Playing hard with professional responsibility with federal agency attorneys
Lawyers for government agencies live in a bubble. They are protected by the same system of corruption, nepotism, waste, fraud, and abuse that causes so much hardship for many federal employees. As long as these lawyers follow the party line, their jobs will be safe; they get nice pensions; and they don’t have to worry much.
While not all government attorneys act 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 great key to most federal agency positions, so that of an attorney should be no different.
However, there is a greater authority than that bureaucrat. It sends shockwaves through all Federal Agency attorneys and, in the vast majority of cases, these people are shocked by a new system of authority, something completely strange: The Bar. Even Bill Clinton lost his attorney license Arkansas because the people at the Arkansas Bar Association didn’t care that he only perjured sex.
The vast majority of bar complaints come from disgruntled clients who did not get a good result in the case, for which they blame their attorney. The average attorney in private practice will get some of these in their career. For this reason, private practice attorneys after several years in practice have developed well-developed defensive systems to protect against these complaints.
Agency attorneys do not deal with this system and have no idea about it. As such, they generally do not comply with the rules of Professional Responsibility. The fear of suspension or disqualification can be so great that the Agency attorney may simply not have the stomach for a threat of a bar lawsuit. There is very little reward to the agency attorney for going through one of these bar messes if it can be avoided.
Consider these examples of which the Agency’s attorneys don’t have the first idea, but fully support their bureaucratic bosses:
1. A federal employee has an existing whistleblower claim. To tighten the screws, the Agency says in mediation that if the employee refuses to accept your low ball offer, the Agency will fire the employee for reasons that it already knows to be false. It is unethical for lawyers to defend claims that have no merit. Since the federal employee will file another claim from the Merit Systems Board of Protection against his agency, the agency’s attorney will litigate a claim – a frivolous, legal, and factual claim because his chief bureaucrat ordered him to do so. The bar of your state, does not care about the bubble, that is a violation.
2. A federal employee has an existing legal action for discrimination and is represented by an attorney. The Agency’s attorney executes an order from the chief bureaucrat to send the Removal Proposal letter directly to the employee, without prejudice to the employee being represented by an attorney. In most state colleges, that is a violation because the attorney contacted someone that the attorney knew was represented directly. The agency’s attorney had a professional responsibility requirement to communicate with that person’s attorney and did not do so. The bar of your state, does not care about the bubble, that is a violation.
3. Someone from the US State Department orders a US attorney not to release Hillary Clinton’s emails as part of a Freedom of Information Act lawsuit because they will make her look bad. The federal prosecutor agrees. Later, the federal judge discovers that the federal prosecutor was more loyal to the Clintons than to the Rules of Professional Responsibility that an attorney must follow. That lawyer should prepare to become a lobbyist.
Here’s the bottom line: the bubble can’t protect the bad guys from everything.