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96.

Does a federal employee represented by a Department attorney have any
more or less control over the positions advanced by a Department attorney.
if the employee is sued in his or her individual capacity than if he or
she is sued in his or her official capacity?

97. Does a Department attorney assert more control over the positions which
are asserted on behalf of a federal employee sued in his or her individual
capacity than would a private attorney retained by the employee at his
or her own expense and, if so, what authority in the Code of Professional
Responsibility justifies this greater degree of control?

98.

What is the role of the Department in selecting private counsel to

engage in fact-finding or to represent an employee and in setting a fee schedule?

99. Can a Department attorney representing a federal employee settle or compromise a civil case against an employee in his or her individual capacity without the consent of the defendant?

100.

101.

102.

Does private counsel retained to represent a federal employee have any
more or less authority than a regular Department attorney representing
that employee to settle or compromise a case against an employee in
his or her individual capacity?

To what extent and in what manner does the Department supervise or
monitor the activities of private counsel retained to represent a
federal employee?

Does the Department require that private attorneys retained to represent
a federal employee transmit pleadings to the Department in advance or
after their being filed?

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103.

Will the Department retain private counsel if the sult seeks both

equitable and legal remedies and, if so, does the private attorney have

any more or less authority than a Department attorney to settle the

equitable claims?

104. Does payment by the Department directly to a private attorney representing a federal employee violate Discriplinary Rule 5-107(A)(1)

105.

106.

107.

of the ABA Code of Professional Responsibility and, if not, on what
basis does the Department conclude that no violation arises?

As stated in Ethical Consideration 5-22 of the ABA Code of Professional
Responsibility doesn't payment of private counsel by the Department
have the potential for impinging on the independent judgment of a
lawyer because such payments may make such attorney feel a responsibility
to the Department rather than to his or her client and, if so, how is this
potential mitigated?

If a federal employee requesting representation has been indicted for
acts unrelated to the acts for which he or she is requesting representation,

how can the Department proceed to represent the employee given the
holding in Grievance Comm. v. Rattner, 203 A. 2d 82, 84 (1964),
cited with approval in footnote 2 of Canon 5 of the American Bar
Association Code of Professional Responsibility?

Where a federal employee has been indicted by a Special Prosecutor,
may the Department represent or retain private counsel to represent
the employee in the civil case arising from the same acts for which he
or she, was indicted?

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108.

109.

110.

111.

112.

113.

What prejudice may arise if the Department retains private counsel to

represent some employees in a civil case and itself represents other
employees in the same case?

Is it possible to foresee situations in which the Department determines
to make an argument which conflicts with an interest of an employee
represented by the Department sufficiently in advance for the Department
to retain private counsel to represent the employee?

On what basis does the Department determine the financial terms for
payment of private counsel and in what way are the costs of the private
counsel controlled or audited?

Where a private attorney is retained by the Department to represent
an employee because the Department will not or cannot raise certain
arguments on his or her behalf, may the private attorney proceed to
make arguments which conflict with a governmental position or oppose
a position maintained by the United States?

If so, does this authority conflict with and supercede the proviso in
the "Supplementary Information" in Attorney General Levi's Initial
order that "the Department will not ...pay for representation where the
positions taken would oppose positions maintained by the United States
itself"?

will the Department cease to pay the costs of private counsel where--
as provided in Attorney General Levi's Order in section 50.16 (b)(1)(iv) ---
that "representation is not in the interest of the United States" and,

if so, would this situation arise when the private counsel begins to
take positions which conflict with or oppose government positions?

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114.

Does the litigating division's determination of "whether providing representation is in the interest of the United States" under 50.15 (a)(2) depend in whole or in part on "whether representation of the employee requires the making of an argument which conflicts with a government position" by a private counsel retained by the Department? 115. Is there any difference between the provisions in the order which bar the assertion of "any legal position or defense not In the

116.

Interest of the United States to assert" (section 50.15 (a)(9) (11))
and the making of "an argument which conflicts with a government
position" (section 50.15 (a)(10)), and, if so, what is the difference?
If a private attorney is free to assert any legal position in the
Interests of a federal employee and is bound to maintain the confidentiality
of all communications with his client, why must the Department terminate
payments to the attorney if the client is subsequently indicted?

117. Under what section of the Order are private attorneys who the Department retains to represent federal employees apprised of their authority to make arguments which conflict with or oppose Department positions

without any fear of losing their Department retainer?

118. Despite Department assurances of independence, is there a significant
possibility that private attorneys will not feel free to assert

positions adverse to those of the Department from whom they receive
their pay?

119. Are private attorneys retained by the Department free to subpena

Department documents or the testimony of Department employees without
any fear of losing their Department retainer?

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120.

121.

122.

123.

124.

Where the Department is subpenaed by private counsel it has retained
to produce documents or to testify, is there a conflict in the fact that
the Justice Department is paying the fees of the attorney seeking to
enforce such subpena?

Is there any significant possibility that in approving the selection
of a private attorney the Department will select attorneys who do not
have a reputation of opposing Department positions or of subpenaing
Department materials or testimony?

If plaintiffs issue subpenas to the Department or to the Executive
Branch seeking access to Department or executive branch documents in
a case in which the Department itself is a defendant or in which it is
representing a employee, will the same Department attorney representing
the Department or employee also represent the Department or executive
branch with respect to such subpena?

If the same Department attorney represents both the federal employee
and the Department or executive branch under these circumstances,

is there a greater probability that the Department attorney will resist the subpena than if the Department attorney were not also represneting the Department or employee in the case?

Does the fact that the Department is defending a federal employee give the Department attorney greater knowledge of the existence of documents held by the Department or the executive branch and, if so, does this give the Department attorney representing the civil defendants an advantage in resisting third party subpenas issued for these Department or executive branch documents which private counsel representing the defendants would not possess?