Each of you has requested an opinion from this committee concerning questions that arise out of employment as an attorney with a federal agency. As a result of the federal budget action called the “sequester,” the agency believes it must furlough (lay-off) employees and these furloughs may extend to each of you and for one of you to your spouse. Employees of the agency have various rights and options to challenge the furloughs. As a result, the agency needs legal counsel to implement the “sequester,” develop a furlough program and defend its actions. As a result, you are both concerned that a conflict exists and seek guidance from the Committee.
One of the requests for an opinion is as follows:
I am an active member of the Maryland Bar. I am hoping you will be able to help me submit my question to the appropriate party. Please note that I am not concerned with confidentiality and waive it, as I intend to share this advice with my colleagues and chain-of-command.
Currently, I work as a civilian personnel law attorney for the U.S. Department of the Navy. The Department of the Navy’s Office of General Counsel (OCG) has encouraged civilian personnel law lawyers who work for the U.S. Department of the Navy (DON) to consult with their respective State Bars to get individual answers as to conflict of interest issues arising out of an upcoming furlough.
The procedural path of the furloughs is summarized as follows: (1) Notice of proposed action; (2) opportunity for the employee to reply in person and to be represented by private counsel; (3) decision made by an official higher in rank than the Proposing Official; (4) right to appeal to U.S. Merit Systems Protection Board (MSPB) a quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management. As the furlough will be greater than 14 days, it is considered an adverse action which may be appealed to the MSPB. There is also the possibility of a grievance or EEOC complaint. Usually, OGC civilian lawyers would defend the DON with regard to appeals of the furloughs/adverse actions. However, in this instance, these same lawyers will also have been notified that they are being furloughed.
The request then poses a series of questions that we will answer in the order presented. Before doing so, we believe it important to note that, but for the McDade Act, 28 U.S.C. §530B, the Supremacy Clause might well preempt state ethics laws and rules, but since its adoption in 1998, federal attorneys are subject to state ethics rules in the states where they practice. In Maryland, these rules are the Rules of Professional Conduct for Lawyers (MRPC) as adopted by the Maryland Court of Appeals, Maryland’s highest court. We also must bear in mind and consider as we analyze these facts that the Rules as described in their Scope recognize that sometimes different standards apply to government lawyers. See: MRPC, Scope ¶ 18.
You have also forwarded to us opinions that attorneys for the agency have received from other states based on questions similar to those you pose and a document issued by the DON’s General Counsel that discusses a waiver of the conflict by the DON and the terms of the waiver. The DON’s General Counsel states that it had “pursued and have received a client waiver from the Secretary of the Navy,” and acknowledged that, “Model Rule of Professional Conduct 1.7 and many state codes permit voluntary, knowing waivers of a conflict of interest by the client when certain standards are met.” The DON’s General Counsel confirmed that:
[T]he Secretary of the Navy agreed to waive the potential conflict of interest for civilian attorneys who meet certain qualifications. The qualifications are:
- The attorney, notwithstanding the fact that he or she may be furloughed, reasonably believes that he or she will be able to provide competent and diligent representation to the DON;
- The representation is not prohibited by law;
- The representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same proceeding; and
- The attorney will cease providing legal representation and immediately notify his or her supervisor if, because of any material change in circumstances, he or she reasonably believes that he or she can no longer provide competent and diligent representation to the DON. A material change in circumstance would include the attorney challenging his or her furlough in an administrative or judicial forum.
Another request for an opinion describes a situation where you are a supervisor and not directly involved in advising the agency on the issue of the sequester or furloughs, but that your spouse’s duties include providing advice to the agency on the sequester and furloughs and defending it against other employees’ claims associated with the effect of furloughs on them. Neither you nor your spouse plan to appeal a furlough if imposed against you, but you, as a supervisor, may be required to decide which of your staff to furlough and you may be required to implement a furlough directive.
Based on the facts that you have described and the foregoing, we answer questions as presented to us:
Question #1:
If the lawyer does not file any type of action regarding the furlough, but is still herself subject to furlough, may the lawyer continue to represent the DON in other employees’ actions?
Answer:
Yes, provided the client gives consent in writing and you reasonably believe that you can continue to represent the client diligently and competently. Rule 1.7 provides:
- Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
- the representation of one client will be directly adverse to another client; or
- there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
- Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a client if:
- the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- the representation is not prohibited by law;
- the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
- each affected client gives informed consent, confirmed in writing.
Based on the foregoing, the Rules do not create a per se prohibition, but allow you to continue representing the client with its informed written consent provided you reasonably believe that you can provide diligent and competent representation to the client. You have provided a document signed by the General Counsel of the Navy that discusses the Department’s consent and the terms of that consent. Assuming you conform to the terms of that consent and you reasonably believe that you will be able to provide competent and diligent representation to the client you are not prohibited by the Rules of Professional Conduct from representing the DON. Conversely, if you do not reasonably believe you can represent the DON competently and diligently, you must decline representation.
Question #2:
In order to represent the DON, would the lawyer be required to waive his or her right to file an appeal, claim, or grievance?
Answer:
No. However, as you have a continuing duty to determine if you can continue to represent the client both competently and diligently, as circumstances change, you may be required to disqualify yourself should you no longer reasonably believe that you can represent the client competently and diligently. Thus, a lawyer employee must determine if the lawyer can continue to represent the employer competently and diligently if the lawyer is to continue in that employment. The Committee does not believe that a per se bar arises in circumstances where a lawyer employee uses a law or employer created benefit to settle a grievance against the employer client. See: Answer to #3. The Department’s waiver of the conflict terms also require that you disqualify yourself if circumstances change so that you no longer meet the qualifications of the consent and you must conform to the terms of that waiver.
Question #3:
If a lawyer exercises his or her right to file an appeal or some other action on his or her own behalf against the DON for being furloughed, may the lawyer continue to represent the DON in other employees’ furlough actions against the DON?
Answer:
The DON’s consent to the conflict specifically prohibits continued representation should you choose to file an appeal or some other action against the DON. As a more general matter, the Committee believes that you cannot reasonably believe that you can competently and diligently represent the DON in matters where your claims for relief or issues on appeal are the same as other employees against whose claims you would be defending the DON, thus there is a per se prohibition against the representation. But, if your claims and issues on appeal are different and you continue to believe you can competently and diligently represent the client, you are not barred from doing so, so long as the client knowingly consents in writing.
The pursuit of a grievance (the very nature of which means that the lawyer and the client are in conflict) raises the question of whether the lawyer can continue to represent the client at all. While the Committee believes that the lawyer must determine if the facts preclude continued diligent and competent representation, it also believes that in an employment environment where a lawyer’s employment finds protection under law or collective bargaining agreements that the Rules of Professional Conduct do not bar the lawyer from continuing employment with the client and representing the client simply because the lawyer exercises rights accorded that lawyer under the law or a collective bargaining agreement. To conclude otherwise renders meaningless the protections employees are entitled to under both law and collective bargaining and creates a scenario that those who crafted the Rules may not have fully explored.
Question #4:
If one lawyer in the office has a conflict, does that mean that all lawyers in the office are precluded from representing the DON on furlough matters?
Answer:
No. The conflict in this situation is personal and Rule 1.10(a) recognizes an exception to the imputed disqualification rule so long as the continued representation does not present a significant risk of materially limiting the representation of the client by the remaining lawyers:
a. While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
In addition, Rule 1.10 allows the client to waive the imputed disqualification by consenting to the continued representation on the same terms as discussed in our answer to Question 3 under Rule 1.7:
d. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
The general waiver that you forwarded to us serves the purpose of complying with this rule.
Question #5:
If a lawyer’s supervisor is furloughed and appeals, does the supervisor’s appeal create a conflict for the lawyer?
Answer:
The lawyer’s obligations are as described in the answer to Question 3 and flow from the requirements of Rule 1.7 regarding the risk that a representation will be limited by the attorney’s personal interest. In other words, so long as you reasonably believe that you can continue to represent the client diligently and competently and have the client’s informed consent, you are not prohibited from representing the client.
Question #6:
If one or more of a supervisor’s subordinate lawyers files an appeal and the supervisor does not file an appeal, do the subordinates’ appeals create a conflict for the supervisor?
Answer:
The supervisor, like the lawyers in the supervisor’s chain of command, must determine whether the facts at anytime create a conflict and if so, whether the client has given informed consent to the continued representation despite the conflict. In addition, the lawyer, in this case the supervisor, must also reasonably believe that, despite the conflict, the lawyer can diligently and competently represent the client.
Question #7:
May a lawyer, in pursuing his own appeal, cross-examine the person who made the decision to furlough the lawyer?
Answer:
If a lawyer is pursuing the lawyer’s own grievance, the lawyer is not barred from cross examining the person who made the decision to furlough the lawyer. However, in doing so and in preparing to do so, the lawyer, must determine if the lawyer reasonably believes that, despite the facts developed, the lawyer can competently and diligently continue to represent the DON.
Question #8:
May a lawyer, in pursuing his own appeal, use information previously gained in lawyer-only meetings at which Navy lawyers discussed the pitfalls and possible due process violations that might occur in the event of a mass furlough action?
Answer:
Under Rule 1.6(b)(5) a lawyer is authorized to use confidential information gained in the representation in a dispute between the lawyer and the client. To be certain that the client understands that a waiver of the conflict might lead to this result; the Committee believes that the client’s consent to the conflict must contain language recognizing this result and consent to it.
Question #9:
May a lawyer who has appealed to the MSPB still defend against EEOC complaints?
Answer:
Assuming the EEOC claims are different from the lawyer’s own claims, the lawyer can continue to represent the DON as described under the Answer to Question 3.
Question #10:
Does an attorney employed by a federal agency that is imposing furloughs on its employees have a conflict if the attorney’s spouse is furloughed?
Yes. In brief, the Committee believes that in addition to your personal conflict that your furlough raises, a conflict arises between you and your client if your spouse is furloughed. Nevertheless, the conflict is personal and can be addressed similarly to your personal conflict as we describe in our answer to Question 3. In other words, personal conflicts may be resolved under Rule 1.7 and imputed conflicts are resolved under Rule 1.10. Thus, if (a) neither you nor your spouse has a claim against the agency associated with furloughs, (b) the agency has given its informed consent to allow you to continue to represent it, and (c) you reasonably believe that you can competently and diligently continue to represent the client, you are not precluded from doing so. Nevertheless, your obligation under Rule 1.7 is a continuing one, so you must reevaluate whether your ability to represent the client is compromised as time goes by and as facts change. For example, if your spouse files an appeal or suit against the agency based on a decision to furlough him or her, even though you do not file an appeal or a suit, you could not continue to represent the client on matters involving the same issues and claims that your spouse is pursuing as it would not be reasonable to believe that you could do so competently and diligently under those circumstances.
Obviously, the sequester creates a very difficult situation for you and your colleagues, but not a situation that others have not experienced during the recent economic recession. During the recession, in greater numbers than probably ever before, lawyers in public and private practice have been furloughed, laid off, and discharged and law firms have gone bankrupt. Many attorneys have seen their incomes shrink. Yet, through these difficult times, attorneys have acted honorably and diligently in representing their clients often to their personal disadvantage and expense. The Committee recognizes that the questions you pose align well with your commitment to your client and your country. Robert J. DeSousa notably described lawyers in government service when discussing a distinct demarcation between the job satisfaction of private attorneys and government attorneys:
One oasis can be government service. For some, government service may, just simply, be a nine-to-five job, a steady paycheck, or stability. But for many, in my experience, government service is a noble calling, a vocation. This is why those surveys, which so often find that lawyers are very dissatisfied with their jobs, do not have the same results when the surveys are of government lawyers. For many in government service, working for the United States, the Commonwealth, a county, or a political subdivision remains a pursuit of justice.
Honor makes it unacceptable for a government attorney to abandon the high road.
Duty makes it untenable for a government attorney to use tricks or dishonest means to achieve victory in a case.
A government attorney does his job with pride when he aggressively, but fairly, litigates, and justice results when that litigation is decided, however it is decided.
Thus, a government attorney who proceeds with honor can take self-satisfaction from any case that is properly done.
Robert J. DeSousa, SYMPOSIUM: LEGAL ETHICS FOR GOVERNMENT LAWYERS: STRAIGHT TALK FOR TOUGH TIMES: OPENING REMARKS, 9 Widener J. Pub. L. 207 (2000).
In conclusion and more to the point, an attorney’s commitment to the client’s interests often overwhelms the lawyer’s self interest. The Rules of Professional Conduct protect the public and the client from those conflicts by challenging lawyers to review not only how they believe a conflict will affect their judgment, but to ensure the client does so as well, and requires that in some cases the lawyer step aside. In reaching our answers, we were aided by the very valuable information that you provided including opinions from our sister states which we believe reach essentially the same conclusions as do we.
We hope that we have answered your questions completely. But, should you have any additional questions, please do not hesitate to contact the Committee. Our opinions are available on line at www.msba.org.
REFERENCES:
Rule 1.6, 1.7, and 1.10 and Preamble, Scope ¶ 18
McDade Act, 28 U.S.C. §530B
Robert J. DeSousa, SYMPOSIUM: LEGAL ETHICS FOR GOVERNMENT LAWYERS: STRAIGHT TALK FOR TOUGH TIMES: OPENING REMARKS, 9 Widener J. Pub. L. 207 (2000).
ASSIGNED TO: Charles W. Thompson, Jr., Esquire
DATED ASSIGNED: April 24, 2013
DATE DISTRIBUTED: May 3, 2013, May 9, 2013, May 13, 2013 and May 16, 2013
,
Each of you has requested an opinion from this committee concerning questions that arise out of employment as an attorney with a federal agency. As a result of the federal budget action called the “sequester,” the agency believes it must furlough (lay-off) employees and these furloughs may extend to each of you and for one of you to your spouse. Employees of the agency have various rights and options to challenge the furloughs. As a result, the agency needs legal counsel to implement the “sequester,” develop a furlough program and defend its actions. As a result, you are both concerned that a conflict exists and seek guidance from the Committee.