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APPENDIX OF EXHIBITS

Exhibit 1: Justice Department Statement of Policy Regarding Limitation for Representation of Federal Employees, Attorney General's Order 683-77 (January 19, 1977)

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PART 50 STATEMENTS OF POLICY

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tions taken would oppose positions maintained by the United States itself.

By virtue of the authority invested in me by 28 U.S.C. 509, Part 50 of Chapter I of Title 28 of the Code of Federal Regulations is hereby amended by addition of the following §§ 50.15 and 50.16: § 50.15

Representation of Federal Employees by Department of Justice Attorneys or by Private Counsel Fur nished by the Department in State Criminal Proceedings and in Civil Proceedings and Congressional Proceedings in Which Federal Employees Are Sued or Subpoenaed in Their Individual Capacities.

(a) Under the procedures set forth be

Limitation for Representation of Federal. low, a federal employee (herein defined

Employees

AGENCY: Department of Justice.
ACTION: Statement of policy.

EFFECTIVE DATE: January 31, 1977. SUMMARY: The attached statement of policy describes the limits within which the Department may provide for representation of Federal employees with respect to employment-related matters in which they are involved in their individual capacity. Representation in these matters is limited to state criminal proceedings, and civil and Congressional proceedings.

SUPPLEMENTARY INFORMATION: It may be helpful to set forth briefly the manner in which the representation authority set forth in the statement of policy is currently being applied. Bearing in mind that extraordinary situations may justify going to the outer limits of the guidelines, the present practice of the Department is as follows:

1. The Department will represent an employee who is sued or subpoenaed in his individual capacity, if the acts which constitute the subject of the proceeding reasonably appear to have been performed within the scope of his employment and if he is not the target of a Federal criminal investigation with respect to such actions.

2. Where, although the employee reasonably appears to have acted within the scope of his employment, a pending investigation has disclosed some evidence of his specific participation in a crime, the Department will pay for representation by a private attorney.

3. The Department will likewise pay for representation by a private attorney when several employees, otherwise entitled to representation by the Department, have sufficiently conflicting interests which in the Department's view preclude representation of each of them by the Department.

4. The Department will not represent, or pay for the representation of, any employee, if, with respect to the acts that are the subject of the representation. an indictment or information has been filed against him by the United States or a pending investigation of the Department indicates that he committed a criminal offense.

5. The Department will not provide or pay for representation where the posi

to include former employees) may be represented by Justice Department attorneys in state criminal proceedings and in civil and Congressional proceedings in which he is sued or subpoenaed in his individual capacities, not covered by 15.1 of this chapter.

(1) When an employee believes he is entitled to representation by the Department of Justice in a proceeding, he must submit a request for that representation, together with all process and pleadings served upon him, to his immediate superhead of his department or agency, forthvisor or whomever is designated by the with. The employee's employing federal agency shall submit to the Civil Division in a timely manner a statement, with all supporting data, as to whether the employee was acting within the scope of his employment, together with its recommendation as to whether representation should be provided. The communication between the employee and any individual acting as an attorney at his employing agency, with regard to the request for representation, shall be treated as subject to the attorney-client privilege. In emergency situations the Civil Division may initiate conditional representation after communication by telephone with the employing agency. In such cases, appropriate written data must be subsequently provided.

(2) Upon receipt of the agency's notì-” Division will determine whether the emfication of request for counsel, the Civil ployee's actions reasonably appear to have been performed within the scope of his employment, and whether providing United States. If a negative determinarepresentation is in the interest of the tion is made, Civil Division will inform representation will be provided. the agency and/or the employee that no

(3) Where there appears to exist the possibility of a federal criminal investigation or indictment relating to the same subject matter for which repersentation is sought, the Civil Division will contact a designated official in, the Criminal Division for a determination whether the employee is either a target of a federal criminal investigation or a defendant in

a federal crminal case. An employee is the target of an investigation if, in addition to being circumstantially implicated by having the appropriate responsibilities at the appropriate time, there is some

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RULES AND REGULATIONS

client privilege. All legal arguments appropriate to the employee's case will be made unless they conflict with govern

evidence of his specific participation in
a crime. In appropriate instances, Civil
Rights and Tax Divisions and any other
prosecutive authority within the Departmental positions. Where adequate rep-
ment should be contacted for a similar
determination.

(4) If the Criminal, Civil Rights or Tax Division or other prosecutive authority within the Department (hereinafter "prosecuting division") indicates that the employee is not the target of a criminal investigation concerning the act or acts for which he seeks representation, then representation may be provided. Similarly, if the prosecuting division indicates that there is an ongoing investigation, but into a matter other than that for which representation has been requested, then representation may be provided.

(5) If the prosecuting division indicates that the employee is the target of a criminal investigation concerning the act or acts for which he seeks representation, Civil Division will inform the employee that no representation by Justice Department attorneys will be provided. If the prosecuting division, indicates that the employee is a target of an investigation concerning the act or acts for which he seeks representation, but no decision to seek an indictment or issue an information has been made, a private attorney may be provided to the employee at federal expense under the procedures of $ 50.16.

(6) If conflicts exist between the legal or factual positions of various employees in the same case which make it inappropriate for a single attorney to represent them all, the employees may be separated into as many groups as is necessary to resolve the conflict problem and each group may be provided with separate representation. Some situations may make it advisable that private representation be provided to all conflicting groups and that Justice Department attorneys be withheld so as not to prejudice particular defendants. In such situations. the procedures of $ 50.16 will apply.

resentation requires the making of a legal argument which conflicts with a governmental position, the Department attorney shall so advise the employee.

(b) Representation by Department of Justice attorneys is not available to a federal employee whenever:

(1) The representation requested is in connection with a federal criminal proceeding in which the employee is a defendant;

(2) The employee is a target of a federal criminal investigation on the same subject matter;

(3) The act or acts with regard to which the employee desires representation do not reasonably appear to have been performed within the scope of his employment with the federal government; or

(4) It is otherwise determined by the Department that it is not in the interest of the United States to represent the employee.

$ 50.16 Representation of Federal Em ployees by Private Counsel at Federal Expense.

(a) Representation by private counsel at federal expense may be provided to a federal employee only in the instances described in § 50.15 (a) (5) and (a) (6).

(b) Where private counsel is provided, the following procedures will apply:

(1) The Department of Justice must approve in advance any private counsel to be retained under this section. Where national security interests may be involved, the Department of Justice will consult with the employing agency.

(2) Federal payments to private counsel for an employee will cease if the Department of Justice (1) decides to seek an indictment of or to issue an information against that employee on a federal criminal charge relating to the act or acts concerning which representation was undertaken; (ii) determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment; (ii) resolves. the conflict described in § 50.15(a) (6) and tenders representation by Depart

(7) Once undertaken, representation under this subsection will continue until either all appropriate proceedings, including applicable appellate procedures, have ended, or until any of the foregoing bases for declining or withdrawing from representation is found to exist. Including without limitation the basis that rep-ment of Justice attorneys; (iv) deterresentation is not in the interest of the United States. In any of the latter events, the representing Department attorney on the case will seek to withdraw but will ensure to the maximum extent possible that the employee is not prejudiced thereby.

(8) Justice Department attorneys who represent employees under this section undertake a full and traditional attorney-client relationship with the employees with respect to the attorney-client privilege. If representation is discontinued for any reason, any incriminating information gained by the attorney in the course of representing the employee continues to be subject to the attorney

mines that representation is not in the interest of the United States; (v) terminates the retainer with the concurrence of the employee-client, for any reason. (c) In any case in which the employee is not represented by a Department of Justice attorney, the Department of Justice may seek leave to intervene or appear as amicus curiae on behalf of the United States to assure adequate consideration of issues of governmental

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FEDERAL REGISTER, VOL 42, NO. 20-MONDAY, JANUARY 31, 1977

2

Exhibit 2: Revised Version of Attorney General's Order 683–77 (January 19, 1977) Presently in Effecti

Title 28--Judicial Administration

CHAPTER 1--DEPARTMENT OF JUSTICE

[Order No. 683-77]

PART 50--STATEMENTS OF POLICY

Limitation for Representation of Federal
Employees

AGENCY: Department of Justice.

ACTION: Statement of policy.

EFFECTIVE DATE: January 31, 1977.

SUMMARY:

The attached statement describes the policy of the Department on representation of Federal employees when they are sued individually for actions performed within the scope of their employment. Representation in these matters is limited to state criminal proceedings, and civil and Congressional proceedings.

Representation will not be

provided in connection with federal criminal proceedings.

By virtue of the authority vested in me by 28 U.S.C. 509, Part 50 of Chapter I of Title 28 of the Code of Federal Regulations is hereby amended by amending $S50.15 and 50.16 thereof to read as follows:

$50.15 Representation of Federal Employees by Department

of Justice Attorneys or by Private Counsel Furnished by
the Department in State Criminal Proceedings and in Civil
Proceedings and Congressional Proceedings in Which Federal
Employees Are Sued or Subpoenaed in Their Individual
Capacities.

(a) Under the procedures set forth below, a federal employee (herein defined to include former employees) may be represented by Justice Department attorneys in state criminal proceedings and in civil and Congressional proceedings in which he is sued or subpoenaed in his individual capacity,

not covered by S 15.1 of this chapter.

1 Received at June 15. 1977, meeting between Justice Department and committee representatives. See Introduction at p. X.

(1) When an employee believes he is entitled to representation by the Department of Justice in a proceeding, he must submit a written request for that representation, together with all process and pleadings served upon him, to his immediate supervisor or whomever is designated by the head of his department or agency, forthwith. The employee's employing federal agency shall submit to the Civil Division, the Civil Rights Division, the Criminal Division, the Lands and Natural Resources Division or the Tax Division, (hereinafter referred to as "the litigating division"), as appropriate, in a timely manner a statement, with all available supporting data, as to whether the employee was acting within the scope of his employment, together with its recommendation as to whether representation should be provided. between the employee and any individual acting as an attorney at his employing agency, with regard to the request for representation, shall be treated as subject to the attorneyclient privilege. In emergency situations the litigating division may initiate conditional representation after communication by telephone with the employing agency. In such cases, appropriate written data must be subsequently provided.

The communication

(2) Upon receipt of the agency's notification of request for counsel, the litigating division will determine whether the employee's actions reasonably appear to have been performed within the scope of his employment and whether providing representation is in the interest of the United States. In circumstances where considerations of professional ethics prohibit direct review of the facts by attorneys of the litigating division (e.g. because of the possible existence of inter-defendant conflicts) the litigating division will

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delegate the fact-finding aspects of this function to other components of the Department or to a private attorney at

federal expense.

(3) Attorneys employed by any component of the Department of Justice who either represent employees under this section or who participate in any process utilized for the purpose of determining whether the Department should provide representation to a federal employee, undertake a full and traditional attorney-client relationship with the employee including application of the attorney-client privilege. Any adverse information gained by Department attorney during the course of such attorney-client relationship shall not be disclosed to anyone, either inside or outside the Depart

ment, other than attorneys (from the litigating division)

responsible for the defense of the subject action, unless such disclosure is authorized by the employee. Adverse information shall continue to be fully protected whether or not representation is provided, and even though representation may be discontinued.

(4) Where there appears to exist the possibility of a federal criminal investigation or indictment relating to the same subject matter for which representation is sought, the litigating division will contact a designated official in the Criminal, Civil Rights or Tax Division or other prosecutive authority within the Department (hereinafter "prosecuting division") to determine whether the employee is either a target of a federal criminal investigation or a defendant in a federal criminal case. An employee is the target of an investigation if, in addition to being circumstantially implicated by having the appropriate responsibilities at the appropriate time, an ongoing investigation indicates that there is some evidence of his specific participation in a crime.

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