capacities has been one of the most serious faced by the Justice Department in recent years. While we believe that it is necessary for government employees to work without the fear that they may ultimately bear the costs litigation and attorneys fees on their own, we have not been able to secure adequate funding from the Congress for these purposes. Thus, in a sense, we are asking you to undertake the representation of Mr. Doe in the spirit of the public interest, and to meet financial conditions in this representation that we must candidly admit are not ideal.
If you agree to furnish the representation, it will be necessary to have your retention by the Department subject to the following agreement and understandings between the Department, and yourself and Mr. Doe:
(1) The Department of Justice agrees to pay
you or other members of your firm for
those legal services reasonably necessitated
by the defense of Mr. Doe's interests in Berlin
Democratic Club v. Rumsfeld, supra. In this
regard, the Department will not honor bills
for services not directly related to the defense
of issues presented for litigation. Examples
of services for which the Department will not
pay include, but are not limited to, adminis-
trative claims against the United States on
behalf of your client for any money judgment
that may be entered against him in this suit, or
lobbying efforts on your part to secure the
passage of a private legislation to
reimburse Mr. Doe for adverse monetary awards
suffered in this action. You are, of course,
to undertake the foregoing actions, but any
charges for such services must be negotiated
between yourself and Mr. Doe and may not be passed
on to the Department. In order to avoid any
confusion over whether a particular service may be
billed to the Department under this retention
agreement, it is suggested you consult with
Deputy Assistant Attorney General of the
Civil Division before undertaking the
service;
(2) The Department of Justice agrees to pay you for an amount of time not exceeding 120 billable hours per month for services performed in the defense of Mr. Doe in Berlin Democratic Club v. Rumsfeld, supra. You may utilize the services of any number of attorneys, para-legals, or legal assistants in your firm in order to defend Mr. Doe so long as the aggregate number of billable hours in any given month does not exceed 120 hours. Mr. Doe is free, however, to retain you, or members of your firm, to perform work in excess of 120 hours per month so long as the excess charge is not billed to the Department of Justice. In this regard, the Department will consider paying for services in excess of 120 hours per month if the press of litigation (e.g., trial preparation) clearly necessitates the expenditure of more attorney time. Requests for additional compensation should be made to the Department in advance of such expenditures;
(3) As counsel for Mr. Doe in Berlin Democratic
Club v. Rumsfeld, supra, the Department agrees to
pay you up to $60 per lawyer hour, plus expenses
(e.g., postage, telephone tolls, secretarial over-
time, photocopying, travel, transcripts, printing,
etc.). Your charge for any services should
not, of course, exceed your ordinary and
customary charge for such service. This fee
is based on the consideration that you
have been practicing law in excess of five
years. In the event you utilize the services
of a lawyer in your firm who has been
practicing law for less than five years, or the
services of a para-legal or legal assistant,
the Department agrees to pay the following
fees:
(c) Para-legal or law clerk:
$15 per hour
(4) Bills for your services performed on >
behalf of Mr. Doe in this law suit
should be submitted to me on a monthly
basis stating the date of each service
performed, the name of the attorney or
legal assistant performing the service,
a brief description of the service,
and the time in tenths of an hour
required to perform the service. With
regard to describing the nature of the
service performed, the actual itemi-
zation should reflect, whenever possible,
the specific type of litigation activity
involved, e.g. legal research on motion
for summary judgment" as opposed to
simply "legal research."
On a periodic basis you may be requested
to submit copies of your time sheets to the
Government Accounting Office (GAO) for purposes
of auditing the accuracy of your corresponding
monthly bills, copies of which will be forwarded
directly to GAO by the Department of Justice.
Your and Mr. Doe should be aware that by entering into this agreement, the Department of Justice in no way assumes any responsibility on the part of the United States Government for any liability that may be assessed against Mr. Doe in this case.
Should you have any questions concerning the terms of this agreement, please contact Mr. Irving Jaffe at (202) 739-3306. Otherwise, if you find the agreement's provisions acceptable, please advise me at your earliest convenience. Your retention will become effective upon receipt of such acceptance.
BARBARA ALLEN BABCOCK Assistant Attorney General
Exhibit 10: Report of David J. Anderson of March 21, 1977.1
Attached is the Report on representational matters
prepared by the General Litigation Section committee chaired
by Dennis Linder.
We view this Report essentially as an internal talking
paper, designed to stimulate discussion within the Civil
Division of the various options and recommendations set forth.
Obviously, some of the matters covered are more pressing than
others. Nevertheless, we think that any alternatives that
you might want to seriously consider should be the subject of
further discussion and debate before any final action is
undertaken.
As an initial step, I would recommend that this paper be
circulated to the Civil Division Sections which, along with
General Litigation, represent federal employees individually.
These would include Torts, Appellate, Economic Litigation,
and Information and Privacy. In the interim, we recommend
that the status quo be preserved both as to retained counsel
and those cases in which the Department of Justice is
representing federal employees.
1 Received by the subcommittee as part of tab A of Babcock letter of October 4, 1977
[Attachment to Anderson memo of March 21, 1977 (exhibit 10).]
UNITED STATES DEPARTMENT OF JUSTICE
Address Reply to the
Division Ladicated
and Refer to Initials and Number
REPORT TO THE ASSISTANT ATTORNEY GENERAL
ON REPRESENTATION OF GOVERNMENT
EMPLOYEES IN CIVIL LITIGATION
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