2. officials, the innocent as well as the guilty, to the burden of a trial and to Source of Present Problems: Changes In The Immunity Defense. Until recently, there was rarely, if ever, any need for Department of Justice attorneys representing individuals in damage actions to involve themselves to any great extent in the facts of a particular case. The defense of absolute immunity, based upon a showing that the defendant official was acting within the outer perimeter of his duties, could be asserted without such involvement. The law of absolute immunity, however, which had earlier offered a general insulation to government personnel from individual adverse monetary judgments, has recently been moving toward a less protective stance, thereby undercutting the availability of such protection. As a corollary to the erosion of the defense, Department attorneys are now being required, with increasing frequency, to involve themselves more deeply with the factual aspects of a case, which may occasionally involve allegations of criminal activity. As a result, Department attorneys have been assuming a representational role more akin to that traditionally played by private counsel in the sense that it is the interests of the individually-sued government employees which have become a major focus of the litigation for the Department attorney. The defense of such actions by Department attorneys, particularly those which may involve possible criminal activity, are very likely to collide with the broader mandates of the Department in the areas of law enforcement, criminal prosecution, and the general vindication of government lawmaking, its implementation, and application. 3. The Current Status Of Representational Problems. The Department of Justice has traditionally represented federal officials and employees in a wide range of litigation, examples of which include (1) suits against members of the 7 Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied, 339 U.S. 949 (cited with approval in Barr, supra at 571-572). Legislative Branch (McSurely v. McClellan, 521 F.2d 1024 (C.A.D.C. 1975)); (2) suits against federal judges (Garfield v. Palmieri, 297 F.2d 526 (C.A. 2 1962)); (3) issuance of a press release (Barr v. Matteo, supra); (4) institution of administrative proceedings (Economou v. U.S. Dept. of Agriculture, 535 F.2d 688 (C.A. 2 1976), cert. granted, U.S. L.W. ; (5) medical treatment by a military doctor (Henderson v. Bluemink, 511 F.2d 399 (C.A.D.C. 1974); (6) sending notices of tax levies (David v. Cohen, 407 F.2d 1268 (CADC 1969)); (7) the sending of a letter expressing views as to a company's capabilities (Expeditions Unlimited v. Smithsonian Institution, et al., F.2d (CADC June 28, 1976) pending on rehearing en banc; and (8) activities of federal law enforcement and intelligence collection agencies brought against government employees (See Appendix A for examples). A. Existing Conflicts. As a result of the unprecedented disclosures in recent years of apparent misconduct by government officials, and the aforementioned decrease in the availability of absolute immunity, there has been a burgeoning growth of personal damage actions against current and former federal employees. As might be expected, this litigation has brought the Department a steadily increasing number of requests from the sued employees for direct Departmental representation in both their official and individual capacities. */ At present, approximately nine cases handled by the General Litigation Section raise serious representational problems due to two recurrent situations: (1) material conflicts or inconsistencies in the recollections of pertinent facts among individually sued government defendants (hereinafter referred to as "inter-defendant conflicts"), and (2) allegations of conduct on the part of the individual government defendants which are also the subject of pending federal criminal investigations being undertaken by the Civil Rights and the Criminal Divisions.** The Department has always represented all government employees sued in their official capacities as mandated by its statutory responsibility under 28 U.S.C. § 516. **/ The pertinent criminal investigations include the CIA 21-221 O-78-9 -6 B. Approaches Used To Resolve Conflicts. It is the consensus of the Committee, and indeed the predicate upon which all prior private representational arrangements have been approved, that where the Department would represent federal employees but for ethical considerations unrelated to the culpability of the employee, the interests of the United States in the morale and performance of its employees and their reliance on the availability of government representation, based both on statute and longstanding tradition, creates an obligation and a responsibility on the Department to serve those interests by providing an alternate form of representation. In an effort to serve, as completely. as possible, all of the competing interests of United States brought to the fore by employee requests for legal assistance on the one hand, and the need to enforce its laws on the other, three representational schemes have been followed to date. The first and preferred approach involves the retention of private counsel on a "no strings attached" basis in order to obviate the ethical problems presented by either inter-defendant conflicts, or pending criminal investigations involving subject matter related to the civil litigation. Between late 1975 and mid 1976, the Department retained approximately 30 attorneys, and has to date expended. in excess of $800,000 for their services.*/ It has been suggested that retaining private counsel at public expense is an inappropriate means of resolving existing conflicts for the reason that paying others to do what the Department has decided it is unable to do directly, is improper. The Committee strongly disagrees with this reservation not only because it would lead in many cases to the complete termination of any form of representation, but more importantly, for the reason that private counsel are retained in the first instance to protect an interest of the United States, employee morale, which could not otherwise be preserved. 7 While 30 attorneys were retained in name, no limitations were placed on the number of co-counsel in their firms that could assist in the representation. As a result, the number of actual attorneys billing the Department, through the 30 retained counsel, far exceeds the number 30. Thus, it would be more accurate to view the retention commitments of the Department as involving 30 law firms plus several additional firms serving as local counsel to the retained firms in those instances where the retained firms do not have offices in the district of the litigation. The second approach, utilized to avoid conflicting interests between the government and its employees, or between defendant employees themselves, is to tender representation by Department of Justice attorneys to individual defendants on the understanding that the representation would be limited to advancing only threshold (e.g., jurisdictional) defenses not requiring the development of facts. See, e.g., the Civil Division's litigation in Halkin v. Helms (described in Appendix A). The third approach, which is actually an extension of the second, entails direct departmental representation for the purpose of advancing not only threshold defenses, but also fact-oriented defenses not requiring the assertion of legality (e.g., offering to argue good faith qualified immunity, while simultaneously refusing to argue the legality of the underlying conduct). II. PROBLEMS AND CONSIDERATIONS IN PROVIDING REPRESENTATION Whether representation is provided directly by Department attorneys or through retained counsel, a variety of representational problems have manifested themselves over the past year as a result of (1) pending or recently terminated criminal investigations, (2) the ABA Code of Professional Responsibility, and (3) budgetary constraints. The need to resolve these problems has recently been heightened by the following developments: The Attorney General's January 14, 1977 report on mail opening, which declined prosecution; (2) The Attorney General's recently published guidelines on representation (42 Fed. Reg. 5695-96, January 31, 1977); (Appendix B); (3) The advancing posture of certain litigation which 1 See exhibit 61 at p. 951. 8 (4) The unexpectedly high cost of providing private An analysis of each problem area follows: 1. Problems Caused By the Department's Aside from the obvious conflicts and ethical problems inherent in one division of the Department attempting to pursue a zealous civil defense and uphold the confidentiality of its attorney-client communications concerning conduct which is the subject of another division's criminal inquiry (an area which will be addressed in the next section), an equally difficult problem engendered by pending and completed criminal investigations involves the determination of whether the interests of the United States are best served by providing representation to a government employee in light of his conduct as revealed by the criminal investigation. The problem arises from the fact that the sine qua non of the Department's decision to provide representation is its determination that a particular defendant's challenged activities "reasonably appear to have been performed within the scope of his employment, and . providing representation is in the interest of the United States," 28 C.F.R. $50.15(a)(2), (hereinafter referred to as "scope of authority standard"). This standard, however, is at best a protean one depending to a large extent on the factual dimensions of each case. In the mail opening litigation, for example, there is little doubt that the individuals for whom the Department is providing private representation were acting pursuant to a government program run by an agency which had, at least in its employees' eyes, the apparent authority to conduct the intelligence collection operation at issue. Accordingly, the scope of authority standard does not appear in these cases to justify withdrawing or refusing to tender representation to any defendant, notwithstanding this Division's decision to refrain from taking a position on the legality of the 20 year mail opening program on behalf of the United States in suits brought under the Federal Tort Claims Act. A more difficult situation is presented by those suits involving FBI break-ins, in view of the. "street crime" nature of the conduct, and the apparent lack, in some cases, of high level FBI authorization. Close consultation with |