REPORT TO THE ASSISTANT ATTORNEY GENERAL

ON REPRESENTATION OF GOVERNMENT

EMPLOYEES IN CIVIL LITIGATION

This report is addressed to the problems presently facing the Department of Justice in connection with requests by current and former federal employees for Justice Department representation in civil proceedings at the state and federal levels. The areas examined by the memorandum include:

(1) The effect that pending federal criminal investigations
and inter-defendant conflicts will have on extending
any form of government-financed representation to
civil defendants who are subjects of the criminal
investigations;

(2)

(3)

The types of representation approaches that may be
taken to avoid conflict of interest problems
resulting from both criminal investigations
concerning the subject matter of the civil
litigation, and conflicts between multiple
defendants requesting representation;

Possible methods of reducing the cost of providing
private counsel to government employees;

(4) Procedures for selecting private counsel when a
prospective client expresses no preference;

(5) Action to be taken in the event Congress disallows
pending requests for private counsel funding.

Recommendations resulting from an examination of the foregoing areas include:

(1) Solicitation of advisory opinions from the ABA on
the ethical difficulties, if any, in continuing to pursue
several forms of direct Departmental representation
that do not involve retaining private counsel;

(2)

(3)

Implementation of one or more limitations upon
retained counsel to control and, hopefully, reduce
the amount of private counsel bills;

The introduction of legislation amending the
Federal Tort Claims Act to permit substitution of
the United States as a party-defendant;

2

(4)

(5)

Alterations in the procedures for selecting pri-
vate counsel, including advertising and the
establishment of criteria and a selection
committee;

A re-drafting of the Attorney General's January
31, 1977 representation guidelines to specifically
include additional standards;

(6) Use of initial client interviews where the
potential for conflicts of interest arise.

This study was prepared by the Representation Committee of the General Litigation Section, Civil Division, comprising Dennis G. Linder, Assistant Chief and committee chairman, John T. Boese, Robert J. Franzinger, and R. John Seibert, in consultation with David J. Anderson, Chief, General Litigation Section, Barbara B. O'Malley, Assistant Chief, Jeffrey Axelrad, Chief, Information and Privacy Section, and J. Roger. Edgar, Chief, Frauds Section.

I.

INTRODUCTION

1. The Representation Function Of The
Department Of Justice.

From the Department's earliest days, it has been consistently recognized that for both equitable and prudential reasons, the Department has an obligation to represent federal employees sued for conduct performed in the lawful exercise of their duties. Over a century ago, Attorney General Jeremiah Black declared:

When an officer of the United States is sued for doing what he was required to do by law, or by the special orders of the Government, he ought to be defended by the Government. This is required by the plain principles of justice as well as by sound policy. No man of common prudence would enter the public service if he knew that the performance of his duty would render him liable to be plagued to death with lawsuits, which he must carry on at his own expense. For this reason, it has been the uniform practice of the Federal Government, ever since its foundation, to take upon itself the defence of its officers who are sued or prosecuted for executing its laws. [9 OAG 51 (1857)].

3

The statutory basis for the Department's authority to represent the interests of the Government's employees, and thus those of the Government itself, derives from the Judiciary Act of 1789 which established the Office of Attorney General and provided for the creation of United States Attorneys who would be empowered to litigate "civil actions in which the United States shall be concerned," 1 Stat. 92, Ch. 20 $35 (1789). Today, this same authority may be found in Section 516 of Title 28, United States Code, which provides that the conduct of litigation in which the United States "is interested", is "reserved to officers of the Department of Justice, under the direction of the Attorney General."

Recognition of the Department's moral and statutory obligation to represent federal employees in litigation challenging the propriety of their authorized conduct has been noted by other departments and branches of the Government. Early in this century, the Assistant Comptroller to the Secretary of War stated:

That the Government should sustain its officers and
employees in the discharge of their duties and defend
them when attacked in the courts for alleged injuries
growing out of the performance of those duties has
been repeatedly affirmed. (Citations omitted.) 15
Comp. Dec. 621 (1909).

More recently in Barr v. Matteo, 360 U.S. 564, 591 (1959), Mr. Justice Brennan, arguing in dissent for a narrowing of the immunity defense available to government employees sued for money damages, pointed out that "[p]ursuant to an Act of Congress, the inconvenience to the government officials made defendants in these suits has been alleviated through the participation of the Department of Justice." Indeed, the -same rationale for providing Departmental representation to Government employees, i.e., sustaining employee morale and promoting the unhampered and vigorous exercise of job responsibilities, has been used by the courts to support its rule of official immunity, versions of which serve to protect from civil liability members of the Legislative, Judicial, and Executive Branches. As articulated by Judge Learned Hand,

it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all