(b)

8.

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

(1)

(2)

(3)

(4)

the representation requested is in connection with a federal criminal proceeding in which the employee is a defendant;

the employee is a target of a federal criminal investigation on the same subject matter;

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

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

21-221 O 78-8

(a)

(b)

(c)

Representation by private counsel at federal expense may be provided to, a federal employee only in the instances described in §15.4(a) (5) and (a) (6).

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

(1)

(2)

The Department of Justice must approve
in advance any private counsel to be
retained under this regulation. Where
national security interests may be in-
volved, the Department of Justice will
consult with the employing agency.

Federal payments to private counsel for
an employee will cease if the Department
of Justice (i) decides to seek an indict-
ment 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; (iii) resolves the con-
flict described in §15.4 (a) (6) and tenders
representation by Department of Justice
attorneys; (iv) determines that representa-
tion is not in the interest of the United
States; (v) terminates the retainer with the
concurrence of the employee-client, for any

reason.

In any case in which the employee is not repre-
sented 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 concern.

Exhibit 8: Sample Department Letter Retaining Private Legal

Counsel.1

APPENDIX C

[DATE]

[INSIDE ADDRESS

Dear Mr.

This will confirm your retention by the Department of Justice to represent in one or more of the following cases: John Doe, et al. v. John McCone, et al., USDC N.D. Calif., Civil Action No. C-75-1211-CBR; Rodney Driver, et al. v. Richard Helms, et al., USDC D. R.I., Civil Action No. 75-0224; and Grove Press, Inc., et al. v. CIA, et al., USDC S.D. N.Y., Civil Action No. 75-3493. The fee agreed upon was $ per hour plus costs.. I wish to emphasize that. although the Department of Justice has assumed responsibility for your remuneration in the course of such representation, your responsibility is, of course, solely to your individual clients. Furthermore, should the current conflicts of interest which led to our decision to retain outside counsel be resolved in the future, there is the possibility that the Department will reevaluate its position on representation and may wish, at that time, to undertake the defense of your clients in this matter. In addition, should any of your clients be indicted or otherwise determined to be criminally culpable by the Criminal Division for any role he might have played in the mail opening program, we may reevaluate the propriety of our continuing to pay counsel for that person in these civil actions. You and your clients should, finally, 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 the individual defendants in these cases.

Attached is a letter to us from , Esq., the independent counsel retained by the Department to undertake the groupings of defendants. This letter provides you with the names of other attorneys retained by Justice and their clients. If you have any questions

1 Received by the subcommittee as part of tab A of Babcock letter of October 4, 1977 (exhibit 26).

2

about the groupings, or if you or your clients become aware of a potential conflict of interest at any time in the future, please contact who will continue to handle problems involving conflicts

Mr.

of interests in these three cases.

Sincerely,

REX E. LEE

Assistant Attorney General

Exhibit 9: Sample Department Letter Setting Fees of Private Legal Counsel.1

UNITED STATES DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530

Address Reply to the

Division Indicated

and Refer to Initials and Number

Dear

This is to confirm your retention by the Department of Justice to represent Mr. John Doe in Berlin Democratic Club, et al. v. Rumsfeld, et al., Civil Action No. 310-74 (D.D.C.). Mr. Doe has been advised by the Department that because of potential conflicts of interests between himself and other individually sued defendants in the suit [or, because of a pending federal criminal investigation focusing on his activities with respect to the subject matter of the lawsuit), the Department of Justice cannot provide direct Departmental representation, but will instead retain private counsel on his behalf. In this regard, Mr. Doe has requested that you be retained to represent his interests in the aforementioned litigation.

Although the Department of Justice has assumed responsibility for your remuneration in the course of representing Mr. Doe in this litigation to the extent enumerated in provisions (1)-(5) below, your responsibility is, of course, solely to your client, Mr. Doe. Should the conflict of interest problem which led to our decision to retain you be resolved in the future, the Department reserves the right to reevaluate its position on representation and to terminate this agreement if it determines to undertake the representation of your client directly. This agreement may also be terminated for any of the reasons set forth in 28 C.F.R. $50.15 (b) (2), which provisions are incorporated herein by reference. A copy of the foregoing regulation is attached.

As you may know, the problem of providing for private counsel for government employees sued in their individual

1 Received by the subcommittee as tab C of Babcock letter of October 4, 1977 (exhibit 26).