Quality control self-help
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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 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
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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 halt.org.
- 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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Contents
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