It’s easy to think that security clearance lawyers are only for the times when you have a major issue, but for many, an ounce of prevention is worth more than a pound of cure. But when is the right time to hire one and what should you expect?
When to Hire a Security Clearance Lawyer
If you think you might run into some hurdles in the clearance process, before you submit your SF-86, you’ll want to get some legal counsel. I’ll repeat it for those in the back – operative word is before you submit your SF-86. So many issues can be avoided or minimized with proactive counsel. Getting a lawyer once your clearance is denied or revoked is much more costly and time consuming than getting counsel before you submit your SF-86. If you’re just starting out in the cleared arena, the faster you can get on a project, the sooner you can begin billing. The longer a clearance takes, the less profitable you are to your employer. So, the ability to increase your odds of obtaining an interim clearance could be a key factor in advancing your career.
Additionally, the peace of mind and prosecution protection are benefits that can’t be overlooked. According to security clearance attorney, Sean Bigley, “If you’re later accused by the government of making a false statement – a felony – you can rely on advice of counsel as a legal defense, provided you were fully forthcoming with your attorney and your attorney reasonably advised you to answer the particular question the way you did.”
But do not worry if you filled out your SF-86 without a lawyer. It’s not too late. However, you should get competent, experienced legal counsel immediately upon receiving written notice from the government of any proposed or actual adverse action – like a Statement of Reasons (SOR), suspension notice, or interrogatories. None of these documents spell an easy road ahead, but the worst thing to do at this point is to try to go it alone. You don’t want to take on investigators, adjudicators, and attorneys all by yourself. The investment in a lawyer at this point could be the difference between continuing your national security career or ending it.
What to Expect When You Call a Lawyer
The first thing to consider is who to call – and it’s not ghostbusters. While a quick google search might turn up some names, it’s important to consider an attorney’s expertise in the field, reputation, and even your own gut feeling. If it seems like they don’t care about your case, it’s better to swipe left to the next option before you waste anymore time. It all comes down to your research and homework based on what you find on the attorney’s website, your google searches, and friend referrals.
Bigley recommends asking the following questions when choosing an attorney:
- What experience, if any, do you have as a security clearance investigator, adjudicator or attorney?
- Do you practice in other areas of law, or is your entire practice dedicated to security clearance matters?
- Who would actually be preparing my case – an attorney, paralegal, or legal assistant?
- How many security clearance cases have you handled, and approximately how many times have you appeared before this particular agency or department?
- How are your fees structured?
Legal Fees Are a Factor But Not the Starting Point
While you may be tempted to start your legal search with fees as the top question, it’s important to remember that for many clearance-holders, career, livelihood, and professional reputation all ride on a favorable adjudication. While fees are an important piece of the equation, it’s important to remember that a lot rides on a favorable resolution.
Legal fees are not the same for every case due to a number of factors. If your case has a tight turnaround timeline or has a number of issues with varying degrees of complexity to be addressed, it can impact the fee. A significant role in legal fees is whether the case can be resolved at the first stage of the appeal process or if it needs a second level appeal. Federal agencies are a factor, as well. Handling a case for a CIA clearance is different than a DoD clearance. Other factors that impact the fee are applicant location and whether or not expert witnesses (psychologist or laboratory testing) are necessary to strengthen the defense.
So, what does that mean dollar-wise? Well, if you’re facing a denial or revocation, expect to start at $2,500 on legal fees for a straightforward, run-of-the-mill case won at the first-level appeal and increase to many times that cost for a very complex, novel, and time-consuming case that requires two levels of appeal. And for the most complex cases, i.e., Inspector General is involved and extensive documentary records are required, you could be in the five figures for legal fees. The cost of your case needs to be considered in relation to your career earning potential. Sometimes, cutting corners on cost could ‘get you what you pay for.’
What to Look OUt for When you Call in A Lawyer
When your career is at stake, it’s important to ask the important questions in order to ferret out the attorneys who are just out to make a quick buck.
Bigley shares, “When I first got into this field after putting myself through law school as an OPM (now DCSA) investigator, there were only a few attorneys in the entire country handling security clearance cases. Since then, with security clearances spilling more into the mainstream, a number of other purported experts have popped up online, aggressively advertising themselves as “security clearance attorneys” and making all sorts of wild claims about why clearance-holders should hire them. Take attorney self-promotion that is not backed up by facts for what it is – used car salesman tactics – and run for the hills.”
The discipline of security clearance law is a very technical and niche, so someone who has the actual experience of working for the government first as personnel security investigators, adjudicators, or attorneys will be far more valuable than hiring someone who has read about the processes and knows the law. While many good attorneys are practicing, it’s important to avoid those who know how to advertise well but don’t have a proven track record. Knowing what to look for is the place to start, and begin your process by asking questions and paying close attention to the provable facts that you get in response.
