The FY 1977 supplemental request in the amount of $1,878,000 includes $3,558,000 for the Criminal Legal representation of Government officials in civil suits brought against them arising out of the 18 [Pages 498-511 of the hearings are deleted] 512 513 In Legal representation of Government employees is normally provided by Department staff attorneys. For two reasons surrounding these particular matters, however, this practice is inappropriate. relation to the several civil suits alleging questionable Investigative activities conducted by Federal agencies and their employees, the Department is following its standard policy of investigating the allegations to determine if a crime may have been committed. Since the Department is conducting criminal investigations, it is a conflict of interest and a violation of the canons of ethics for it to represent the targets of such an investigation in related civil suits. Accordingly, private counsel is being retained for the sued employee-defendents. (Of course, as the Department determines that the defendents were acting within the scope of their authority and, therefore, not criminally liable, the Department will attempt to revert to the normal operational policy of defending the civil suits with staff attorneys) The second reason is that, even in those suits where there is no potential criminal liability, there are still multiple defendants, and the relevant canons may still require separate representation. Many of the individually sued defendents held and continue to hold inconsistent and contradictory opinions regarding who (if any) among them was responsible for alleged misconduct. The canons prohibit a single attorney from representing multiple clients with conflicting interests. To avoid the prejudicial result of providing selective Department representation to only selective individually sued defendents (notwithstanding the pitfalls of intra-Departmental conflict of interest in the related criminal investigations and defense of civil suits), private counsel is necessary. The Department has absorbed $500,000 in private counsel bills during FY 1976 and the Transition Quarter. This delayed numerous spending requests which must now be met in FY 1977. The estimated FY 1977 private counsel cost cannot be similarly absorbed. The volume of current and anticipated cases is unprecedented due to recent disclosures of investigative activities and, more importantly, to the changing law on Government officials' immunity from sult. (Previously, immunity from civil suits was granted without trial; now, extensive discovery is required to assess such inmunity. one case a full trial was required to assess inmunity). In The incomplete nature of civil rights criminal investigations, the varying number of defendents, the probability of additional defendents being named, the probability that plaintiffs will subpoena certain employees for deposition testimony, and the varying stages of the cases in the pre-trial process, required that cost projections be made for each case incorporating studied legal Judgments of expected discovery, trial preparation, trial, and appeals actions. So as not to affect the due process rights of any party, the Department desires that the detailed factors employeed in the cost projections be provided by a vehicle other than this supplemental request narrative. In summary, the matters requiring private counsel together with cost projections are: 19 Criminal Division Berlin Democratic Club v. Rumsfeld, et al. Socialist Workers Party v. the Attorney General, et al. Cases where representation request are under consideration Anticipated new cases Sub-Total In this case, trial is inevitable, and already over 50 FBI agents have been involved in the discovery process. 480,000 Grove Press v. Central Intelligence Agency, et al. 360,000 IRVING JAFFE, ACTING ASSISTANT ATTORNEY GENERAL NEIL R. PETERSON, ASSISTANT CHIEF, TORTS SECTION GLEN E. POMMERENING, ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION WILLIAM D. VAN STAVOREN, ACTING DIRECTOR, MANAGEMENT GILBERT M. LEIGH, JR., ASSISTANT DIRECTOR, MANAGEMENT KEVIN D. ROONEY, ACTING ASSISTANT DIRECTOR, RESOURCE CIVIL DIVISION REQUEST Mr. SLACK. We will now hear from the Civil Division. Mr. Jaffe, do you have a prepared statement? Mr. JAFFE. Yes, sir, I do. I would like to read it. Mr. SLACK. You may proceed. [The full statement and biographical sketches follow:] 546 Mr. JAFFE. Mr. Chairman and members of the subcommittee: I appreciate the opportunity to appear before you in support of the Civil Division's supplemental budget request for fiscal year 1977. We ask for $6,545,000 and 46 positions. Our request concerns three areas of our activity: Private counsel fees for which we seek $4,878,000 and no positions; swine flu litigation for which we seek $1,228,000 and 28 positions; and litigation under the Freedom of Information, Privacy and related acts for which we seek $439,000 and 18 positions. Funds with which to pay private counsel have become necessary to enable us to provide legal representation to present and former Federal officers and employees who are sued civilly for money damages in suits alleging unlawful intelligence and law enforcement activities on their parts under the color of their offices or employment. Pursuant to statute, the Attorney General has traditionally provided legal representation to present or former officers or employees of the Government who are sued for acts or conduct arising out of the performance of their official duties. Such representation is clearly in the best interests of the United States since it assures the fearless performance by an employee of his duties, unfettered by the threat of bearing the burden and expense of vexatious litigation. This representation has been traditionally provided since the country's founding. The practice has been extended to the judicial and legislative branches as well. Ordinarily, such representation is provided by attorneys within the Department of Justice. However, representation cannot be so provided where a conflict of interest or a violation of the canons of ethics arises. Conflicts arise primarily in two situations. The first is when the Department is investigating the acts involved in the civil litigation for possible violation of criminal law. Obviously, the Department cannot represent, by its own attorneys, an employee in a civil suit at the same time that such employee is the target for possible criminal prosecution for the same conduct. The second situation is where multiple defendants in the same civil suit have conflicting interests with each other in respect to the defense of that suit. The canons of ethics do not permit representation of conflicting interests in the same suit by the same attorney-in this case, the Attorney General. Recently the Attorney General issued a policy statement concerning the representation by the Department of Federal employees. This statement, which is attached, is dated January 19, 1977, was published in the Federal Register on January 31, 1977, and became effective that same day. During the past 2 years or so a number of suits have been instituted each having many defendants, alleging improper activities by present or former employees and seeking huge individual money judgments. Each presents one or both of the conflicts mentioned above. These cases, some of which are class actions, with the massive discovery that each entails, can be expected to be pending in active litigation for a long time. The continuing disclosures of intelligence and enforcement activities and the evolution of changing concepts in the law of official immunity portends the institution of similar additional suits. In the last fiscal year and transitional quarter, before the Department was able to anticipate the magnitude of the representation prob 21-221 - 78 - 12 |