By John V. Berry, Esq.,www.berrylegal.com
Our law firm consults with federal employees who have questions about potential issues with their security clearance, either in obtaining one or in keeping it. We advise and represent federal employees at all stages of the clearance process. A prospective client often has many questions about the timing of hiring a security clearance lawyer in the federal sector process. In sum, we usually advise federal employees that the earlier an attorney experienced in the federal employee security clearance process is consulted, the better. Typically, when an issue is evaluated and addressed, head on by a federal employee, it can help to provide a better potential outcome.
We have often consulted with prospective clients only to find that they have gone too far in the clearance process before consulting counsel and that there is not enough time to resolve the issues that have developed. The old adage that an ounce of prevention is worth a pound of cure is appropriate here. Early preparation for the security clearance process by federal employees, when security concerns arise can avoid more expensive and problematic outcomes later in many cases.
What Can a Security Clearance Lawyer do for a Federal Employee?
We are often asked about how an attorney can assist a federal employee in the security clearance process. Our common response is that there are many ways that an experienced security clearance attorney can help when there are security concerns. A lawyer experienced in the security clearance process can advise an individual before a security clearance problem develops. We have found that most federal employees have a good sense as to whether or not they may have a security concern (e.g. a recent arrest, marriage to a foreign national, drug use, financial / debt issues) as they apply for positions or when they fill out security clearance forms like the e-QIP, SF-86 and/or different various of the SF-85. Sometimes federal employees don’t fully consider how much a potential security issue can affect their ability to obtain or retain a clearance. Having a security clearance lawyer advise a federal employee about the potential issues and outcomes of a security clearance issue can be invaluable.
Early Evaluation for Federal Employees
When a federal employee understands that they may have a potential security issue, consulting with a security clearance lawyer can help them get ahead of the potential security clearance concerns. One of the major problems that we see in the clearance process is where a federal employee comes to us too late in the process to alter a negative clearance outcome that could have been addressed earlier. We have seen individuals that could have likely obtained or retained their security clearance, but did not seek legal advice early enough in the process. Sometimes, we have met with federal employees who have had financial issues which could have been explained or mitigated, but the individual did not realize what type of information was needed for their response and then are left with few options for an appeal. On other occasions, individuals have security concerns but have not listed them because they did not feel they were important or relevant (i.e. a previous arrest or termination from employment). This can cause federal employees to run into truthfulness issues later on in the clearance process. Getting advice on these issues early is the key.
When consulting with a federal employee, a security clearance lawyer can get a good idea as to the seriousness of the security concerns at issue and what level of risk is involved in the person applying for a security clearance. They can sometimes help to put a federal employee’s mind at ease in some cases. Further, in the case of a person who has the option to apply for a clearance, but more time might be needed to mitigate security concerns we can help the person avoid the potential of a denial. In this type of situation, we sometimes advise individuals to wait a year or a few months before applying for or taking a position that requires a security clearance. It is also not uncommon that we anticipate a serious issue with someone obtaining a security clearance, i.e. a recent criminal case, which helps them avoid the embarrassment of applying for a position that they may get only to be removed later when their clearance is not approved.
Furthermore, a security clearance lawyer can help review a federal employee’s security clearance forms to ensure that they are accurate and responsive and consult with them about what to expect. It is critical to disclose all potential information, accurately, on these forms. Not doing so can form the basis for a denial based on a lack of candor or honesty. We often see issues arise from the omission of required information that may not seem to be important (or remembered) at the time the security clearance forms were prepared but later becomes the basis of a clearance denial. Additionally, while rare, it sometimes can be important to discuss potential criminal disclosures in advance. It is not often the case that disclosures about criminal activity becomes the basis for a criminal prosecution, but sometimes these questions need to be asked before completing a clearance submission. In other words, if an individual has a potential security concern it is key to get legal advice early in the process, not late.
Consulting/Representation after the Security Clearance Process Starts
It is also important for a federal employee to have the guidance of a security clearance attorney when the security clearance process has begun in full. The process has begun when the federal employee’s security clearance forms have been submitted and the individual has potential security concerns, i.e. a record of alcohol abuse or financial consideration issues and are in the process of being scheduled for an investigative interview. In such a situation, it is important to go over the security concerns with a client that are likely to come up in the interview with a security clearance lawyer.