In all the press reports about government giveaways, bailouts, willful nonenforcement of the laws and other contradictions of the public trust, little is written about the government lawyer. What standards of competence and ethics should apply to attorneys for these agencies, departments and commissions? Who is the client of these attorneys?
First, let us start with the assumption that among the thousands of attorneys in the government service, there area number of incompetent or venal ones whose slippery work product leads to harm upon innocent citizens or waste of public monies. In the private marketplace, clients can sue lawyers for malpractice and collect compensation. Victims of medical malpractice by Veterans Administration hospital physicians can sue to secure compensation for their injuries and wage loss. Why not the same remedy for government attorneys? People are denied benefits, afflicted with economic costs or hazardous conditions when incompetent or reckless lawyers are at work.
I could not locate anyone in Washington who has ever heard of a malpractice claim even being filed against a government attorney. Yet government lawyers have “thrown” cases, have missed statues of limitations, have unduly harassed or made citizens vulnerable in such diverse cases as workplace safety non‑ enforcement, IRS persecutions, product defect recall cases — to name a few of many all too frequent instances.
Government attorneys also come under the disciplinary rules that apply to all attorneys. Violations of lawyers canons of ethics are supposed to be pursued by state bar associations, state courts or, more recently in California, an independent board. Disciplinary action can be imposed by the courts after a valid case is made by the established procedures under the various states and federal courts.
Since government attorneys remain “officers of the court” and members of the state and federal bars, they cannot plead immunity because they are in government service. Like other government employees, they are expected to abide by the Code of Ethics for United States Government Service which declares: “Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.”
For government attorneys to simply state that their client is the agency, their superior, or the President, instead of to the law and the public interest, is to redraft the old excuse of “I just work here, following orders.”
Consider the recent sweetheart agreements made by a federal banking agency in December 1988 regarding failed Savings and Loans. These agreements were signed with billionaires who smelled one golden deal after another where the government sold them the banks’ assets for about 3 cents of their investment on each dollar of assets. All liabilities indefinitely into the future were then assumed by the federal government — meaning you the taxpayers. Billions of dollars were involved in these very secret deals.
Now it turns out that these deals will cost much more than the officials had estimated and that there were no provisions for the taxpayers to share in any subsequent profits by these reconstituted banks. The billionaire investors more than doubled their investment in the first six to nine months of their taking over.
Lawyers who participated in these agreements were engaging in monumental malpractice and violating the canons, of ethics of the bar, in my judgment. They should have refused to participate, as some lawyers refused in certain cases in the Justice Department under Reagan.
If prisoners can sue their jailers for brutality or citizens can sue police for unjustified harm to them, they why can’t citizens sue government lawyers for white collar violations? The answer is that they do not have “legal standing” to sue, say more and more federal judges appointed by Reagan-Bush. That would seem to leave only the pertinent bar association and the courts with approved access to sue or discipline respectively.
Certainly, a higher level of public expectation directed toward government attorneys will help provide the environment for the first such case to be brought.