Government Attorneys' Participation as in a Suit Against the Office of Personnel Management

Government Attorneys* Participation as Plaintiffs
in a Suit Against the Office of Personnel Management

A ssistant U nited States A ttorneys (A U SA s) a re not barred by 18 U.S.C. §205 from
participating as plaintiffs in a class action suit challenging the authority o f the O ffice o f
Personnel M anagem ent (O P M ) to reduce th e cost o f living allow ance paid to all
federal em ployees in Alaska, though they m ay not accept any com pensation for
assisting in prosecuting the claim s o f the class o r act as agents o r attorneys for the
class.

T h e A U S A ’s d u ty o f loyalty to a client u n d e r applicable standards o f professional
c o n d u c t does not preclude his joining a suit against O P M , but he should avoid taking
an active o r notorious role in th e litigation.

March 9, 1981

M EM ORAN DUM O PIN IO N FO R A N A SSISTA N T U N IT ED
STA TES A TTORNEY , D IST R IC T O F ALASKA

This responds to your request for our opinion concerning the profes­
sional propriety o f Assistant United States Attorneys (AUSAs) partici­
pating as plaintiffs in a class action lawsuit against the Office of Person­
nel Management (OPM). W e understand that the suit would involve the
authority o f OPM to reduce the cost-of-living allowance paid to all
federal employees in Alaska. You have advised us that none of the
plaintiff AUSAs has any privileged government information that is
relevant to the lawsuit, and that no government employee will act as
agent or attorney for the plaintiff class. Under those circumstances, we
conclude that the AUSAs may properly participate as members o f the
plaintiff class. However, w e must advise you to avoid taking an active
o r notorious role in organizing or conducting the litigation, and to
refuse any compensation for assisting in the lawsuit.1
T he pertinent conflict o f interest statute is 18 U.S.C. §205. Section
205 contains two restrictions that will apply to your situation. (1) It
prohibits Executive Branch employees from receiving any gratuity,

1 W e recognize that these restrictions may make it impossible for you to serve as class representa­
tives in the lawsuit. Since you have indicated that you do not intend to serve as class representatives,
we need not explore this possibility further.

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share, or interest in any claim 2 against the United States in consider­
ation for assistance in the prosecution of the claim, and (2) it prohibits
Executive Branch employees from acting as agent or attorney for
anyone3 in connection with any particular matter in which the United
States is a party. The first clause of the statute prohibits you from
accepting any compensation-;for assisting in prosecuting the claims of
the class. The second clause of the statute prohibits you from serving as
agents or attorneys for the class.4 Generally, this is interpreted to
prohibit representational activity such as appearances in court, signing
pleadings or letters, and direct contact with a federal agency on behalf
of the class. Should you desire a more detailed explanation of the
meaning and scope of the statutory term “act as agent or attorney,”
you should consult Manning, supra at p. 83, and 5 C.F.R. 737.5(b) (1)
and (2).
In addition to the statutory restrictions, your professional responsibil­
ities to a client agency may also constrain your activities in connection
with the lawsuit. The Justice Department’s Standards of Conduct incor­
porate by reference the Code o f Professional Responsibility of the
American Bar Association (Code). See 28 C.F.R. 45.735-1. The Code
contains several principles that limit the activities that lawyers may
undertake to the detriment of their clients.5
Canon 4 of the Code prohibits a lawyer from using a confidence or
secret of a client to the disadvantage of the client. DR 4 - 101(B)(2).
Canon 5 exhorts lawyers to avoid compromising influences and loyal­
ties, including personal interests that may dilute their loyalty to their
clients. See EC 5-1. Ordinarily, the principles of loyalty and confiden­
tiality embodied in Canons 4 and 5 preclude a lawyer from acting as an
advocate against a client, even if the litigation is wholly unrelated. For
example, a lawyer should not ordinarily agree to represent someone in
a tort action against a person for whom he is preparing an estate plan.
There are, however, circumstances where a lawyer may act as advo­
cate against a client. The discussion draft of the ABA’s proposed

2 We do not have sufficient information to determine w hether your anticipated lawsuit would
constitute a “claim'* against the United States. The term is not defined in the conflict of interest
statute, but there is little doubt that the term covers at least suits seeking direct monetary relief from
the United States. F or a discussion of the possible breadth of the term, see Manning, Federal Conflict
of Interest Law (1964) at pp. 85-88 We will assume hereafter that your lawsuit constitutes a claim
within the meaning o f the statute.
3 In the past, this Office has taken'the position that §205 does not prohibit self-representation.
However, in a suit, such as a class action, where there are multiple parties with claims that are
virtually identical to the employee's claim, we read the statute to preclude the employee from
participating as agent or attorney
4There is an exception to this prohibition for “ personnel administration proceedings,’* but we need
not determine whether your case would fit that exception because you do not intend to serve as agents
or attorneys.
5 For these purposes, you should consider OPM to be your “client,” since your Office represents
OPM on a continuing basis. We understand that, with one exception, all of the AUSAs in your Office
handle civil cases for the client agencies

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revision o f its standards o f conduct describes one situation where a
law yer might properly sue his client:
F o r example, a law yer engaged in a suit against a large
corporation with diverse operations may accept employ­
ment by the corporation in an unrelated matter if doing so
will not affect the law yer’s conduct of the suit and if both
the litigant and the corporation consent upon adequate
disclosure. Whether concurrent representation is proper
can depend on the nature of the litigation. For example, a
suit charging fraud entails conflict to a degree not in­
volved in a suit for a declaratory judgment concerning
statutory interpretation.
D raft dated January 30, 1980, at p. 29. Another situation is recognized
explicitly in the current C ode—the suit by a lawyer to collect his fee.
See D R 4 - 101(C)(4). In our view, the same considerations would make
it proper for a government lawyer to sue his client/employer over
conditions of employment.6 Accordingly, we conclude that you may be
members of a plaintiff class in an action against OPM concerning the
level of the cost-of-living allowance.
A lthough your duty o f client loyalty will not prevent you from
joining a suit against OPM, we do believe that it should caution you
against taking an active or notorious role in the litigation. In particular,
you should avoid organizing or encouraging others to join the suit or to
bring similar suits against your client. Finally, your Office should take
steps to ensure that OPM is adequately represented in the lawsuit by
other D epartm ent of Justice counsel.

L arry L . S im m s
Acting Assistant Attorney General
Office o f Legal Counsel

eCongress has provided for suits by federal employees against their federal employer in a variety of
ntexts. See,
contexts. See. e.g..
e.Q.. 42 U.S.C. §2000e-16.
8 2000e-16.

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