• November 26, 2021

Playing Hard with Professional Liability with Federal Agency Attorneys – Part Two

A very common professional liability violation that many federal government agency attorneys routinely commit is not transmitting a liquidation demand from the employee’s attorney to the agency. Many of these Agency attorneys mistakenly believe that when the Agency’s liquidation officer informed the Agency attorney that the federal agency did not have financial authority to resolve an employment case, they are relieved of the professional responsibility of filing all and each of the liquidation lawsuits, which is the standard. professional liability requirement in many jurisdictions.

In fact, there may even be a federal agency protocol that these attorneys must follow regarding sending or specifically not sending certain offers from plaintiffs that exceed a certain amount of money. However, if that policy or protocol conflicts with that attorney’s professional liability requirements, that attorney cannot evade that duty. Clients often ask attorneys to ignore professional liability rules. The consent of a client to the same does not relieve that lawyer of those duties. I have heard from other attorneys that a typical defense attorney violates this rule at least half the time.

Equally fascinating is the federal agency attorney’s reaction when the plaintiff’s attorney reminds the government attorney of their responsibility to follow these rules. Almost immediately it is censured as a “threat” and along with it comes the agency attorney’s accusation that the plaintiff’s attorney has committed a professional liability violation through this reminder.

This reaction is strictly emotional and has absolutely no basis in reality. It is a product of the very environment of the agency bubble in which the lawyer lives. Any force outside of that bubble is a foreign intrusion with which they have little or no familiarity.

The actual rule is quite similar in most jurisdictions. In Washington, DC, this rule is 8.4 (g) of the Rules of Professional Conduct. Most importantly, it falls into the general category of Rule 8: Maintain the integrity of the profession.

Rules of Professional Conduct: Rule 8.4 – Misconduct

It is professional misconduct for an attorney to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly helping or inducing another to do so, or doing so through the acts of another;

(b) Commit a criminal act that negatively reflects on the honesty, reliability or suitability of the lawyer as a lawyer in other respects;

(c) Engaging in conduct that involves dishonesty, fraud, deception or misrepresentation;

(d) Engaging in conduct that seriously interferes with the administration of justice;

(e) Declare or imply the ability to improperly influence a government agency or official;

(f) Knowingly assisting a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law; gold

(g) Seeking or threatening to pursue criminal or disciplinary charges solely to gain an advantage in a civil matter.

In their knee-jerk reaction, these agency attorneys assume that 8.4 (g) has been violated. However, a plaintiff’s attorney will have committed an 8.4 (g) violation only if that attorney actually linked that reminder of professional responsibility to a litigation claim. For example, if the plaintiff’s attorney told the agency’s attorney that unless the agency paid his client x amount of money or did not file a motion for summary judgment, he was going to report professional liability violations.

The motivations behind the plaintiff attorneys sending these reminders are twofold. One is to make sure that no client is harmed by an attorney who does not follow these rules. After all, this particular rule falls under the category of maintaining the integrity of the profession. Two, is to determine whether a particular attorney is willing to subject their conduct to the Lawyer’s Rules of Professional Responsibility. If that person is not, then, in many jurisdictions, the plaintiff’s attorney can have an obligation to report that attorney to your state bar association.

DC Rules of Professional Conduct: Rule 8.3 – Reporting Professional Misconduct

(a) An attorney who knows that another attorney has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the honesty, reliability, or fitness of that attorney as an attorney in other respects, will report to the appropriate professional authority.

Therefore, because these attorneys do not deal with individual clients and are, let’s face it, part of the agency, they may lack the professional independence to handle litigation. Some of these attorneys may honestly believe that following Agency protocol protects them from Professional Liability issues. Could not be farther from the truth. A simple and justified reminder is not a threat.

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