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Attorney Quality Control

Quality control self-help

Because neither the MSPB nor Federal Circuit really ever discipline attorneys based on unhappy employee clients, this is a buyer-beware situation. Most whistleblower plaintiffs lose, so happy word-of-mouth referrals are relatively rare. Plus, most want confidentiality. Another problem is that except for union members covered by a prepaid legal services plan, many employees get referred to an attorney by another employee in the retaliating agency.

Quality control issues abound. The MSPB has several times refused to allow employees relief based on an attorney's or representative's mistake or bad practice. The Board reasons that the employee could have fired the attorney or representative, which ignores the real informational and power divergences. No one wants to hear that hiring an attorney was worse than useless (and every attorney would contest that characterization). Still, some attorneys are lazy, careless or incompetent; others are overwhelmed. While a non-attorney representative may be less expensive, the MSPB will never cut the employee a break based on his lack of legal knowledge, disregard of applicable deadlines, or failure to follow the correct procedures to the letter. The MSPB is not consumer-oriented. Some, but not all, bar regulatory agencies may hold attorneys to higher professional standards.

Conflicts of interest

Conflicts of interest happen when what is in the attorney's personal advantage, or the best interest of one client, is not in the best interest of another client. This discussion may be academic--the MSPB and Federal Circuit have never disciplined any attorney for a conflict of interest. Still, many professional ethics courses discuss conflicts of interest. The basic rule is that the client can waive a conflict of interest. While before-the-fact disclosures are favored in academic literature, the practice allows waiver based on misleading or after-the-fact disclosures. Hence, the notes advice applies here too. Click for a more detailed discussion.

Checking and comparing after the interview

Comparison allows valuable perspective. It educates the client about both the attorney's expertise and strengths and weaknesses of the client's case. Clearly, if one attorney knows deadlines which may be applicable to a particular case and another does not, the first attorney may have more valuable expertise. Similarly, a client deserves to know sooner (rather than after incurring several months of attorney fees) if an attorney thinks his or her case economically not worth pursuing, or if the attorney needs extensive legal research to get up to speed (and will charge for that learning curve). Another checklist is at

  • Checking citations and references. Any satisfied clients or business contacts which the attorney cites as references can be checked. Also, while an attorney's cites of legal precedents at first can sound like name-dropping, many can be checked to see if the facts seem similar to this case. Some links are to the right. Beware that success in the qui tam lawsuit area may not be transferable to a government employee case, because government employee disclosures rarely qualify under the False Claims Act and because district courts are unlike the MSPB/Federal Circuit structure.
  • Bigger is not always better. Sloppy or lazy representation is not a function of firm size. Logic suggests that the biggest law firm in town or that specializes in employment law did not grow by poor service. Still, they might have grown through long-term customers like unions, while whistleblower employees are often individuals. The "big name" from even five years ago may be retired or with another firm, or may actually devote attention to a small fraction of his or her cases. Some large firms have lawyers who specialize in assisting corporate clients get rid of whistleblowers, who may not realize nor care about their possible bias against whistleblowers. Plus, some bigger employment law firms have realized that no-questions-asked settlements can be more profitable than litigation. On the other hand, law firms are constantly changing, and solo practitioners do have the highest malpractice claim rate.
  • Coyness and vagueness. Remember you are paying the attorney to learn about all options and consequences, to receive disinterested advice not silence. As much as the client wants to trust the attorney's competence and zeal, vagueness or coyness often worsen. Knocking out litigation early by discussing only settlement as an option may indicate that the attorney is overbooked or lazy. Promises about a quick settlement are often just hot air. An attorney's policy counseling silence to law enforcement from the start, not only disparages the whistleblowing. It also may well hurt both his whistleblower client's career and spirit.


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