Legal Law

Playing professional liability hardball with federal agency attorneys

Lawyers for government agencies live in a bubble. They are protected by the same system of corruption, nepotism, waste, fraud and abuse that causes so many federal employees so much hardship. As long as these lawyers toe the party line, their jobs are secure; they get good pensions; and they don’t have to worry about much.

While not all government lawyers do this, the temptation to do so is great. Shadowing the agency director, special agent in charge, or some other high-ranking bureaucrat is generally a big key to most federal agency positions, so that of a lawyer should be no different.

However, there is a higher authority than that bureaucrat. He sends shock waves through all the lawyers at the Federal Agency, and in the vast majority of cases, these people are shocked by a new system of authority, something completely foreign: the Bar Association. Even Bill Clinton lost his Arkansas bar license because the people in the Arkansas bar didn’t care that he only perjured about sex.

The vast majority of complaints in bars come from disgruntled customers who did not get a good outcome in the case, for which they blame their lawyer. The average lawyer in private practice will get a few of these in his career. For this reason, private practice lawyers after several years in practice have well-developed defensive systems to hedge against these allegations.

The agency’s lawyers do not deal with this system and have no idea about it. As such, they are generally unaware of professional liability rules. The fear of suspension or debarment can be so great that the Agency attorney simply cannot stomach a threat to report to the bar association. There is very little reward for the Agency lawyer for going through one of these crowds of bars if it can be avoided.

Consider these examples that the Agency’s lawyers are clueless about, but fully support their bureaucratic bosses:

1. A federal employee has an existing whistleblower claim. To tighten the screws, the Agency says in mediation that if the employee refuses to accept its low offer, the Agency will fire the employee for reasons it already knows are untrue. It is unethical for lawyers to defend claims that have no merit. Since the federal employee will be filing another Merit Systems Protection Board claim against his agency, the agency’s attorney will be litigating a claim: a frivolous, legal, factual claim because his bureaucratic boss ordered him to. The status bar of him, he doesn’t care about the bubble, that’s a violation.

2. A federal employee has an existing legal action for discrimination and is represented by an attorney. The Agency attorney executes an order from the bureaucrat boss to send the Proposed Recall letter directly to the employee, even though the employee is represented by an attorney. In most state bar associations, that is a violation because the attorney communicated directly with someone that attorney knew was represented. The agency’s attorney had a professional responsibility requirement to contact that person’s attorney and failed to do so. The status bar of him, he doesn’t care about the bubble, that’s a violation.

3. Someone in the US State Department orders a federal prosecutor not to release Hillary Clinton’s emails as part of a Freedom of Information Act lawsuit because they will make her look bad. The US attorney agrees. Later, the federal judge finds out that the federal prosecutor was more loyal to the Clintons than to the Rules of Professional Responsibility that a lawyer must follow. That lawyer should be preparing to become a lobbyist.

Here’s the bottom line: the bubble can’t protect bad guys from everything.

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