Before the series of arbitrary budget cuts known as the “sequester” dropped, I made a few predictions for how this fiscal debacle would affect the legal profession. Now, a few weeks into this policy, we have a couple of real life impacts to talk about.
First, if you’re a lawyer for a government agency, surprise! You may not be able to ethically defend your agency against furlough appeals.
Second, some administrative law judges have been grounded. In the context of the Labor Department claims, that means claimants are having their trials undermined if not outright halted by the sequester….
When the federal government starts issuing employee furloughs, like the Department of Defense furloughs scheduled for later this week, the employees have the right to appeal the decision to send them packing. Unfortunately, the agency handling those appeals might be no match for an event of this magnitude:
If Congress doesn’t reverse the dreaded automatic spending cuts scheduled to begin taking effect March 1, hundreds of thousands of federal employees could be furloughed on and off for the rest of the fiscal year. Furloughed employees can appeal those personnel decisions to the Merit Systems Protection Board, an independent, quasi-judicial agency in the executive branch with just 203 employees in Washington and in eight regional offices across the country.
“We don’t know if it’s going to be a whole dam breaking down, or just a trickle,” said MSPB Executive Director Jim Eisenmann, of the number of complaints employees could file appealing their furloughs. “We just don’t know.”
Around 203 employees addressing, possibly, hundreds of thousands of cases. That’s sounds like a recipe for disaster.
And the problems might run deeper than the MSPB. Saul Singer, Senior Legal Ethics Counsel for the D.C. Bar, explains that individual lawyers need to consider whether representing their agencies in furlough appeals presents a conflict of interest. Rule 1.7(b)(4) of the D.C. Rules of Professional conduct states that a lawyer shall not represent a client where:
The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
Not all agency attorneys will be subject to furlough, but for those that are, arguing that your co-worker should get 86ed knowing that the agency can turn around and use your own arguments against you seems to run counter to a “lawyer’s own financial, business, property, or personal interests.” While Mr. Singer cannot opine on hypotheticals, and the D.C. Bar has not issued a formal opinion on this matter, Rule 1.7(b)(4) certainly suggests a potential conflict — one that could only be waived with the informed consent of all parties (Rule 1.7(c)(1)), and the individual lawyer deciding that he or she is fully capable of looking past the potentially personal impact of his arguments (Rule 1.7(c)(2)).
Thankfully with the MSPB underwater, attorneys would have plenty of time to mull this over.
The Labor Department’s Office of Administrative Law Judges informed attorneys that sequestration grounded its San Francisco office for the rest of the year. As a practical matter, this suspends all pending matters in the offices covered by ALJs from the San Francisco office, including, for example, Seattle. With Seattle claims halted by sequestration, those with Labor Department claims in Seattle must either sit tight or travel at their own expense to San Francisco, a move that limits their access to corroborating witnesses. Moreover, since employers must also consent to travel to San Francisco, the prospect of any movement on these claims is realistically halted.
With no threat of trial, there’s no need to pursue settlement negotiations. Without passing on the merits of every claim before the Labor Department, at least some of these claimants are grievously injured and the practical realities of the sequester slam the door to their legal redress. And from a less important, but purely self-interested perspective, it robs lawyers of needed work.
The sequester marches on, leaving more problems for the legal industry in its wake.
MSPB Braces for Possible Flood of Furlough Appeals [Government Executive]