A Hard Game of Professional Responsibility with Federal Agency Lawyers – Part Two

A Hard Game of Professional Responsibility with Federal Agency Lawyers – Part Two

A very common violation of professional responsibility that many attorneys for federal government agencies routinely commit is failure to forward a settlement request from the employee’s attorney to the agency. Many of these Agency attorneys mistakenly believe that when the Agency settlement officer informs the Agency attorney that the federal agency does not have the financial authority to settle an employment case, they are absolved of the professional responsibility to present any settlement request that is a standard professional liability requirement in many jurisdictions.

In fact, there may even be federal agency protocol that these attorneys must follow regarding forwarding or specifically not forwarding certain offers from plaintiffs that are over a certain amount of money. However, if this policy or protocol conflicts with that lawyer’s professional responsibility requirements, that lawyer cannot avoid that duty. Lawyers are repeatedly asked by their clients to ignore the rules of professional responsibility. The client’s consent to the same does not release that attorney from those obligations. I have heard from other attorneys that the typical defense attorney violates this rule at least half the time.

Equally fascinating is the reaction of the federal agency attorney to the plaintiff’s attorney reminding the state attorney of his or her responsibility to follow these rules. It was almost immediately censored as a “threat,” and with it came the charge by agency counsel that plaintiff’s counsel had himself committed a breach of professional responsibility by making this reminder.

This reaction is strictly emotional and has absolutely no basis in reality. This is a product of the very environment of the agency bubble in which the lawyer lives. Any force outside of this bubble is a foreign intrusion with which they have little familiarity.

The actual rule is quite similar in most jurisdictions. In Washington, DC, this rule is 8.4(g) of the Rules of Professional Conduct. Most importantly, it is in the general category of Rule 8 – Maintaining the Integrity of the Profession.

Rules of Professional Conduct: Rule 8.4 — Misconduct
It is a professional offense for a lawyer to:

(a) Violating or attempting to violate the Rules of Professional Conduct, knowingly aiding or abetting another to do so, or doing so through the actions of another;

(b) Has committed a criminal act which adversely affects the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that seriously obstructs the administration of justice;

(e) Claims or implies an ability to improperly influence a government agency or official;

(f) knowingly assisting a judge or judicial officer in conduct that is in violation of applicable court conduct rules or other law; or

(g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain advantage in a civil suit.

In their gut reaction, these agency attorneys assume that 8.4(g) has been violated. However, plaintiff’s counsel will have committed a violation of 8.4(g) only if that counsel actually linked this reminder of professional responsibility to a demand for litigation. For example, if the plaintiff’s attorney tells the agency’s attorney that unless the agency pays his client x amount of money or files a motion for summary judgment, he will report professional liability violations.

The motivations behind plaintiffs’ attorneys sending these reminders are twofold. One is to ensure that every client is not disadvantaged by a lawyer who does not follow these rules. After all, this particular rule falls under the category of preserving the integrity of the profession. Second, is to ascertain whether a particular lawyer wishes to subject his conduct to the Rules of Professional Responsibility of the Lawyer. If that person is not, then in many jurisdictions the plaintiff’s attorney then It may be necessary obligation to report that attorney to his or her state bar association.

DC Rules of Professional Conduct: Rule 8.3–Reporting of Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a breach of the Rules of Professional Conduct that raises a material question about that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional body.

Therefore, since these attorneys do not deal with individual clients and are, let’s face it, part of the agency, they may lack professional independence in litigating. Some of these attorneys may sincerely believe that following agency protocol protects them from professional liability issues. Nothing could be further from the truth. A simple, justified reminder is not a threat.

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