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Government agency lawyers live in a bubble. They are protected by the same system of corruption, nepotism, waste, fraud and abuse that causes so much hardship for many federal employees. As long as these lawyers toe the party line, their jobs are secure; they get a good pension; And they don’t need to worry much.
While not all public prosecutors act this way, the temptation to do so is great. After the agency director, the special agent in charge or some other high-ranking bureaucrat is generally a big key to any federal agency position, so an attorney should be no different.
However, there is an officer bigger than that bureaucrat. This sends shock waves through all federal agency lawyers and in most cases, these people are shocked by a new system of authority, something completely foreign: The Bar. Even Bill Clinton lost his Arkansas law license because the guys at the Arkansas bar didn’t care that he only perjured himself about sex.
Most bar complaints come from disgruntled clients who didn’t get a good outcome on their case, so they blame their attorneys. The average lawyer in private practice will encounter some of these over the course of their career. For this reason, after many years of practice, private practice lawyers have developed well-developed defensive systems to cover themselves against these complaints.
The agency’s lawyers don’t deal with this system and don’t have the first clue about it. As such, they are generally not subject to professional liability rules. The fear of suspension or dismissal may be so great that the agency’s counsel may not have the stomach for the threat of a bar complaint. There is little reward for an agency lawyer to go through any of these bar messes if it can be avoided.
Consider these examples of how agency lawyers don’t have the first clue about, yet they fully support their bureaucratic bosses:
1. A federal employee has an existing whistleblower claim. To screw it up, the agency states at arbitration that if the employee refuses to take its low ball offer, the agency will terminate the employee for reasons it already knows to be untrue. It is unethical for lawyers to defend claims that have no merit. Since the federal employee would file another claim against his agency to the Merit Systems Protection Board, the agency attorney would litigate a claim: a frivolous, legal and factual claim because his bureaucratic boss ordered him to do so. His/her state’s bar – doesn’t care about bubbles – it’s a violation.
2. A federal employee has an existing legal action for discrimination and is represented by an attorney. The agency lawyer executes an order from the bureaucratic boss to send a motion to dismiss directly to the employee, despite the employee being represented by a lawyer. In most state bars, this is a violation because the attorney communicated directly with someone who knew the attorney was being represented. The agency’s attorney was required to have a professional responsibility to communicate with that person’s attorney and did not do so. His/her state’s bar – doesn’t care about bubbles – it’s a violation.
3. Someone at the US State Department orders the US Attorney not to disclose Hillary Clinton’s emails as part of a Freedom of Information Act lawsuit because they will make her look bad. The US Attorney agrees. A federal judge later found that the US Attorney was more loyal to Clinton than to the rules of professional responsibility that a lawyer must follow. That lawyer should get ready to become a lobbyist.
The gist of it is this: The bubble can’t protect the bad guys from everything.
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