Playing Professional Responsibility Hardball With Federal Agency Lawyers
Government Agency lawyers live in a bubble. They’re protected by the same system of corruption, nepotism, waste, fraud and abuse that causes so much hardship to many Federal employees. As long as these lawyers tow the party line, their jobs are safe; they get nice pensions; and they don’t have to worry about much.
While not all Government lawyers act in this way, the temptation to do so is enormous. Following the Agency director, Special Agent in Charge or some other high ranking bureaucrat is generally a big key to most any Federal Agency position, so a lawyer’s should be no different.
However, there’s one authority greater than that bureaucrat. It sends shock waves through all Federal Agency lawyers and in the vast majority of cases, these people are shocked by a new system of authority, something completely foreign: The Bar. Even Bill Clinton lost his Arkansas law license because the Arkansas bar people didn’t care that he only committed perjury about sex.
The vast majority of bar complaints come from disgruntled clients who didn’t get a good result on the case, so they blame their lawyer. The average lawyer in private practice will get a few of these in his or her career. For this reason, private practice attorneys after a number of years in practice have well developed defensive systems to cover themselves against these complaints.
Agency lawyers don’t deal with this system and don’t have the first clue about it. As such, they aren’t generally up on Professional Responsibility rules. The fear of suspension or disbarment can be so great, that the Agency lawyer simply may not have the stomach for a bar complaint threat. There’s very little reward for the Agency lawyer to go through one of these bar messes if it can be avoided.
Consider these examples that Agency lawyers don’t have the first clue about, yet fully support their bureaucrat bosses:
1. A federal employee has an existing whistle blower claim. To tighten the screws, the Agency says at mediation that if the employee refuses to take its low ball offer, the Agency will terminate the employee for reasons it already knows to be untrue. It’s unethical for lawyers to defend claims that have no merit. Since the federal employee will be filing another Merit Systems Protection Board claim against his/her agency, the agency lawyer will be litigating a claim: a frivolous, legal and factual claim because his/her bureaucrat boss ordered him to do so. His/her state’s bar – doesn’t care about the bubble – that’s a violation.
2. A federal employee has an existing legal action for discrimination and he/she is represented by an attorney. The Agency lawyer executes an order from bureaucrat boss to send the Proposal to Remove letter directly to the employee, notwithstanding the employee is represented by counsel. In most state bars, that’s a violation because the lawyer communicated directly with someone who that lawyer knew was represented. The agency lawyer had a professional responsibility requirement to communicate with that person’s lawyer and didn’t. His/her state’s bar – doesn’t care about the bubble – that’s a violation.
3. Someone at the U.S. State Department orders a U.S. Attorney not to disclose emails from Hillary Clinton as part of a Freedom of Information Act lawsuit because they will her make her look bad. U.S. Attorney agrees. Federal Judge later finds out the U.S. Attorney was more loyal to the Clintons than to the Rules of Professional Responsibility that a lawyer must follow. That lawyer should get ready to become a lobbyist.
Here’s the bottom line: the bubble can’t protect the bad guys from everything.