Friday, June 2, 2023

Playing Professional Responsibility Hardball With Federal Agency Lawyers – Part Two

A very common breach of professional responsibility that many federal government agency attorneys routinely commit is failure to pass a settlement demand from the employee’s attorney to the agency. Many of these agency attorneys mistakenly believe that they are entitled to submit each settlement demand when the agency’s settlement officer informs the agency attorney that the federal agency has no financial authority to settle the employment case. Professionals are absolved of responsibility, which is the standard requirement of professional responsibility in many jurisdictions.

In fact, there may even be a federal agency protocol that these attorneys have to follow with regard to forwarding or specifically not forwarding certain motions to plaintiffs that are above a certain amount. However, if that policy or protocol conflicts with the requirements of that lawyer’s professional responsibility, that lawyer cannot withdraw from that duty. Lawyers are called out many times by their clients for ignoring professional responsibility rules. A client’s consent does not absolve that lawyer of those duties. I’ve heard from other attorneys that a typical defense attorney violates this rule at least half the time.

Equally fascinating is the response of the federal agency’s counsel to the plaintiff’s counsel reminding the public prosecutor of his responsibility to follow these rules. This is almost immediately denounced as a “threat” and with it comes the allegation from the agency’s counsel that the plaintiffs’ counsel themselves have breached a professional responsibility through this reminder.

This reaction is strictly emotional and has absolutely no basis in reality. It is a product of the environment of the agency bubble in which the lawyer lives. Any force outside that bubble is an alien intrusion of which they are little familiar.

The actual rules are pretty much the same 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 – Maintenance of professional integrity.

RULES OF BUSINESS CONDUCT: Rule 8.4 — Misconduct

It is professional misconduct for a lawyer to:

(a) violates or attempts to violate the rules of professional conduct, knowingly aiding or inducing another to do so, or doing so through the actions of another;

(b) the commission of a criminal act which prejudicially affects the attorney’s integrity, credibility, or fitness as an attorney in other respects;

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

(d) engaging in conduct which seriously interferes with the administration of justice;

(e) impersonating or implying the ability to improperly influence any government agency or official;

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

(g) Seeking or threatening to seek criminal charges or disciplinary charges merely to obtain advantage in a civil case.

In their swift response, these agency attorneys believe that 8.4(g) has been violated. However, a plaintiff’s attorney may have violated 8.4(g) only if that attorney actually engaged the professional responsibility reminder to solicit litigation. For example, if the plaintiff’s attorney told the agency’s attorney that he was going to report a breach of professional responsibility unless the agency paid x amount to his client or filed a summary judgment motion.

The motivation behind plaintiffs’ attorneys sending these reminders is twofold. One is to ensure that no client is harmed by failure of an advocate to comply with these rules. After all, this particular rule falls under the category of maintaining the integrity of the profession. Two, it is to ascertain whether a particular advocate is prepared to submit his conduct to the advocate rules of professional responsibility. If that person is not, then in many jurisdictions the plaintiff’s attorney is It is possible a responsibility To report that lawyer to the Bar of his State.

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

(a) an advocate who becomes aware that another advocate has committed a breach of the rules of professional conduct which raises substantial question as to that advocate’s integrity, trustworthiness or fitness as an advocate in other matters, to the appropriate professional authority Will inform

Therefore, because these attorneys do not deal with individual clients and, let’s face it, are part of an agency, they may lack professional independence in handling litigation. Many 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, well-meaning reminder is not a threat.

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