In Jones v. Small Business Administration, MSPB Docket No. SF-1221-11-0237-W-6 (March 18, 2014), the MSPB issued a decision indicating that in many cases, supervisors and managers in the federal government should not expect that what they share with their agency’s attorneys will be kept in confidence. In fact, information that a manager shares with an agency attorney, even if she believes the attorney is representing her personally, may be used against her in future proceedings.
Jones was a supervisor in the Small Business Administration. She had been named as a responsible management official in an EEO complaint against the agency. Jones believed that the EEO complaint was directed at her personally, and that the agency’s attorney would defend both her and the agency against the accusations. Jones said that she disclosed confidential information to the agency attorney thinking he was her representative, including some information that could be considered whistleblowing.
When Jones later filed an appeal with the MSPB alleging that those same whistleblower disclosures she had shared with her attorney ultimately led to three unlawful personnel actions, the agency assigned to Jones’s case the very attorney who had earlier worked with her in the EEO matter. Jones filed a motion to have the attorney disqualified from representing the agency due to a conflict of interest – she had made confidential disclosures to the attorney which she did not want to be used against her in her MSPB appeal.
The MSPB reviewed the pertinent state rules of attorney conduct and found that the agency attorney should not be disqualified from representing the agency against Jones in her MSPB appeal. The Board reasoned that an attorney was only disqualified from representing a party adverse to a former client, and that Jones was not a former client.
Even though Jones believed that the agency attorney was representing both her personal interests and the agency in the EEO case, the Board found that this was not a reasonable belief. The Board found that the agency attorney had never told Jones he would keep her communications confidential from agency management, for whom they both worked, or that he would represent her even if her interests conflicted with those of the agency. The Board therefore refused to disqualify the agency attorney from representation in the MPSB appeal.
This case should give all federal supervisors and managers pause before they share anything with agency counsel that want kept confidential. Employees are well advised to seek out their own legal representation whenever they become involved in legal proceedings based on their own actions.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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