Playing Professional Responsibility Hardball With Federal Agency Lawyers – Part Two

A very common professional responsibility violation that many federal government Agency lawyers commit routinely is the failure to pass along a settlement demand from the employee’s attorney to the agency. Many of these Agency lawyers mistakenly believe that when the Agency settlement official informed the Agency lawyer that the federal agency had no financial authority to settle an employment case, they are freed of the professional responsibility to present each and every settlement demand, which is the standard professional responsibility requirement in many jurisdictions.

In fact, there may even be a federal agency protocol that these lawyers have to follow with respect to forwarding or specifically not forwarding certain offers from plaintiffs that are above a certain amount of money. Nonetheless, if that policy or protocol conflicts with that attorney’s professional responsibility requirements, that attorney cannot shirk that duty. Lawyers are asked many times by their clients to ignore professional responsibility rules. A client’s consent to same does not free that lawyer from those duties. I have heard from other lawyers that a typical defense attorney violates this rule at least half the time.

Equally fascinating is the federal agency attorney’s reaction to a plaintiff’s attorney reminding the government lawyer of his or her responsibility to follow these rules. It is almost immediately censured as a “threat” and along with it comes the accusation from the agency attorney that the plaintiff’s lawyer has himself committed a professional responsibility violation 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 attorney lives. Any force outside of that bubble is a foreign intrusion to which they have little if any familiarity.

The actual rule is pretty similar in most jurisdictions. In Washington, DC, this rule is 8.4 (g) of the Rules of Professional Conduct. Most importantly, it’s 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 assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on 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 interferes with the administration of justice;

(e) State or imply an ability to influence improperly a government agency or official;

(f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

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

In their gut reaction, these agency lawyers assume that 8.4(g) has been violated. However, a Plaintiff’s lawyer will have committed an 8.4(g) violation only if that lawyer actually linked that professional responsibility reminder to a litigation demand. For example, if the Plaintiff’s lawyer told the agency lawyer that unless the agency paid his client x amount of money or didn’t file a summary judgment motion, he was going to report professional responsibility violations.

The motivations behind plaintiff lawyers who send these reminders are two-fold. One is to make sure that any client isn’t disadvantaged by an attorney failing to follow these rules. After all, this particular rule falls under the category of maintaining the profession’s integrity. Two, is to ascertain whether a particular attorney is willing to submit his or her conduct to the Lawyer Rules of Professional Responsibility. If that person isn’t, then in many jurisdictions, the Plaintiff’s attorney then may have an obligation to report that lawyer to his or her state’s bar.

D.C. 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 substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Hence, because these attorneys don’t deal with individual clients and are, let’s face it, part of the agency, they may lack the professional independence in handling the litigation. A number of these lawyers 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.