A very common professional liability violation that many federal government agency attorneys routinely commit is failing to transmit a settlement demand from the employee’s attorney to the agency. Many of these Agency attorneys mistakenly believe that when the Agency’s settlement officer informed the Agency’s attorney that the federal agency did not have the financial authority to settle a labor case, they are released from the professional responsibility of presenting any and all one of the liquidation claims, 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 forwarding or specifically not forwarding certain offers from plaintiffs that are over a certain amount of money. However, if that policy or protocol conflicts with that attorney’s professional responsibility requirements, that attorney cannot shirk that duty. Attorneys are often asked by clients to disregard professional liability rules. A client’s consent to it does not relieve that attorney 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 reaction of the federal agency’s attorney when the plaintiff’s attorney reminds the government attorney of their responsibility to follow these rules. It is almost immediately censured as a “threat” and along with it comes the accusation from the agency’s attorney that the plaintiff’s own 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 that bubble is an alien 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 under the umbrella 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 aid or induce another to do so, or do so through the acts of another;
(b) Committing a criminal act that reflects negatively on the attorney’s honesty, reliability, or suitability in other respects;
(c) Engage in conduct that involves dishonesty, fraud, deception, or misrepresentation;
d) Engaging in conduct that seriously interferes with the administration of justice;
(e) State or imply the ability to improperly influence a government agency or official;
(f) Knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; Prayed
(g) Soliciting or threatening to file criminal charges or disciplinary charges solely to gain an advantage in a civil matter.
In their gut 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 liability to a litigation claim. For example, if the plaintiff’s attorney told the agency’s attorney that unless the agency paid his client an amount of money or did not file a motion for summary judgment, he was going to report professional liability violations.
The motivations behind plaintiffs’ 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 into the category of maintaining the integrity of the profession. Two is to determine whether a particular attorney is willing to subject her conduct to the Rules of Attorney Professional Responsibility. If that person is not, then in many jurisdictions, the Plaintiff’s attorney will then can have annual bonus to report that attorney to your state bar association.
DC Rules of Professional Conduct: Rule 8.3–Reporting of Professional Misconduct
(a) An attorney who is aware that another attorney has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that attorney’s honesty, reliability, or other suitability, should report it 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 justified reminder is not a threat.