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 and waivers.

  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 bias 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) tenures.
  
  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 theoretically possible.