A common professional liability violation that many attorneys for federal government agencies routinely commit is failure to pass a settlement request from the employee’s attorney to the agency. Many agency attorneys mistakenly believe that when an agency settlement official informs the agency attorney that the federal agency does not have the financial authority to settle an employment case, they are released from professional liability for filing each settlement request, which is the standard professional liability requirement in many jurisdictions.
In fact, there may be a federal agency protocol that these attorneys have to follow regarding whether or not to forward certain offers from plaintiffs that exceed a certain amount of money. However, if this policy or protocol conflicts with the requirements of an attorney’s professional liability, that attorney cannot shirk that duty. Many times their clients ask lawyers to ignore the rules of professional liability. The client’s agreement to this does not release the attorney from these duties. I’ve heard from other attorneys that a typical defense attorney violates this rule at least half of the time.
Also impressive is the reaction of the federal agency attorney to the plaintiff’s attorney reminding the state attorney of his or her responsibility to follow these rules. He is almost immediately censured as a “threat,” and with it comes the accusation from the agency’s attorney that the plaintiff’s attorney has himself committed a breach of professional responsibility by this recall.
This reaction is completely emotional and has absolutely no basis in reality. It is a product of the agency bubble environment in which the lawyer lives. Any force outside that bubble is foreign interference of which they have little knowledge.
The actual rule is pretty much the same in most jurisdictions. In Washington, D.C., this rule is 8.4(g) of the Professional Conduct Code. Most importantly, it falls under the general category of Rule 8 – Maintaining Profession Integrity.
Code of Conduct: Rule 8.4 – Misconduct
It is professional misconduct for a lawyer to:
(a) to violate or attempt to violate the Code of Professional Conduct, or to knowingly assist or induce another person to do so, or to do so through the actions of another person;
(b) the commission of a criminal act that reflects negatively on the integrity, credibility, or suitability of an attorney in other respects;
(c) engage in deceptive, fraudulent, deceptive, or misrepresented conduct;
(d) engaging in conduct that seriously interferes with the administration of justice;
(e) identifies or implies the ability to improperly influence a government agency or official;
(f) knowingly aiding a judge or judicial officer in conduct that violates applicable judicial conduct or any other law; or
(g) Seeking or threatening to seek criminal charges or disciplinary charges simply to obtain an advantage in a civil case.
In their internal reaction, these agency attorneys assume that 8.4(g) has been violated. However, the plaintiff’s attorney would have committed a violation of 8.4(g) only if that attorney actually linked the recall of professional liability to the request for litigation. For example, if the plaintiff’s attorney tells the agency’s attorney that unless the agency pays his client X an amount of money or he does not file a motion for summary judgment, he will report professional liability violations.
The motivations behind plaintiff attorneys sending out these reminders are twofold. One of them is to ensure that any client who does not harm an attorney does not follow these rules. After all, this particular rule falls under the category of preserving the integrity of the profession. Second, is to ascertain whether a particular attorney is willing to submit his or her conduct to the attorney’s rules of professional liability. If this person is not, then in many jurisdictions, the plaintiff’s attorney is then may have commitment To report this attorney to the bar in his state.
DC Code of Conduct: Rule 8.3 – Reporting of Professional Misconduct
(a) An attorney who knows that another attorney has committed a violation of the Code of Professional Conduct which raises a material question about the attorney’s integrity, reliability, or suitability to act as an attorney in other respects shall report it to the appropriate professional authority.
Hence, because these attorneys do not deal with individual clients and are, let’s face it, part of the agency, they may lack professional independence in handling litigation. A number of these attorneys may genuinely believe that the following agency protocol protects them from professional liability issues. Nothing could be further from the truth. A simple and justified reminder is not a threat.