- 5 prejudice might be said to be present as to, for example, defendants Kissinger or Kliendienst, against whom no allegations of unlawful conduct are made from their being grouped with defendants against whom there are at least some allegations. In the first instance, it remains our position, as advanced in our pending motion, that the defendants against whom there are no substantive allegations should be dismissed at the outset, in which case any potential for prejudice would never mature into reality. Moreover, even if such defendants are not dismissed at the outset, we do not believe it presumptuous of us to maintain that whatever prejudice might result from the grouping is largely mitigated by the fact that these defendants are being represented by the Department of Justice. Thus, we do not believe that any jury would view unfavorably the fact that a particular former government employee named as a defendant was being represented by the Department, regardless of what other defendants the Department was in fact representing. the contrary, we believe that, if anything, a jury will more likely be affected by the failure of the Department to represent a former official for actions taken in the line of duty. Thus, we do not believe the mere fact of grouping presents a sound reason for the Department to discontinue its representation of any defendant. On The final area upon which the Court has commented is the potential for conflicts between or among the defendants whom the Department is currently representing in this action. In this context, the Court had appeared to be particularly concerned with the potential that some of the defendants represented by the Department may wish to raise the so-called "foot-soldier defense" recognized by the Court of Appeals for this Circuit in United States v. Barker, 168 U.S. App. D.C. 312, 514 F.2d 208 (C.A.D.C. 1975). It is perhaps most important to note that all are in apparent agreement that there are no actual conflicts among the defendants concerned. We are, rather, dealing only with potential conflicts. In this regard, we have been guided principally by the precepts of Canon Five of the Code of Professional Responsibility, and, most particularly, Disciplinary Rule 5-105, which leave the determination of simultaneous representation of multiple clients with potentially differing interests, largely within the discretion of the client. I can assure you that the subject of potential conflicts has been explored at length with each of the individuals whom we represent and each has indicated a preference for continued Department of Justice representation in this action. Apart from compliance with the Code of Professional Responsibility, the alternative of hiring private counsel for each defendant would present an unsatisfactory solution for a number of reasons and would appear to work to the disadvantage of each of the interested parties in this lawsuit. To the Government, the substantial expenditure of funds which such representation would entail would put a severe strain on a very limited amount appropriated by Congress for all such cases, to the potential detriment of defendants in future cases where the retention of private counsel may in fact be necessary. Of even greater importance is the potential for prejudice to the individual defendants because of the likely misperception of the Department's reasons for . not representing them in this action. Moreover, from the plaintiff's and the Court's viewpoint, more attorneys would simply mean increasing the avalanche of paper which this case has already generated, with much duplication. In fact, United States District Judge Renfrew, of the United States District Court for the Northern District of California in a recent mail-intercept case (Kipperman v. icCone, Civ. 75-1211 (N.D. Calif., 1976) Memorandum of Opinion and Order, p. 15) complained to the Department because of such a result in an action where potential conflicts required the Department to compensate a substantial number of private counsel. A copy of Judge Renfrew's Opinion is attached. Thus, without question, the Department's attempted resolution of the representation problems engendered by this case may not leave us with an ideal situation. However, it is our belief that the course we have adopted presents the best of available alternatives. We are sincerely grateful to the Court and to all counsel in this action for their assistance in this most difficult area. We, of course, welcome any further suggestions by any interested party and would be happy to discuss this matter further at the Court's convenience. Very truly yours, BARBARA ALLEN BABCOCK bec: All Counsel of Record bcc: William E. Nelson, Esq. 1707 H Street N.W. Washington, D. C. 20006 Exhibit 12: Excerpts From House Appropriations Committee SUPPLEMENTAL APPROPRIATIONS FOR FISCAL HEARINGS BEFORE SUBCOMMITTEES OF THE NINETY-FIFTH CONGRESS Mr. SLACK. The next item is a request for $8,273,000 for salaries and expenses, general legal activities. We shall insert at this point in the record the justifications under the tab entitled "General Legal Activities." [The justifications follow:] LEGAL ACTIVITIES SALARIES AND EXPENSES, GENERAL LEGAL ACTIVITIES For an additional amount for "Salaries and expenses, general legal activities", $8,273,000. APPROPRIATION SUMMARY SHEET Salaries and Expenses, General Legal Activities (1) Increased costs of space and services provided by GSA (3) Continuation of the Tax Division investigatory and litigative responsibilities in the areas of: a. b. white collar crime; C. Provisions of the Tax Reform Act of 1976; (4) Increased appellate workload in the Criminal Division; (5) Anticipated costs of private counsel fees; (6) Provide resources for litigation arising from the Swine Flu program; (7) Anticipated costs of litigation under the Freedom of Information and Privacy Act; and (8) Increased number and length of expert case preparations required in land matters. 1/ Includes $2,860,000 for pay supplemental. 497 |