Playing Professional Responsibility Hardcore with Federal Agency Lawyers – Part Two

A very common violation of professional responsibility that many attorneys for federal government agencies routinely commit is the failure to transmit a plea agreement from the employee’s attorney to the agency. Many of these Agency attorneys mistakenly believe that when the Agency’s liquidation officer informed the Agency attorney that the federal agency had no financial authority to settle an employment case, they are released from the professional responsibility of filing any and all one of the claims for liquidation, which is the standard professional liability requirement in many jurisdictions.

In fact, there may even be a federal agency protocol that these attorneys must follow regarding forwarding or specifically not forwarding certain offers from plaintiffs that exceed a certain amount of money. However, if that policy or protocol conflicts with that attorney’s professional responsibility requirements, that attorney may not evade that duty. Clients often ask lawyers to ignore professional liability rules. A client’s consent thereto does not relieve that attorney of those duties. I have heard from other attorneys that a typical defense attorney violates this rule at least half the time.

Equally fascinating is the reaction of the federal agency attorney when the plaintiff’s attorney reminds the government attorney of their responsibility to follow these rules. It is almost immediately censored as a “threat” and along with it comes the accusation by the agency’s attorney that the plaintiff’s own attorney has committed a breach of professional responsibility through this reminder.

This reaction is strictly emotional and has absolutely no basis in reality. It is a product of the very environment of the agency bubble in which the lawyer lives. Any force outside of that bubble is a foreign intrusion with which you have little or no 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 falls under the general category of Rule 8 – Maintaining the integrity of the profession.

Rules of Professional Conduct: Rule 8.4 — Misconduct

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly aid or induce another to do so, or do so through the acts of another;

(b) Committing a criminal act that reflects negatively on the attorney’s honesty, reliability, or suitability in other respects;

(c) Engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation;

d) Engaging in conduct that seriously interferes with the administration of justice;

(e) State or imply the 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 rules of judicial conduct or other law; gold

(g) Soliciting or threatening to file criminal charges or disciplinary charges solely to gain advantage in a civil matter.

In their gut reaction, these agency attorneys assume that 8.4(g) has been violated. However, a Claimant’s attorney will have committed a violation of 8.4(g) only if that attorney actually linked that reminder of professional responsibility to a litigation claim. For example, if the plaintiff’s attorney told the agency’s attorney that unless the agency paid his client an amount of money or did not file a motion for summary judgment, he was going to prosecute violations of professional responsibility.

The motivations behind the plaintiff lawyers who send these reminders are twofold. One is to make sure that no client is harmed by a lawyer who does not follow these rules. After all, this particular rule falls under the category of maintaining the integrity of the profession. Two, is to determine whether a particular attorney is willing to subject her conduct to the Lawyer’s Rules of Professional Responsibility. If that person is not, then in many jurisdictions, the Claimant’s attorney would then can have annual bonus to report that lawyer to your state bar association.

DC Rules of Professional Conduct: Rule 8.3–Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a material question as to that lawyer’s honesty, reliability or adequacy in other respects, should inform the appropriate professional authority.

Therefore, because these lawyers do not deal with individual clients and are, let’s face it, part of the agency, they may lack professional independence to handle the litigation. Some of these attorneys may honestly believe that following Agency protocol protects them from professional liability issues. Could not be farther from the truth. A simple justified reminder is not a threat.