A very common breach of professional responsibility routinely committed by attorneys for federal government agencies is failure to convey settlement claims from employee attorneys to the agency. Many of the Agency’s attorneys mistakenly believe that when Agency settlement officials notify Agency attorneys that the federal agency does not have the financial authority to resolve employment cases, they are relieved of their professional responsibility to file any settlement requests, which is standard. professional responsibility requirements in many jurisdictions.
In fact, there may even be federal agency protocol that these attorneys must follow with respect to passing on or specifically not passing on certain offers from plaintiffs that are above a certain amount of money. However, if the policy or protocol conflicts with the requirements of the attorney’s professional responsibilities, the attorney cannot waive the duty. Lawyers are asked time and time again by their clients to ignore the rules of professional responsibility. The client’s consent to the same does not relieve the attorney from those duties. I have heard from other attorneys that it is common for defense attorneys to break this rule at least half the time.
Equally interesting is the reaction of federal agency attorneys to plaintiff’s attorneys reminding government attorneys of their responsibility to follow these rules. It was almost immediately denounced as a “threat” and with it came accusations from the agency’s lawyers that the plaintiff’s own lawyers had committed a breach of professional responsibility by means of this reminder.
This reaction is very emotional and has absolutely no basis in reality. It is a product of the agency bubble environment in which lawyers live. Any power outside the bubble is an alien intrusion with which they are little familiar.
The actual rules are very 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 Professional Integrity.
Rules of Professional Conduct: Rule 8.4 –Breach
It is a professional error for a lawyer to:
(a) Violates or attempts to violate the Rules of Professional Conduct, intentionally helps or induces another person to do so, or does so through the actions of another person;
(b) Committing a criminal act that reflects the honesty, trustworthiness or suitability of the attorney as an attorney in other matters;
(c) Engaging in acts involving dishonesty, fraud, lying or misrepresentation;
(d) Engage in behavior that seriously interferes with the administration of justice;
(e) Expressing or implying the ability to improperly influence a government agency or official;
(f) Deliberately assisting a judge or bailiff in an act that constitutes a violation of the rules of judicial conduct or other applicable law; or
(g) Seeking or threatening to bring criminal or disciplinary proceedings solely to gain advantage in a civil matter.
In their response, the agency’s attorneys assumed that 8.4(g) had been violated. However, Plaintiff’s attorney will commit a breach of 8.4(g) only if the attorney actually links the reminder of professional responsibility to the litigation claim. For example, if Plaintiff’s attorney tells the agency’s attorney that unless the agency pays its client x amount of money or does not file a motion for summary judgment, he will report a breach of professional responsibility.
The motivation behind the plaintiff’s attorney sending this reminder is twofold. One is to ensure that no client is harmed by an attorney who fails to follow these rules. However, this particular rule falls under the category of maintaining the integrity of the profession. Second, to ascertain whether a particular attorney is willing to comply with the Lawyer’s Professional Responsibility Rules. If that person doesn’t, then in many jurisdictions, the plaintiff’s attorney does Possible a bond to report the attorney to his state bar.
DC Rules of Professional Conduct: Rule 8.3–Reporting Misconduct of Professional Conduct
(a) An attorney who becomes aware that another attorney has committed a violation of the Rules of Professional Conduct that raises important questions about that attorney’s honesty, trustworthiness, or suitability as an attorney in other matters, must notify the appropriate professional authority.
Therefore, because these attorneys are not dealing with individual clients and are, let’s face it, part of an agency, they may lack professional independence in dealing with litigation. Some of these attorneys may honestly believe that following Agency protocol protects them from Professional Responsibility issues. Nothing could be further from the truth. A simple, justified reminder is not a threat.
Morris E Fischer
