$15.5 Representation of Federal Employees by Private Counsel at Federal Expense

A. Representation by private counsel at Federal expense is not available to a Federal employee:

1. if the representation is in connection with a Federal criminal proceeding in which it has been decided to seek an indictment of the employee, or in which the employee is a defendant;

2.

B.X.

if the act or acts with regard to which the employee
desires representation do not reasonably appear to
have been performed within the scope of his office or
employment with the Federal government; or

under circumstances her who

contemplated by

$15.4 (e) and (f), The Justice Department will retain
private counsel at federal expense.
(1)

2

The Department of Justice will select any private

counsel hired under this regulation.
security interests

Where

national secrets may be involved, the Department

of Justice will consult with the employing agency
Aside
as to appropriate and responsible counsel.
from such concerns, due consideration can properl
be given to requests of the employee that

particular counsel be retained.

(B) Whenever private counsel is selected under this regulation, the Department of Justice will enter into a written contract with such counsel, which will provide that the attorney-client relationship runs between such counsel and the Federal

3

employee, and not to the Department of Justice.

The contract must comply with all applicable

Federal procurement regulations, and contain
references to (3) and (4) below.

(*) Federal payments to private counsel for an

employee must cease if that employee is indicted on a federal criminal charge relating to the act or acts concerning which representation was undertaken.

(8) An acceptance of these procedures by the employee and an agreement by him and his private counsel not to later assert their invalidity is a pre

condition to representation at Federal expense.

regentation

Exhibit 6: Memorandum of Mary E. Wagner and Bruce A. Baird of June 4, 1976.1

Attached are draft regulations to deal with the
captioned area. The Civil Division's memorandum to you
of April 16, 1976, attached, suggested some minor
language changes in our earlier draft regulations and
discusses some major areas of concern that must be
resolved. We have met with Tom Martin of Civil and
Bob Keuch of Criminal and believe we have satisfactorily
resolved most of the problems. The issues Civil
raises are listed below, keyed to Civil's numbered
paragraphs and accompanied by our proposed resolution
of them. If you approve, we think the next step is
to disseminate the draft for final comments.

There are two areas, in particular, which we think
you will probably want to focus on. The first is whether
all civil representation of federal employees should be
consolidated in the Civil Division. Our draft guidelines
assume this, but, as you know, Criminal Division is opposed.
The second is whether a Department attorney representing
a federal employee should undertake the responsibility to
raise arguments that conflict with the general position
of the United States. Civil Division believes he should
not (see $6 of Civil's memo). We are less sure than Civil,
as you will see from the discussion at $6 of our memorandum.

1. The Civil Division questions the usefulness of the
word "target" to characterize the degree of suspicion which
would bar representation of an employee by a Department
attorney in the first instance. The Criminal Division, however,
whose job it will be to apply the standard, has no problem
in providing a workable definition that can be incorporated
in the guidelines. Under the definition, an employee is
the target of an investigation if there is any evidence
specifically tying him to a crime. Circumstantial evidence
is not sufficient. We have incorporated this definition
into the regulation.

1 Received by the subcommittee as part of tab A to Babcock letter of October 4, 1977 (exhibit 26).

2. The Civil Division points out that our attempt to limit the need for private counsel by use of the "target" standard will be frustrated unless we change our present practice of forcing all employees in a group to obtain outside counsel if any of them is a target. The current practice is used in order not to prejudicially identify the target.

We think the practice must change and that all non-targets should be represented. There may be some minimal prejudice, but it is not legally cognizable prejudice, and our attempt to represent as many employees as possible within the Department would fail if we took account of it. While this conclusion is not stated in the regulations, it is a necessary implication of them.

3. The Civil Division wonders how to deal with the apparent holding in Democratic National Committee v. McCord, Civ. No. 1233-72 (August 9, 1972) (Richey, J.),1 that the Justice Department may not represent someone civilly while it is investigating him criminally. The Civil Division suggests that we submit our regulations to the ABA for approval in light of this decision.

We do not believe the McCord decision raises insurmountable obstacles. The decision was not appealed and thus has no binding effect even on other D. C. district judges. Since it is not well reasoned, the opinion is unlikely to have even persuasive force. We are thus free to take a contrary position. Additionally, the validity of these regulations will surely be litigated in any event, and the imprimatur of the ABA, we are afraid, will not be persuasive to a court. ABA approval would also undoubtedly cause delay.

4. The Civil Division raises the issue of conflict which arises from the fact that U. S. Attorneys presently handle many employee representation cases. The Civil Division also questions the appropriateness of having the Attorney General and Deputy Attorney General, with their criminal as well as civil oversight functions, at the top of the chain of command in employee representation cases.

As to the U. S. Attorney problem, the regulations give all initial representation authority to the Civil Division. If they wish to assign some uncontroversial cases to the U. S. Attorneys' offices, we think that is within their administrative discretion as is a resolution of any conflicts which arise therefrom..

1 See attachment to exhibit 28 at p. 409.

- 3

As to the Attorney General and Deputy Attorney General oversight problem, we think that in the rare case of an actual conflict, one or the other or both could recuse themselves in favor of a designated delegate. In any other case, the problem is an artificial one which need not be addressed by the regulations.

5. The Civil Division suggests a change in wording which we have agreed to.

6. The Civil Division suggests in line with traditional practice that Justice Department Attorneys should not be allowed to raise argument or take appeals on behalf of government employees when to do so would contravene the interests of the United States. Further, Civil questions the legal authority to effect a change in that practice, and raises the practical concern that to raise arguments contrary to the interests of the United States may mean an end to the Department's present partial immunity from malpractice claims.

This area presents the most difficult problems we have had to face in drawing up the guidelines. The two of us have not been able to reach a solution with which we are both comfortable. The draft guidelines attached include (as paragraphs (a) (8) and (a) (9)) provisions which would allow a raising arguments on behalf of a client even when those arguments conflict with the interests of the United States. We disagree as to whether this is a desirable policy to implement, even if it should prove feasible -- and current budgetary constraints indicate that it may not be.

The chief obligation of the Department of Justice is to protect the interests of the United States. To the extent that an individual employee's interests are consistent with those of the United States, the Department has traditionally undertaken to represent such individuals. Under our new, interim policy, and the policy set forth in the draft guidelines, we implicitly recognize that one of the United States' many "interests" that of providing legal services free of cost to those sued because of their employment with the Government justifies the undertaking of a particular legal position even when it may run contrary to the broader "interests" of the United States.

-

21-221 O-78-7