A very shared specialized responsibility violation that many federal government Agency lawyers commit ordinarily is the failure to pass along a settlement need from the employee’s attorney to the agency. Many of these Agency lawyers mistakenly believe that when the Agency settlement official informed the Agency lawyer that the federal agency had no financial authority to settle an employment case, they are freed of the specialized responsibility to present each and every settlement need, which is the standard specialized responsibility requirement in many jurisdictions.
In fact, there may already be a federal agency protocol that these lawyers have to follow with respect to forwarding or specifically not forwarding certain offers from plaintiffs that are above a certain amount of money. Nonetheless, if that policy or protocol conflicts with that attorney’s specialized responsibility requirements, that attorney cannot shirk that duty. Lawyers are asked many times by their clients to ignore specialized responsibility rules. A client’s consent to same does not free that lawyer from those duties. I have heard from other lawyers that a typical defense attorney violates this rule at the minimum half the time.
Equally fascinating is the federal agency attorney’s reaction to a plaintiff’s attorney reminding the government lawyer of his or her responsibility to follow these rules. It is almost closest censured as a “threat” and along with it comes the accusation from the agency attorney that the plaintiff’s lawyer has himself committed a specialized responsibility violation by this reminder.
This reaction is strictly emotional and has absolutely no basis in reality. It is a product of the very ecosystem of the agency bubble in which the attorney lives. Any force outside of that bubble is a foreign intrusion to which they have little if any familiarity.
The actual rule is pretty similar in most jurisdictions. In Washington, DC, this rule is 8.4 (g) of the Rules of specialized Conduct. Most importantly, it’s under the general category of Rule 8 – Maintaining the Integrity of the Profession.
Rules of specialized Conduct: Rule 8.4 –Misconduct
It is specialized misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of specialized Conduct, knowingly assist or generate another to do so, or do so by the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) include in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) include in conduct that seriously interferes with the administration of justice;
(e) State or imply an ability to influence improperly a government agency or official;
(f) Knowingly assist a estimate or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) Seek or threaten to seek criminal charges or disciplinary charges solely to acquire an advantage in a civil matter.
In their gut reaction, these agency lawyers assume that 8.4(g) has been violated. However, a Plaintiff’s lawyer will have committed an 8.4(g) violation only if that lawyer truly connected that specialized responsibility reminder to a litigation need. For example, if the Plaintiff’s lawyer told the agency lawyer that unless the agency paid his client x amount of money or didn’t file a summary judgment motion, he was going to report specialized responsibility violations.
The motivations behind plaintiff lawyers who send these reminders are two-fold. One is to make sure that any client isn’t disadvantaged by an attorney failing to follow these rules. After all, this particular rule falls under the category of maintaining the profession’s integrity. Two, is to ascertain whether a particular attorney is willing to submit his or her conduct to the Lawyer Rules of specialized Responsibility. If that person isn’t, then in many jurisdictions, the Plaintiff’s attorney then may have an obligation to report that lawyer to his or her state’s bar.
D.C. Rules of specialized Conduct: Rule 8.3–Reporting specialized Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of specialized Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate specialized authority.
Hence, because these attorneys don’t deal with individual clients and are, let’s confront it, part of the agency, they may without the specialized independence in handling the litigation. A number of these lawyers may honestly believe that following Agency protocol protects them from specialized Responsibility issues. Nothing could be further from the truth. A simple, justified reminder is not a threat.