LEARNS THE FIRST PIECE OF INCRIMINATING INFORMATION, WHEN

IT LEARNS ENOUGH TO JUSTIFY AN INDICTMENT, OR WHEN IT
ACTUALLY DECIDES TO INDICT. OF THESE, THE TIME WHEN IT
HAS FINALLY DECIDED TO INDICT SEEMS TO BE BOTH EASIEST TO
ADMINISTER AND MOST BENEFICIAL TO THE EMPLOYEE CONSISTENT
WITH DEPARTMENT RESPONSIBILITIES.

IN CIVIL SUITS BASED ON THE SAME SUBJECT MATTER AS A

CRIMINAL INVESTIGATION, IT SEEMS POSSIBLE TO DEFEND THE EM-
PLOYEE EVEN AFTER HIS INDICTMENT ON THE CRIMINAL CHARGE.
AFTER ALL, HIS GOOD FAITH, REASONABLE BELIEF THAT HIS ACTIONS
WERE LEGAL MAY BE A DEFENSE TO CIVIL LIABILITY, EVEN IF THE
ACTIONS ARE HELD TO BE ILLEGAL. BUT, THE WISDOM OF SUCH A
DEFENSE IS A TOUGHER QUESTION. IN MY JUDGMENT, THE BALANCE
OF INTERESTS BETWEEN DETERRENCE AND EMPLOYEE MORALE SHOULD
BE RESOLVED IN FAVOR OF DETERRENCE ONCE A FEDERAL INDICTMENT

HAS BEEN HANDED DOWN. WHEN THE FEDERAL INDICTMENT IS BASED
ON AN UNRELATED MATTER, HOWEVER, THERE IS NO REASON WHY THE
DEPARTMENT CANNOT CONTINUE TO DEFEND THE EMPLOYEE IN A CON-
CURRENT CIVIL SUIT OR OTHER PROCEEDINGS.

MY FINAL CONCLUSION CONCERNS ATTORNEY-CLIENT CONFIDENTIALITY AND ITS RELATION TO REPRESENTATION OF GOVERNMENT EMPLOYEES. SOME HAVE ARGUED THAT THE GOVERNMENT LAWYER'S PECULIAR RESPONSIBILITIES PRECLUDE ANY CONFIDENTIAL ATTORNEY-CLIENT

RELATIONSHIP WITH ANOTHER GOVERNMENT EMPLOYEE.

THEREFORE

ANY INCRIMINATING INFORMATION GAINED WHILE REPRESENTING
SUCH AN EMPLOYEE MUST BE TURNED OVER TO THE APPROPRIATE
PROSECUTORIAL AUTHORITIES. THUS, EVEN WHEN THE INTERESTS

OF THE UNITED STATES ALLOW THE JUSTICE DEPARTMENT TO
REPRESENT A GOVERNMENTAL EMPLOYEE, THE ETHICAL RESPONSIBIL-

ITIES OF DEPARTMENT LAWYERS FORBID COMPLETE REPRESENTATION.
IN THE PAST, AN EMPLOYEE WHO SOUGHT DEPARTMENT REPRESENTA-
TION HAD TO WAIVE HIS ATTORNEY-CLIENT PRIVILEGE WHENEVER THERE
WAS ANY CHANCE OF FUTURE CRIMINAL INVESTIGATION ON THE SAME
FACTS. THIS UNFORTUNATE POLICY CAME TO OUR ATTENTION DURING
THE RECENT SPATE OF CONGRESSIONAL HEARINGS, CRIMINAL INVES-
TIGATIONS, AND CIVIL SUITS OVER THE ALLEGED ILLEGAL INTELLIGEN
ELLIGEN
GATHERING BY THE FBI AND CIA IN THE 1960'S. OUR INTERIM
SOLUTION HAS BEEN TO PAY PRIVATE ATTORNEYS TO REPRESENT THESE
EMPLOYEES WHILE WE INVESTIGATE THE POSSIBILITY OF CRIMINAL
CONDUCT AND TO CEASE THE PAYMENTS WHEN A DECISION TO INDICT
EVENTUALLY, HOWEVER, I HOPE THAT WE WILL RECOG-

HAS BEEN MADE.

NIZE THAT A GOVERNMENT ATTORNEY'S ETHICAL RESPONSIBILITIES

DO NOT FORBID HIM TO ENTER INTO A FULL ATTORNEY-CLIENT RELATIONSHIP WITH AN ACCUSED, SUED, INVESTIGATED OR OTHER SCRUTINIZED GOVERNMENT EMPLOYEE.

21-221 O-78-34

- 9

THIS HAS BEEN RECOGNIZED, AT LEAST FOR REPRESENTATION IN CERTAIN PERSONNEL ADMINISTRATION PROCEEDINGS, BY THE NATIONAL COUNCIL OF THE FEDERAL BAR ASSOCIATION. IN 1973, THE COUNCIL ADOPTED SUPPLEMENTARY FEDERAL ETHICAL CONSIDERATIONS TO THE A.B.A. CODE OF PROFESSIONAL RESPONSIBILITY. THESE SUPPLEMENTARY CONSIDERATIONS STATE THAT WHEN A FEDERAL LAWYER IS DESIGNATED TO REPRESENT A FELLOW EMPLOYEE, THEIR ASSUMPTION OF THE TRADITIONAL ATTORNEY-CLIENT

RELATIONSHIP IS NOT INCONSISTENT WITH THE PUBLIC INTEREST, AND ATTORNEY-CLIENT COMMUNICATIONS SHALL BE PRIVILEGED.

I

THINK THE SAME CONSIDERATIONS SHOULD APPLY FOR DEFENSE OF AN EMPLOYEE IN ANY PROCEEDING SHORT OF FORMAL INDICTMENT.

THIS VIEW GOES AGAINST THE GRAIN OF MANY DEPARTMENT ATTORNEYS, WHO PERCEIVE IT AS IN CONTRAVENTION OF THE PUBLIC INTEREST. I SUGGEST THAT WE CAN AND SHOULD INTERPRET THE

PUBLIC INTEREST MORE BROADLY.

THE DEPARTMENT OF JUSTICE IS NOT A SINGLE LAWYER, WHO CANNOT REPRESENT TWO CONFLICTING CAUSES, HOWEVER GOOD THEY BOTH MAY BE. RATHER, IT IS A COLLECTION OF SMALLER ENTITIES, THE FBI, THE CIVIL RIGHTS DIVISION, AND SO ON, WHO DEFEND DIFFERENT AND CONFLICTING INTERESTS ON A DAILY BASIS. SURELY

WE CAN MAKE ROOM FOR ONE MORE THE PUBLIC INTEREST IN FEARLESS AND HIGHLY MOTIVATED FEDERAL EMPLOYEES. TO THOSE WHO SAY THAT THIS DEFENSE WILL INTERFERE WITH OUR PROPER

FUNCTION

THE PROSECUTION OF THE GUILTY, I CAN ONLY RESPOND

STATED BY AN INSCRIPTION IN THE JUSTICE DEPARTMENT BUILDING:

"THE UNITED STATES WINS ITS CASE WHENEVER JUSTICE IS DONE

ONE OF ITS CITIZENS. .

THIS IS ESPECIALLY TRUE WHEN THAT

CITIZEN IS AN UNPOPULAR LITIGANT.

DOJ-1976-01

Exhibit 40: General Accounting Office Report of May 6, 1977

Lawsuits Against The Government
Relating To A Bill To Amend The
Privacy Act of 1974

Department of Justice

As of June 1, 1976, 143 lawsuits were pend-
ing against the Government or its employees
for activities, such as trespass without con-
sent, listed in House bill 12039. The bill,
which would have amended the Privacy Act
of 1974, did not pass the Ninety-fourth
Congress.

The amount of money the Government could
be liable for due to activities covered by the
bill cannot be assessed because some lawsuits
contained allegations unrelated to matters in
the bill.

Private attorneys from 20 law firms were re-
tained by the Department of Justice to repre-
sent 52 defendants in 8 lawsuits.

GGD-77-21

MAY 6, 1977