Conflicts of Interest
This page might be just academic theory. One Chicago attorney defined conflicts as where his firm "wins either way." Neither the MSPB nor Federal Circuit has ever disciplined any attorney for a conflict of interest.
Solo meetings and attorney conflicts
Attorneys meeting alone with the agency representatives,
without the client, have potential conflicts
of interests. Many are not even mentioned
to clients, nor clear until much later. Client
presence at such initial meetings can correct
disinformation and lead to an acceptable
settlement offer. A less-ethical attorney
may prefer a longer time frame and more billable
hours, or simply not know the case well enough
to secure a client-favorable settlement offer.
Often, the client's resolve and negotiating
position erodes with time and a hostile working
environment. Client-less meetings mean attorney
information control, which at worst can mean
both embellished accounts of his or her own
performance at the meeting and dependence
on attorney-censored information. Agency
or employer representatives may infer a lack
of belief in the client's cause, emotional
stability or integrity. Some personnel officers
encourage client-less meetings, perhaps refusing
to meet with the client who is known to have
an attorney, especially if that attorney
has a well-known settlement bias or reputation
for carelessness. An attorney who justifies
client-less meetings by expressing a need
to hear the "other" or "real"
or "supervisor's" "side of
the story" is at best paternalistic,
and probably doesn't care enough to allow
the employee to rebut misinformation. Especially
if the attorney hides or denies the conflict,
future problems are likely.
Conflicts of interest with other clients
Two other common conflicts of interest arise
more often in small communities than metropolitan
areas. Attorneys commonly run a "conflicts
check" within their office before accepting
a case. Ethical attorneys will not accept
a new and potentially conflicting client
without getting the first client's consent.
Not to do so is an ethical problem which
can lead to attorney malpractice charges
or professional discipline. Where an attorney
was previously an employee of the particular
agency, disclosure is recommended. The client
may then choose between the attorney's experience
and his doubts about other loyalties, although
disclosure assuages doubts and notes can
be warranted. Potential clients can do some
preliminary research in the legal databases
noted above, to avoid disclosing these private matters
to an attorney with an actual or apparent
conflict of interest. An attorney who knows
about a conflict of interest, for example,
representing two clients with the same employer,
may request a conflicts waiver. The waiver
may enable the client to hire an attorney
with a much shorter learning curve (which
may benefit the employee or be the least
the serious type of conflict). Serious problems
arise if one of the clients is accused of
doing something wrong and the other is not.
The latter employee might well be advised
to find a different attorney. At the very
least, he or she would be advised to take
notes about timetable alterations, requests either
for silence or testimony, and settlement offers
conveyed or not conveyed.
Judicial conflicts of interest.
Judicial conflicts of interest based on
or financial interest can lead to disqualification.
To avoid that result, and increase public
confidence in judges' impartiality, the
Federal Judicial Center publishes biographies of all full-fledged
U.S. District Judges and U.S. Circuit Judges.
Also, the Office of Government Ethics makes their financial disclosure forms available.
Their financial disqualification in personnel
cases (unlike business cases that can affect
stock portfolios) is unlikely despite most
judges' sensitivity to even appearances of
impropriety -- because the Constitution ensures
judicial independence by mandating that judges'
pay not decrease during their (lifetime)
The MSPB is different. It keeps the biographies
of all its employees (including those re-titled"administrative judges" two
decades ago) confidential. Thus, petitioners will
not know either the AJ's record nor background.
The MSPB also does not forward AJs' financial
disclosure forms to the OGE for public disclosure,
citing their low rank. Complaints about AJ
bias are generally ignored at the PFR level.
The MSPB conclusively presumes its employees'
impartiality, rather than address the appearance
of impropriety. Anyway, the persistent complaints
may be a negative side-effect of both the
MSPB's decision to award performance bonuses,
and of most AJs' tenure predating the 1994
legislative reforms of the WPA. The bonus
policy means that an AJ's compensation can
decrease if he or she spends too much time
on whistleblower adjudications (usually the
most difficult assignments), hence the plethora
of quick dismissals and forced settlements.
Still, self-disqualification by an AJ is