The Teaching of Professional Responsibility to Federal Government Attorneys: The Uneasy Perceptions

• Author: Captain William R. Robie
• Pages: 02

The ethzcal responszbilitzes of lawyers tn federal service dzffer signifteantly zn certain respects from those of ottorneys in private pactwe. In this article Captain Robie deals with the problem of makzng federal attorneys awareof these differences.

Captain Robie briefly ~evtezc8 the Federal Ethical Considerations, a set of standards developed zn 1975 by the Federal Bar Association to implement withzn government service the canons of the American Bar Association's Code of Professional Responszbility, promulgated effectwe 1 January 1.970. The author discusses a dilemma peculiar to federal attorneys, that of whether one's clzent is the particular official whom one is advising, 07 the entire agency OT the government os a whole, OP perhaps none ofthese. bat the pubhe interest in general, however defined.

The author nert surueys three subject-matter areas of mstmetion in professional reapansibility. The first of these areas eovell~ ethical standards that apply to all goaernment employees, nonlazcyers as well as lawyers. Trozning in thts ama has been conducted primarily by the Office of the General Counsel of the Civil Seruiee Commzsston

The second affects federal attorneys who repyesent other government employees a8 individuals, a8 defense

counsel before cou7ts-martial 07 admtntstratwe board proceedzngs or as legal assistonee officers. This aeeond area also zscludes attorneys who act a8 prosecutors. In-struction ts earned out by The Judge Advocate Geneml's School, U.S A m y , at Charlotteeville, Vwginia, and by other simzlar instttutio-ns

The thvd and last area eaneein~ responsibtlities of federal attorneys %ho provtde legal advice wzthin goo-ernment agencies, ~n like mannwr uith corporation counsel tn the private sector This 1s the area tn whzeh the dilemma posed above arises most frequently and most sharply. However, of the three areas, this one has been most neglected. ond the Legal Education Institute of the Cml Service Com,mission has been the agency most ac-ttve in dlsseninatzrig infOmation to federal aftorxeys in need ofzt.

Captazn Robie describes the lar ria us methods of in-stmction used by the Institute. This includes i7iteQratiOR of matrnal on professional responszbility mth other ma-tend in general onentatzon courses, the seep-down approach. in whteh professional responsibility instruction 2s m r e d with the material of substantive law courses ofall types; and the separate COUTL~

approach, in which professtonal responsibility is eonszdered by Itself, separately from other matertal. From his practical expeneiiee toorktng for the Institute. the author concludes that the separate-course approach is best of the three from a pedagogical pomt of uirs, but that the integrated and seep-dolrn approaches tend to be far mow popular wth praspeetzue students He eardudes also that, although the Federal Ethzeal Coiiszderatwns can be helpful in resolu-UXQ the dilenimas faced by federal attorneys, nemrtheless them is still need for clanfifieation of the relattonshsp between fhe federal attorney and the agency for which he

07 she xorks

1. THE SUBSTANTIVE DILEMMA"The ultimate client, if not the only client of the government attorney, is the advancement of the common good."

John R. Risher, Jr.'

lRtaher Sproha 018 Lego! Elhica. Ca!la lo/ Deciaiona o/ Conacirrce," 16 THE

19181 TEACHING PROFESSIONAL RESPONSIBILITY

"[Tlhe administrator who the lawyer advises . . . is the real client." F. Trowbridge von Baur

The problems inherent in attempting to instruct federal gavernment attorneys (and by analogy, state and local government attor-neys also) are epitomized by these two conflicting statements. Determining what professional ethical standards, if any, federal government attorneys must adhere to is the primary problem faced by those seeking to develop and provide instruction an professional responsibility to federal government attorneys. That problem 1s compounded by the lack of certainty as to who is the client that most federal government attorneys, military as well a8 civilian, are supposed to repre~ent.~

Private practitioners are generally admitted to practice in one or more State jurisdictions (including the District af Columbia and the territories) where the American Bar Association's Code of Prafessional Responsibility (CPR) haa been adopted albeit nith variations. Each state's version of the Code nerve8 as a formal ethical guide and aa a disciplinary tool for attorneys admitted to practice in that state.

Federal government attorneys u ho hold attorney positions (ordinarily in the GS-906 classification series) must be admitted to practice m a state, territory, or the District of Columbia, and must remain members in good standing of the bar of that jurisdiction in order to maintain their government jabs.' Therefore, each federal attorney is technically guided by the CPR a8 adopted in his or her state of bar admission with regard to his or her ethical conduct. The CPR, however, addresses only a limited number of ethical situations that a government attorney might face. Although the Code indicates in ita Preamble that "not every situation . . . can be foreseen, but fundamental ethical principles are always present to guide"J each attorney, the Code has not elearly identified the

FORUX (Newsletter oithe Dist~icf of Calurnbin Chsoter. Federal BPI Assoclsfmn)

principles which apply in areas of considerable concern to federal attorneys.

When the present Code became effective for all American Bar Aa-sociation members on January 1, 1970, a number of members of the Federal Bar Association (FBA) concluded that the ethical eonsiderations included rvith the Code "appeared to have been drawn principally with a view toward the problems of the lawyer in private practice." The FBA National Council in September 1970, directed a thorough study of the question of ethical guidelines under the Code as they applied to the federal attorney. That study resulted ina preliminary report, completed during 1971. Then, in October 1971,the FBA's Committee on Professional Ethics 'was directed by FBA President C. Normand Poirier to begin an analysis of each canon as it applied to federal government lawyers.8

At the same time, President Poirier submitted to the Committee three questions to be answered in a formal committee opinion. The three questions were:

RESPUNS~BLL~T~

Ethics. SO A B A J 1641 (1914) Special note should be made of the impetus given Io the ahole qmstian af ethical concerns of government attorneys by FBA President C Narmsnd Polrier (1911.1972) Ha efforts ~n beeklng to elanf? fhls important zma. before Watergate ever occurred, are I" large measure reipansible for the Iimlted guidance available fa federni ~ftorneyi todsg'Id The Committee ua8 chaired b? the Hanorsble Charlar Fahy, senior elrmit judge of the U.S Court of Appeals far the D~striei of Columbia Circuit'F B A. Prolesalonnl Ethics Comm. The Gaiwnnenl Client and Confidrniia?ify

opinlDnis-I a2 F B J 71 (1973)

Whlih perm>( 01 no cm'prrrn>,*ABA CODE OP P ~ o ~ c s s l o a ~ ~

AID CODE OF JUDICIAL COXDUCT

at IC (1916).'Pairier. The Federal Governman1 Lauyrr orid Pi~fessm~al

19781 TEACHING PROFESSIONAL RESPONSIBILITY

1. Under what circumstances may B federally employed lawyer disclose information concerning a government official of any rank which would reveal corrupt, illegal, or grossly negligent conduct? 2. If disclosure may be properly made, to whom may it be made? 3. Who is the client of a government attorney in the executive or legislative branches of government?

A proposed opinion mas completed in June 1972, and was circulated u,idely within the legal community of the federal government and within the Federal Bar Association.

Likewise, the Committee completed a preliminary draft af the additional ethical considerations in July 1972, and circulated that draft widely. After considerable redrafting of both the opinion and the ethical considerations, the Committee issued the opinion, titled "The Government Client and Confidentiality: Opinion 73-1," in early 1973. Subsequently, on November 17, 1973, the National Council of the Federal Bar Association formally adapted the Federal Ethical Considerations.ns.Io

The Federal Ethical considerations recognized that all nine canons of the ABA Code of Professional Responsibility had some application to the particular circumstances faced by the federal lawyer in his legal work."

With regard to Canons 1,La2,'aand 9,14 the ethical considerations

'Polrier. 8uupra note 5, st 16411°The8e are Canons 1. A Lsw)er Should Assist ~n Maintaining the intepty and Competence ai the Legal Profession: 2, A L8wy.1. Should Assist lhe Legal Profession m Fulfilling Its Duty to Make Legnl Counsel Available; 3, A Lawyer Should Amkt in Preventing the Unauthorized Pmfiee of Law, 4, A Lawyer Should Preaerve the...