The government client: when can an individual be represented by the Department of Justice?

July 19, 2011

Undoubtedly the recent revelations regarding “Operation Fast and Furious” conducted by the Bureau of Alcohol, Tobacco, and Firearms raises a whole host of legal issues.  But one in particular that surfaced in a new report the other day sparked my interest. 

A piece in the Washington Times on July 6th contained this snippet:

In the letter Tuesday to Mr. Holder, Mr. Grassley and Mr. Issa said they were “disappointed” that the Justice Department failed to tell Mr. Melson he had the right to choose a voluntary interview rather than participate with counsel representing the department’s interests.

Now to me, this poses that classic law school professional responsibility query:  Who is the client?  When a Department of Justice lawyer represents the head of a government agency at a Congressional hearing, who is the client?  Is it the administration at whose pleasure the attorney serves, the DOJ, the ATF, or the individual himself?

Turning to a quick plain language search of All Federal materials on WestlawNext,

client of federal government attorney (14)
Content: Overview
Jurisdiction: All Federal

 perhaps the most interesting guidance comes from the CFR.

 Attorneys employed by any component of the Department of Justice who participate in any process utilized for the purpose of determining whether the Department should provide representation to a federal employee, undertake a full and traditional attorney-client relationship with the employee with respect to application of the attorney-client privilege.    

28 C.F.R. § 50.15(a)(3).

 Under the circumstances described in section 50.15, where a government official has been “sued, subpoenaed, or charged in his individual capacity” and “when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States,” the individual is the client.  So Ken Melson, acting director of the ATF would be the client in a hearing before Congress.

But what if Melson is ultimately determined to be the one responsible and he now faces criminal charges stemming from this program?  Again, section 50.15 provides an answer, but it doesn’t really lay the question to rest.

Representation generally is not available in federal criminal proceedings. Representation may be provided to a federal employee in connection with a federal criminal proceeding only where the Attorney General or his designee determines that representation is in the interest of the United States and subject to applicable limitations of § 50.16. In determining whether representation in a federal criminal proceeding is in the interest of the United States, the Attorney General or his designee shall consider, among other factors, the relevance of any non-prosecutorial interests of the United States, the importance of the interests implicated, the Department’s ability to protect those interests through other means, and the likelihood of a conflict of interest between the Department’s prosecutorial and representational responsibilities. If representation is authorized, the Attorney General or his designee also may determine whether representation by Department attorneys, retention of private counsel at federal expense, or reimbursement to the employee of private counsel fees is most appropriate under the circumstances.

28 C.F.R. 50.15(a)(4)

If the prosecuting division indicates that the employee is the subject of a federal criminal investigation concerning the act or acts for which he seeks representation, the litigating division shall inform the employee that no representation by Justice Department attorneys will be provided in that federal criminal proceeding or in any related civil, congressional, or state criminal proceeding. In such a case, however, the litigating division, in its discretion, may provide a private attorney to the employee at federal expense under the procedures of § 50.16, or provide reimbursement to employees for private attorney fees incurred in connection with such related civil, congressional, or state criminal proceeding, provided no decision has been made to seek an indictment or file an information against the employee.

28 C.F.R. 50.15(a)(8)

The Department can’t represent an individual it knows it intends to prosecute.  But what if it doesn’t know and the Congressional hearing provides the impetus for the charges?  That opens a whole new can of worms.

All in all, with so many questions and problems swirling around this issue, if I were in Melson’s shoes, I think I’d be giving a long hard look at 28 C.F.R. 50.16 – Representation of Federal employees by private counsel at Federal expense.