1.

Perm.

Perm.

Peri.

Pos.

Amount

Pos.

Amount

Pos.

Amount

Conduct of Supreme Court proceedings and review of appellate matters.

47

$2,027

417

$2,028

$1

The Department has made a number of efforts to reduce the quantity of briefs it must file in response to petitions for certiorari, but the Supreme Court continues to request full responses. This is understandable from the Court's point of view, since it is presently overburdened and any aid it can obtain in this fashion is very helpful in deciding which cases to grant for oral argument. There is no way to alleviate this problem other than to increase personnel in the Division Appellate Section.

Apart from the number of cases involved, present cases are more difficult to prepare for presentation in the Supreme Court. Some United States Attorneys, in order to save Government funds do not order transcripts but use the District Court's copy. This in turn requires the section to obtain that copy from the Court of Appeals to be certified by the Supreme Court Clerk, where it can be used to write a statement of facts. This circuitous method of obtaining vital transcripts contributes to delay. Also, while some Courts of Appeals have cut the time they spend on each case by eliminating oral argument and writing short per curiam opinions, this merely increases the Section's work in preparing drafts in response to Supreme Court petitions, since there is no substantial opinion to cite for the facts or legal analysis. Indeed, some Courts of Appeal decisions only state, "Appeal denied".

The major hidden cost of these circumstances is, of course, the potential for erosion in the quality of professional work. Preparation of good briefs takes time and the development of good brief writers takes careful seasoning, in an atmosphere free of constant deadlines and the need "just to get something filed." When that atmosphere exists, personnel turnover increases and the Department defaults on its obligations both to the Courts and to its professional employees.

The FY 1977 supplemental request in the amount of $4,878,000 includes $3,558,000 for the Criminal Division and $1,320,000 for the Civil Division for the purpose of providing legal representation to several groups of former and present l'ederal employees in civil suits alleging the use of questionable investigative activities.

Legal representation of Government officials in civil suits brought against them arising out of the performance of their governamental duties is a responsibility of the Attorney General under 28 U.S.C. It is clearly in the interest of the United States to be able to assure those who accept 516-519. Government employment that the cost of providing a defense In the event of such litigation will not be a penalty of government service.

Legal representation of Government employees is normally provided by Department staff attorneys. For two reasons surrounding these particular matters, however, this practice is inappropriate. In 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 aults 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 deferdents 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 immunity. In one case a full trial was required to assess immunity).

The incomplete nature of civil rights criminal investigations, the varying number of defendents, the probability of additional defendents being named, the probability that plaintiff's 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: