come with this knowledge, the attorney/contract manager does well to recognize the intersection of his or her employment with his or her training, and act at all times in accordance with these rules. JCM

5. Ibid. 6. See NCMA Careers page, www.ncmahq.org/Careers. 7. See, e.g., CFCM eligibility requirements, www.ncmahq. org/Careers/content.cfm?ItemNumber=960. 8. See, e.g., NCMA recertication requirements, www.ncmahq.org/Careers/Content.cfm?Item Number=973&navItemNumber=2953. 9. NCMA About Us page, supra note 4. 10. Ibid. 11. For example, at Lockheed Martin, all contract managers are granted a level of authority according to a Delegation of Authority matrix, which identies different levels of employees (i.e., a Level 5) and the most common contract structures. By consulting the matrix, the employee can determine what dollar value of a given contract type he or she is permitted to execute on behalf of the company. Because the delegation of authority is considered proprietary information, it is not reproduced herein. 12. For example, Lockheed Martin has disseminated Corporate Policy Statements that specically identify the role of in-house counsel and the restriction that only legal department employees may act as counsel for the corporation. Again, the specics of the policy are considered proprietary information and are not reproduced herein. 13. This situation is addressed by MR 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Lawthe specics of which are beyond the scope of this analysis. This exclusion is consistent with the fundamental basis of this article that attorneys working as contract managers are not practicing law within the traditional client representation paradigm. 14. ABA, MRPC 8.4, Comment 5 (2008), which provides: Lawyers holding public ofce assume legal responsibilities going beyond those of other citizens. A lawyers abuse of public ofce can suggest an inability to fulll the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and ofcer, director or manager of a corporation or other organization. 15. ABA, Center for Professional Responsibility, Annotated Model Rules of Professional Conduct, sixth edition (2007): 576. 16. See, e.g., In Re Petition for Disciplinary Action Against Shinnick, 552 N.W.2d 212, 214 (Minn. 1996) (stating that in a suspension order, We, too, conclude that although Shinnick was not acting as an attorney representing clients in either transaction, his conduct nevertheless warrants discipline. In prior cases, we have observed that both clients and nonclients have a right to assume that lawyers will treat them fairly and honestly in all of their dealings, whether professional or otherwise. Thus discipline is appropriate in some cases in which attorneys engage in misconduct outside the practice of law.). ( See also People v. Parsley, 109 P.3d 1060, 1065 (Co. 2005) (holding that, Although [the] respondents actions did not directly concern the practice of law, they harmed a number of parties, as well as the legal profession and respect for the law in general. [The] respondents breach of integrity is simply unacceptable for a member of the legal profession.).)

Endnotes
1. I currently serve as a contract manager for a defense contractor, and within my own department are three attorneys who no longer practice law in the traditional sense. 2. American Bar Association, Model Rules of Professional Conduct, Preamble and Scope (2008): paragraph 5. 3. This job description comes from the Lockheed Martin Careers Web site at www.lockheedmartinjobs.com/ jobsearch_all.asp. A more complete description of duties for different levels of contracting professionals may be found on the ofcial NCMA Web site at www.ncmahq.org/ Careers. While not produced here, these model descriptions further illustrate the complexity of the skill sets required. To any legally-trained employee, the adjacency to the duties of a lawyer becomes clear upon reading the descriptions. 4. See NCMA About Us page, www.ncmahq.org/About. 48 Summer 2009 / Journal of Contract Management

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17. Each section is examined here, with the exception of 8.4(f), which is excluded because conduct assisting a judicial ofcer in violation of judicial rules is extremely unlikely to occur. 18. ABA, MRPC 8.4(a) (2008). 19. 10 U.S.C. 2306a, the Truth in Negotiations Act (TINA), requires these certications when certain criteria are met, such as when a contract is awarded as a sole sourcethat is, awarded to a specic company in a noncompetitive arrangement. The reasons for this type of award are not relevant to this discussion, but the pricing certication is. This certication is a signed statement by the contract manager that all pricing data provided to the government is accurate and complete. Knowingly submitting inaccurate data is grounds for several disciplinary actions by the government, including possible debarment, which is, in this case, a prohibition on a rm from further performing government contract work. 20. To illustrate, a search of the Federal Contractor Misconduct Database from the Project on Government Oversight nds 74 instances of misconduct considered government contract fraud between 1995 and 2008. The database is available at www.contractormisconduct.org/index.cfm. 21. See, e.g., People v. Cozier, 74 P.3d 531, 536 (Co. 2003) (holding that making a misrepresentation through a notary after inducing the notary to verify a signature he had not witnessed constituted a violation of Colorado RPC 8.4(a)). 22. Ibid. As an example, the notary referenced in note 21 was not bound by the Colorado RPC, but the attorney-respondent was. 23. A search of the Federal Contractor Misconduct Database (supra, note 20) for Criminal under the Court type heading nds 32 instances of criminal conduct, including (but not limited to) antitrust violations, kickbacks, false claims, and bribery. 24. See, e.g., In Re Scott, 805 So.2d 137, 2001-1337 (La. 1/1/502), in which the respondent (Scott) placed bids for a contract with the State Department of Elections and Registration on behalf of James King, who was barred by his employment by the department from bidding on such contracts. Scott bid on the contracts and assigned the work to King. Scott received no remuneration for his participation, but was convicted and sentenced. Although the courts analysis focused on 8.4(c) (and, indeed this case is relevant to that analysis as well), the similar type of professional situation in which Scott acted as a bidder for a government contract, and was convicted for his fraudulent role, makes this case particularly appropriate to note. 25. See, e.g., BearingPoint Inc., Quarterly Report 2d Qtr 2005 (Form 10-Q), Exhibit 99.1: 8 (June 30, 2005), accessed at www.contractormisconduct.org/ass/contractors/105/ cases/590/641/bearingpoint-2005-10q_legal-matters.pdf. 26. See, e.g., Mississippi Bar v. Murphy, 675 So.2d 845 (Miss. 1996) (holding that Rule 6(a) of the Rules of Discipline provides that a felony conviction or guilty plea in a state or federal court is conclusive evidence of a violation, the result of which must be disbarment). 27. 18 U.S.C. 641 makes theft or conversion of government property a crime punishable by nes, imprisonment, or both.

This would not seem to apply to mere misuse, but the section has been interpreted by the Supreme Court to be broad enough to include misuse. ( See, e.g., Morissette v. United States, 342 U.S. 246 (1952).) 28. See, e.g., In the Matter of Wright, 276 Kan. 357, 76 P.3d 1018 (2003) (an order disbarring the respondent for misappropriation of funds unconnected to his legal practice). ( See also In Re Petition for Disciplinary Action Against Pugh, 710 N.W.2d 285 (Minn. 2006) (an order disbarring the respondent for embezzling funds from a real estate closing company he owned, holding that a lawyers ethical obligations are not limited to actions occurring in the practice of law, but extend to business dealings unconnected with the practice of law.).) 29. These policies may vary by company. Some corporations may consider their contract staff to be part of their overhead expenses, and thus the contract manager charges his or her time to an overhead code of some sort. At Lockheed Martin, the time spent working on a particular contract is directly charged to a code for that contract, with other time being charged to appropriate codes, such as charge codes for negotiation or proposal preparation. 30. See, e.g., In Re Lawrence, 884 So.2d 561, 2004-0019 (La. 10/19/04) (in which the respondent was suspended for padding the timesheets he used to record his work, even though the timesheets were not used to bill a client). 31. TINA, supra note 19. 32. For example, FAR 55.222-18 requires contractors to certify that goods being offered are either not made in countries that employ child labor or if supplies are sourced from such countries, that the contractor made a good faith effort to determine whether forced child labor was used in producing the goods. 33. See, e.g., In Re Conduct of Skagen, 342 Or. 183, 217, 149 P.3d 1171, 1191 (Ore. 2006) (holding that in accordance with ABA standards as to mental state, the respondent acted negligently with respect to the handling of his trust account). 34. In Re Shinnick, supra note 16. 35. See, e.g., Attorney Grievance Commn of Maryland v. Reinhardt, 391 Md. 209, 892 A.2d 533 (Md. 2006). In this case, Reinhardt delayed work on the case and then misrepresented to his client the status of his work. The court found this conduct a violation of 8.4(d) and Reinhardt was suspended from practice. Although specically within the client-representation model, this case may be analogous to a contract manager stalling a government investigation or audit. 36. ABA, MRPC 8.4, Comment 5 (2008). 37. Nancy B. Rappaport, Presidential Ethics: Should a Law Degree Make a Difference? The Georgetown Journal of Legal Ethics, 14 (20002001): 725. 38. ABA, MRPC 1.6, Comment 1 (2008). 39. TINA, supra note 19. 40. In fact, when a corporation such as Lockheed Martin releases such information to a government Journal of Contract Management / Summer 2009 49

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agency in furtherance of contract negotiations, award, or audit, the government employees to which it is disclosed are also compelled by regulations to prevent unauthorized disclosures. 41. ABA, MRPC 5.7 (2008). 42. See, e.g., Dennis J. Block, Irwin H. Warren, and George F. Meierhofer Jr., Model Rule of Professional Conduct 5.7: Its Origin and Interpretation, The Georgetown Journal of Legal Ethics (19911992): 745757. Although this article was written at the time of the rst version of MR 5.7, the prohibitory rule, the concise history of ancillary services is particularly instructive. The authors note that the growth of the ancillary services phenomenon among large rms was probably rooted in the deregulation of the Reagan presidency. It is interesting to note that the growth of the ancillary business phenomenon at a time of general deregulation happened simultaneously with the codication of contracting rules into the FAR in 1983. 43. Anecdotally speaking, it should be added that in some cases, in-house counsel may even lead such work, with the contract manager assisting as requested. For example, at Lockheed Martin, the legal department may lead the authoring and negotiation of a contract in a new commercial venture due to the risks inherent in a commercial arrangement versus the security and structured regulation of the government environment. This situation would certainly qualify as law-related. 44. For example, at Lockheed Martin, the contracts organization aligns under the nance and business operations organization, theoretically due to the intertwining responsibilities of contracts and nance in the government contracts environment. 45. See, e.g., Iowa Rules of Professional Conduct, R. 32:5.7, Comment 12 (2005) (which states, in relevant part, Certain services that may be performed by non-lawyers nonetheless are treated as the practice of law in Iowa when performed by lawyers; and R. 32:3.9, Comment 4, which states, A lawyer representing a client before a governmental body in a non-adjudicative proceeding is engaged in the practice of law, even if such undertakings could also be engaged in by non-lawyers.). 46. See, e.g., Parsley, supra note 16; see also cases cited supra notes 21, 26, and 28.

50 Summer 2009 / Journal of Contract Management