- 24 aforementioned private attorney roles they are being required to assume with increasing frequency. Two solutions are proposed. The first, and least expensive, is the purchase of group malpractice insurance to cover the relatively few Department attorneys currently representing government employees sued in their individual capacities. The second approach would be an amendment to the FTCA, similar to that proposed above, which would make the United States exclusively liable for the alleged malpractice of its attorneys involved in civil defense litigation. IV. RECOMMENDATIONS I. With respect to the many ethical problems outlined above, it is recommended that advisory opinions be sought both from the Office of Legal Counsel and the ABA on the following questions: (1) Can the Department of Justice represent a current or former government employee and advocate a defense position which is inconsistent with a legal position taken by the United States in the same or other litigation, or even outside of litigation? (2) Can the Department of Justice represent such an employee only for the purpose of advancing a threshold defense not involving the development of facts (e.g., jurisdictional defense)? (3) Can the Department of Justice represent such an employee for the entire course of the litigation yet refuse to present a reasonable legal defense because it is contrary to a legal position of the United States? (4) If ethical problems are presented by questions (2) and (3), may they be obviated by a client's knowing acceptance of the terms of the Department's representation as outlined in the questions? (5) Can the Department terminate its representation of such an employee, whether by Department attorneys or retained counsel, upon its determination that the employee was acting outside the scope of his authority, and thus not statutorily entitled to government funded representation? 25 II. With regard to those cases involving allegations of CIA mail opening, no change in the present scheme of retained representation is recommended pending: (1) the receipt of advisory opinions from OLC and the ABA to the above-stated questions, and a definitive resolution of the questions is reached by the Department; and (2) resolution of recently submitted motions made by private counsel in the cases. III. As to those suits involving FBI break-ins, we recommend extensive consultation with the Civil Rights Division in order to ascertain the nature of any informal resolution of pending criminal matters short of indictment (e.g., decisions not to prosecute because of immunity, statute of limitations, etc.). We should resolve our future course of conduct on the basis of the principles enunciated above. Particular attention should be paid to decisions reached by the Civil Rights Division with respect to conduct virtually identical to the conduct of defendants in pending litigation, although not involving the same specific conduct (e.g., prosecutorial decisions concerning Weathermen breakins as opposed to Socialist Workers Party break-ins wherein prosecution is barred by the statute of limitations). IV. A redrafting of the Attorney General's representation guidelines is recommended in the following specific areas: (1) The standards for either not tendering representation in the first instance or terminating such representation (which are equivalent under the guidelines) upon the occasion cf any of the numerous and varied reasons for not seeking an indictment or information short of a finding of complete innocence; and (2) The provision permitting limited representation as to issues not in conflict with the broader interests of the United States in view of advisory opinions which may be solicited from the OLC and the ABA. V. With regard to ascertaining defendant conflicts at the start of litigation, it is recommended that initial 26 client interviews be conducted in those cases presenting the potential for conflicting interests through the use of one of the following approaches: (1) intra or inter-divisional screening committees to conduct initial interviews consisting of attorneys who would not be assigned to any case on which they conducted initial screening; or (2) continuation of the present practice of hiring a private attorney to conduct initial client interviews, at least in those cases where there is some potential for a disclosure of client confidences which could preclude representation of any defendant. VI. With respect to hiring private counsel, it is recommended that the following procedures be adopted: (1) Advertise the Department's need for private counsel in the Federal Bar Journal along with pertinent requirements; (2) Establish a selection committee which would review attorney resumes and compile a list of approved attorneys from which defendants could make a final selection; (3) Advise newly retained attorneys of (a) the fee limitation, (b) the "one attorney rule," (c) only bills for services reasonably necessitated by the defense will be accepted, and (d) identification of individual services performed must be specified in detail; and (4) Consult OLC as to the need for renewing existing retention contracts, and the feasibility of including the "one attorney rule". VII. In the event Congress denies further funding for retaining private counsel, it is recommended that all outstanding retention contracts be terminated. VIII. It is recommended that efforts be undertaken to amend the Federal Tort Claims Act in order to permit suits against the United States as the exclusive remedy for the conduct of its employees resulting from law enforcement or intelligence related functions. IX. Consideration should also be given to creating a counterpart to the Judge Advocate. General's corps of defense - 27 attorneys who would provide unrestricted representation to individually sued employees. X. Finally, in order to protect Department of Justice attorneys against the increasing likelihood of being sued for malpractice, it is recommended that: (1) Group malpractice insurance be purchased by the Government for those Department attorneys involved in defending government employees sued in their individual capacities; or (2) Amending the Federal Tort Claims Act to make the United States exclusively liable for the conduct of its attorneys in such suits. [Appendix A to Anderson report of March 21, 1977 (attachment The following is a brief description of pending civil damage suits in which private counsel are presently retained, or for which it appears private counsel will shortly be required. (1) Grove Press, Inc., et al. v. CIA, et al., Civil Defendants For Whom Private Representation Has James Schlesinger William Colby John McCone Vice Adm. Wm. F. Raborn Thomas Karamessines William Hood (2) Newton Miler Richard Ober James Angleton Raymond Rocca Richard Helms Other Named Defendants: George Bush Central Intelligence Agency (Both being represented directly by Justice Department attorneys) Driver, et al. v. Helms, et al., Civil Action Defendants For Whom Private Representation Has James Schlesinger Gen. Vernon A. Walters Gen. Robert E. Cushman John Gronouski William M. Blount 1 See exhibit 13 at p. 214; exhibit 40 at pp. 535-558; and exhibits 56-60 at pp. 935-950. Appendix B appears as exhibit 1 at p. 29. Appendix C appears as exhibit 8 at p. 101. |