Representation of Government Employees in Cases Where

Their Interests Diverge from Those of the United States

T h e A tto rn ey G eneral is authorized to represent the personal interests o f governm ent 

em ployees sued in their official capacities if it w ill serve the interests o f the U nited 

States.

E ven if adequate representation o f an em ployee’s personal interests in a law suit requires 

the m aking o f an argum ent that conflicts w ith a governm ental position, such representation m ay still serve the interests o f the U nited States.

W here th e personal interests o f em ployee-defendants conflict w ith th e interests o f the 

U nited States, as w ould be the case if th ey w ere to ad v an ce an argum ent that w ould 

support a claim against the U nited States, it w ould be in appropriate for the A ttorney 

G en eral eith er to represent them directly o r to finance their representation by private 

counsel.

If th e personal interests o f em ployee-defendants potentially conflict w ith the interests o f 

th e U nited States, the A tto rn ey G eneral m ay still represent them , if they w ish him to 

d o so, w ithout im plicating the ethical rule against representing differing interests o f 

m ultiple clients.

March 27, 1980

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY 

GENERAL, CIVIL DIVISION

You have requested our views on two representation questions that 

arose on appeal in a civil case in the Seventh Circuit, Hampton, et al. v. 

Hanrahah, et al.. No. 77-1698.* We gave you oral advice with respect 

to both questions. This memorandum sets out our thinking in greater 

detail.

At the trial, the Department of Justice (DOJ) represented three 

federal defendants, all of them agents or former agents of the Federal 

Bureau of Investigation (FBI) who are accused of having assisted the 

State of Illinois in a lethal and allegedly unlawful “raid” against Black 

Panthers in Chicago in 1969. DOJ defended the case on the merits, 

won a directed verdict at the close of the plaintiffs’ evidence, and 

suffered a reversal on appeal when the Seventh Circuit remanded the 

case for a new trial. The Seventh Circuit held that the plaintiffs’ 

evidence was sufficient to go to the jury.

• N o t e : The court of appeals decision in Hampton v. Hanrahan is reported at 600 F.2d 600 (7th Cir. 

1979). Ed.

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If the Seventh Circuit had simply remanded the case, no representation problem would have arisen. The Civil Division believes that the 

case is clearly one in which it is necessary and proper under our 

Representation Guidelines 1 for the government to provide a defense on 

the merits. In connection with the remand, however, the Seventh 

Circuit entered an order making an impressive award to the plaintiffs 

(in the amount of $90,000 plus) for attorney fees incurred by them in 

connection with the appeal; and in its order the court seemed to say 

that the award would be collected, not from the defendants personally, 

but from the State of Illinois and the United States (the United States 

paying one-third of the total). We note in passing that the United States 

is not a party to this action, although the federal defendants have 

apparently been sued in their “official” as well as their “personal” 

capacities.

The representation problem arises because (1) this Department has 

traditionally taken the position that the United States cannot be required to pay attorney fees under the statute upon which the Seventh 

Circuit relied, 42 U.S.C. § 1988, and (2) the defendants may perceive 

that it is in their interest to support the contrary view. In other words, 

to reduce their own liability or potential liability, they may wish to 

argue that the fee award may be collected from the United States.

Because of the possibility of a conflict between the government’s 

position and the position the defendants may wish to take with regard 

to the fee award issue, the Civil Division has advised the defendants 

that it may be necessary to make some alteration in the representation 

arrangement. In particular, the Civil Division has said: (1) that to 

vindicate the government’s interest, the United States will request the 

Seventh Circuit to clarify its order; (2) that the United States will 

pursue appropriate remedies in the Supreme Court if the Seventh Circuit refuses to abandon the position it seems to have taken with regard 

to the liability of the United States; (3) that the Department will 

represent the defendants with regard to all aspects of the case (arguing 

both that the directed verdict should have been allowed to stand and 

that fees were not properly awarded either against the defendants or 

against the United States) if the defendants will agree to representation 

on these terms, and will agree as well that the DOJ attorneys will be 

free to support the view that the fee award cannot in any event be 

taxed against the United States; (4) that the defendants should consult 

private counsel for advice as to how to proceed; and (5) that if they 

wish to pursue an argument contrary to the government’s position on 

the fee award issue, they must retain private counsel for that purpose.

1 See 28 C.F.R. § 50.15. A revised version of these guidelines exists but has not yet been printed in 

C.F.R. All references to the “Representation Guidelines" in this memorandum are references to the 

revised version. [N o t e : The revised Representation Guidelines were published in the Code of Federal 

Regulations in substantially unchanged form in 1982. Ed.]

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The Civil Division has advised the defendants that the Department 

cannot pay for legal services rendered by private counsel on their 

behalf in advancing arguments either in the Seventh Circuit or in the 

Supreme Court inconsistent with the government’s view that § 1988 

does not authorize awards against the United States.2

In the midst of this entangled state of affairs, you have requested our 

opinion on the following questions: First, is the Civil Division correct 

in its view that this Department has no authority to retain private 

counsel to argue in court on the defendants’ behalf that § 1988 authorizes fee awards against the United States? Second, assuming the defendants do not wish to pursue such an argument, would it be ethical for 

the Department to continue to represent them under the terms described in (3) above?

I.

In a series of recent opinions this Office has wrestled with the 

general question of the Attorney General’s authority to represent government employees in civil cases. Those opinions turn upon a number 

of considerations, but they proceed from one basic proposition: The 

general statutes that define the Attorney General’s litigation function 

(28 U.S.C. § 515 et seq.) authorize him to defend government employees 

against claims arising against them for conduct in the course of their 

employment, even in cases in which the relief sought by the claimant 

will not bind the Treasury of the United States or direct the officers of 

the United States in the performance of their duties. In other words, 

these general statutes authorize the Attorney General to defend the 

government employees against claims affecting their personal interests— 

i.e., claims against their property or against their liberty or reputations 

(e.g., state criminal prosecutions).

The rationale for this interpretation of the Attorney General’s function is straightforward: If an employee is sued personally for something 

he did or omitted to do in the course of his employment, the United 

States may well have an interest in establishing that his conduct was 

lawful and in relieving him of the expense of retaining an attorney, 

provided the act or omission of which he is accused was a normal and

2 The defendants may of course decide not to argue that the award may be collected from the 

United States. The legal support for such an argument is not ironclad, and in any case the defendants 

may conclude that they stand a better chance of defeating the award if they can show that it cannot 

be collected from a deep pocket, the Treasury of the United States. We cannot of course anticipate 

what the defendants may do or what advice they may receive from private counsel.

We note in passing that in some special circumstances the Civil Division, before making a final 

representation decision, finds it necessary to retain and pay private counsel to consult with the 

employee in question to determine whether or not there is in fact or law a conflict of interest that 

would preclude representation by this Department. This practice is reasonably incident to the Attorney General's basic litigation function, since to represent personal interests he must first determine 

whether they coincide with or diverge from the interests of the United States. It may be appropriate 

to follow this practice in the present case with regard to consultation by the defendants with private 

lawyers over the question of how they should proceed.

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necessary part of his job. In other words, the interests of the government and the personal interests of the employee may coincide. Accordingly, since the relevant statutes provide that the Attorney General 

may conduct any litigation in which the United States is “interested,” 

the Attorney General is authorized by statute to appear in proper cases 

to represent the personal interests of officers and employees who are 

sued in their personal capacities. Where private and public interests 

coincide, the representation of private interests is tantamount to representation of the interests of the United States.

This conception of the Attorney General’s function, which we reaffirm, is reflected in the Representation Guidelines. The Guidelines 

provide that, when a government officer or employee is sued personally 

for something he did or omitted to do in the course of his employment, 

the Attorney General will defend him, if it can be determined that a 

defense of his personal interests will serve the interests of the United 

States.

In the typical case, the Attorney General represents government 

employees through attorneys and assistants regularly employed in the 

Department or in the U.S. Attorneys’ Offices; but with increasing 

frequency in recent years the Attorney General has retained private 

lawyers to represent government employees. Why has this happened? 

The basic principles of personal representation are sound in theory, but 

they are not easy to follow in practice. Cases arise in which: (1) a 

decision regarding representation must be made before it is known 

whether the interests of the government coincide with the personal 

interests of the defendant; (2) conflicts among multiple personal interests 

make it awkward for this Department to represent them all; (3) an 

identity of interest between the government and an individual which is 

present at the outset of a case evaporates in the course of litigation; or

(4) a community of interest regarding core issues is disrupted by a 

divergence of interest regarding some peripheral point. As we understand it, the practice of retaining private lawyers to defend government 

employees arose as the Department attempted to deal justly and efficiently with these problem cases. The Guidelines provide that private 

counsel may be provided in lieu of government counsel in certain 

special cases in which representation by government counsel would be 

awkward. We need not discuss the phenomenon in its entirety. Instead, 

for purposes of analysis, we'will show why in some circumstances it 

does make sense for the Attorney General to discharge his representation function through private lawyers, and we will then consider the 

present case in its relation to the Revised Guidelines.

It is sometimes awkward from an institutional or professional standpoint for DOJ lawyers to provide personal representation for government employees, even though it is clear that representation of their 

interests will be in the interest of the United States. The best example

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of that sort of case is the one involving multiple federal defendants who 

have differing views regarding the relevant facts. It may well be that 

none of these views differs in a material way from the view (if any) that 

the “United States” would have on the subject if the United States 

were a party to the case; and the ultimate outcome sought by each of 

the defendants may be perfectly consistent with the interests of the 

United States. Nonetheless, because of the differences regarding the 

facts, it might be professionally awkward for one DOJ lawyer or any 

one group of DOJ lawyers to represent all of the defendants; in such 

cases this Office has taken the view that the Attorney General has 

“implied authority” to provide representation through a mechanism 

that will enable him to resolve the professional difficulty. In particular, 

using his general authority to contract for services necessary in the 

performance of his statutory functions, he can hire private lawyers to 

do indirectly what it would be awkward for DOJ lawyers to do 

directly.

A far more troubling class of cases in which private representation is 

sometimes provided are those in which it is clear that the personal 

interests of the employee-defendant actually diverge from the interests 

of the United States with regard to some material issue of fact or law 

involved in the litigation. This is the class of cases most directly 

relevant to your inquiry, and to that class we now turn.

Section 50.15(a)(10) of the Revised Guidelines contemplates that 

cases will arise in which “adequate” representation of the personal 

interests of a government employee may require “the making of an 

argument which conflicts with a governmental position.”* The Guidelines provide that, in such a case, the conflict between “the governmental position” and the “argument” to be made on the employee’s behalf 

need not prevent the Department from providing the employee with 

representation. It may yet be possible to determine that representation 

of the employee will serve the interests of the United States; and if that 

is the case, the Guidelines provide that the Department can do one of 

two things: (1) it can tender representation through a DOJ lawyer (if 

the employee, after being advised of the government’s conflicting position with regard to the “argument,” consents to representation on the 

government’s terms), or (2) it can provide representation through a 

private lawyer, who will represent the employee at government expense and make the argument that the government lawyer cannot 

make.

The problem lies with the second option. How can it be in the 

interest of the United States (and therefore within the province of the 

Attorney General under § 515 et seq.) to finance an argument in court

• N o te : A s published in the Code of Federal Regulations in 1982, the Representation Guidelines 

refer to “the assertion of a position that conflicts with the interests of the United States See 28

C.F.R. § 50.15(a)( 10) (1982). Ed.

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that is inconsistent with the position that the United States itself has 

taken or would take with respect to the matter in issue? For purposes 

of this memorandum, we will not attempt to answer that question in 

general terms. We are aware that in difficult and appealing circumstances, § 50.15(a)(10) has been invoked to provide government employees with private lawyers who have made arguments inconsistent with 

positions taken by the United States. But our most recent opinion on 

this subject suggests that it is not within the province of this Department to provide employees with representation directly or indirectly 

for the purpose of opposing the government itself in federal criminal 

proceedings, and we reasoned in that memorandum that providing a 

personal defense for an employee in a civil case is justified only to the 

extent that the defense is tantamount to a defense of the government 

itself. The Attorney General represents government employees, directly 

or indirectly, only to the extent that their interests coincide with the 

interests of the United States.

However the issue may be resolved in other contexts, the present 

case presents the issue in a most extreme setting. This case may well be 

distinguishable in a qualitative sense from a great many of the other 

cases in which the question can arise. Here we are being asked to 

decide not merely if this Department may finance a collateral argument 

that would differ in some respect from an argument the “United States” 

would make in pursuit of the same result or in defense of the same 

claim. Rather, we are being asked to decide that the Department may 

finance an argument that would be made in support of a claim against

the United States. That is what the Department would be doing if it 

provided private representation on the fee award issue. We would be 

paying a lawyer to argue either that the plaintiffs’ claim for fees under 

§ 1988 is good against the United States, or that the defendants themselves have a legal claim against the United States for indemnity, or 

contribution for fees taxed against them. It is purely a question of 

sovereign immunity: as between the defendants and the United States, 

who pays?

There may indeed be circumstances in which Congress could 'conclude that it would serve the larger interests of the United States to 

finance legal claims against the United States. Congress could, for 

example, establish a legal aid society for government employees for the 

purpose among others of supporting a legal assault on the doctrine of 

sovereign immunity. But if it would be possible to make a legislative 

choice in favor of these claimants, it would nonetheless be very difficult, in our view, to conclude that that sort of choice is within the 

scope of the Attorney General’s implied authority under the statutes 

that define his office. His function, as we read those statutes, is to use 

the resources of this Department to oppose legal claims against the 

United States where, as here, he believes them to be without legal

533
merit. It is not his function to support such claims. For that reason we 

think it would be inappropriate to construe the Revised Guidelines as 

authorizing the Civil Division to pay private lawyers to represent 

government employees in connection with the support or assertion of 

claims such as the claim involved here. We think it would be inappropriate for the Attorney General to provide the federal defendants with 

private representation for the purpose of attacking the United States on 

the fee award issue.

We have three additional observations to make before moving to 

your second question. First, our analysis has turned thus far on an 

interpretation of the statutes that define the Attorney General’s litigating function, 28 U.S.C- § 515 et seq. This analysis is appropriate in our 

view, since our task is to construe the Representation Guidelines, and 

those Guidelines are designed to define the Attorney General’s litigating function in civil cases involving government employees.

Second, it makes no difference for purposes of this analysis that the 

defendants in the present case are employees or former employees of 

the Department of Justice. Absent a specific statute that alters the usual 

arrangement, the Attorney General’s authority to represent the personal 

interests of government employees in civil litigation (directly or indirectly) does not vary under §515 el seq. from agency to agency, and 

the limitations on his authority are the same in each case. Under § 515 

et seq., the Attorney General’s authority to provide representation for 

DOJ employees who are sued personally in a civil case is no different 

from his authority to provide representation for the employees of, say, 

the Department of State.

Finally, we are mindful that the Attorney General is not simply a 

litigator. He has important functions other than those prescribed in 

§515 et seq. He is the head of a large executive department; and like 

any. department head he has general authority, subject to appropriations, to make contracts and pay expenses that must be made and paid if 

his department is to run as it should. We endorse the principle, recognized on occasion by the Comptroller General, that general executive 

authority of this sort may be invoked from time to time to permit an 

agency to reimburse its own employees for personal expenses incurred 

by them as a necessary consequence of faithful and lawful performance 

of their official duties. Indeed, although we express no firm view on 

this point, we see no reason why authority of this sort cannot be 

invoked by this or any other agency to reimburse blameless employees 

for personal expenses incurred by them in litigation, provided it is clear 

on the facts of each case that the expenses were incurred as a necessary 

consequence of due performance of an official duty.

But even if that principle is valid, we think it has no application in 

the present context. The question is whether this Department could 

reimburse the defendants for the cost of arguing in court that the

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United States can be held liable for payment of attorney fees under 

§ 1988. An argument of that sort would not serve to establish the 

legality of any official action by these defendants or by this agency; it 

would, if accepted, enlarge the legal liabilities of the United States. It 

would not directly support any position taken by the government; on 

the contrary, it would be advanced in opposition to the position taken 

by this agency in this very case. It might or might not serve the 

personal interests of the defendants; but if it did serve them, it would 

do so in precisely the same way that any private claim against the 

public fisc (e.g., a claim for indemnity or contribution) might serve the 

interests of government employees in circumstances in which the question is ultimately one of substituting public for private liability. It is a 

claim that they are fully entitled to make, but we think it would be 

very difficult to regard it as a claim that they must make as a necessary 

consequence of the duties cast upon them by their public employment, 

and it would therefore be difficult to regard the attendant expense as an 

expense they must “necessarily” incur within the meaning of the reimbursement rule.

II.

You have advised the defendants: (1) that the Department will withdraw as their counsel in this phase of the case if they decide that they 

should lend their support to the claim that the United States may be 

held liable for the fee award (either to the plaintiffs directly or to 

themselves by way of indemnity or contribution); (2) that in any event, 

the United States will attempt to intervene in the case to support the 

position that the award against the United States was improper; but (3) 

that DOJ attorneys will continue to represent them if they desire the 

representation to continue and agree in writing that DOJ attorneys will 

be free to take the position that the fee award cannot be taxed against 

the United States. You have also advised the defendants that a failure 

on their part to oppose the position taken by the United States in this 

case may later be regarded by a court as the equivalent of a waiver of 

their right, if any, to claim that the United States is liable to anyone 

(including them) for any part of the fee award.

You have asked whether, in our view, the option described in (3) 

presents any substantial ethical difficulty. For the reasons given below, 

we think it does not.

It is for these defendants, acting with the advice of competent lawyers, to determine how they shall conduct their personal defense. 

Whether in the long run it will serve their personal interests-to support 

the view that the United States can be held liable for payment of the 

fee award, or whether it will serve them better to stand now with the 

United States and be represented by DOJ lawyers in this phase of the 

case, is a question as to which this Department cannot properly advise

535
them, given the conflicting governmental position. The Civil Division 

has suggested that they should therefore consult private counsel, and 

the Civil Division has offered to withdraw if they conclude that the 

better course is to oppose the governmental position. The Civil Division has said that it will continue to represent them in this phase of the 

case only if they decide to go forward in a way that is consistent with 

the governmental position, but as regards the ethics of withdrawal 

versus the ethics of continued representation, it seems to us that having 

promised at the outset that the Department would represent their interests to the extent that those interests coincide with the interests of the 

United States, the ethical difficulty would lie with an adamant refusal 

to proceed with representation, not with a continuing effort to do what 

we promised to do at the outset, assuming of course that the defendants, after consultation with independent counsel, conclude that this is 

the better course.

Putting its unique features to one side, this case is very much like the 

routine civil action in which codefendants have a common interest in 

defeating all of the claims against all of them, even though each defendant may have an individual interest in giving reasons why his 

codefendants, not he, should respond in damages to the complaint. In 

that setting, it is clear that defendants are free as a matter of litigation 

strategy to subordinate the interests that divide them and to present a 

united front against the plaintiff as to the law or the facts. The choice is 

theirs; and if, after consultation with independent counsel, they choose 

to present a united front, there is no ethical difficulty in engaging one 

lawyer to present their united position. Cf. Aetna Ins. Co. v. United

States, 570 F.2d 1197 (4th Cir. 1978).

We do not know how the defendants will be advised in this case, but 

it is at least possible they will conclude that they will stand a better 

chance of escaping ultimate liability for payment of a fee award if they 

support the government’s position and establish that there is no deep 

pocket from which part of the award can be paid; and* in any event, 

they may conclude that they simply do not wish to oppose the government on this point. They are loyal employees. That, in essence, is their 

defense on the merits.

We have one or two additional observations to make. We express no 

view on the general question whether it is necessary or desirable to 

analyze this particular ethical problem by reference to the settled principles that govern the representation of “differing interests” by private 

attorneys. See Canon 5 and DR 5-105. This Office frequently draws 

upon those and other private-law principles in our effort to provide 

guidance to the Department in ethical matters; and it is true of course 

that by virtue of our own regulations the Code of Professional Responsibility governs our conduct here to the extent that the Code attempts 

to deal with the kinds of problems that confront us as government

536
lawyers. But we' need to keep in mind that we are often called upon to 

resolve representation questions that involve considerations quite different from those that are usually involved in private cases. Among these 

“different considerations” are the statutes that establish the office of the 

Attorney General and define his litigating and counseling functions. As 

we have suggested in part I of this opinion, these statutes impose 

overriding substantive limitations on what the Attorney General and 

the attorneys who work under him may and may not do in court.

Canon 5 and DR 5-105 contemplate that there is a limited class of 

cases in which a lawyer may undertake to represent the “differing 

interests” of “multiple clients.” He may do this only if: (1) it is “obvious” that he can adequately represent the interest of each, and (2) each 

client consents to the representation “after full disclosure of the possible 

effect of such representation on the exercise of his independent professional judgment on behalf of each.” In other words, the rule envisions a 

situation in which a lawyer attempts to provide “adequate” representation for all of the interests of more than one client, even though there 

may be differences as between two or more of those interests. The rule 

does not contemplate a case of the kind presented here: a case in which 

a lawyer who is also an officer of the government (the Attorney 

General) undertakes to discharge a statutory duty to represent officers 

of the United States in civil litigation but, because of overriding statutory limitations on his authority, undertakes to represent their personal 

interests only to the extent that they coincide with the interests of the 

United States. He cannot and does not undertake to represent any 

personal interest that differs from the interests of the United States. He 

does not, in a word, undertake to represent “differing interests”; and he 

leaves it to the defendants, after consultation with independent counsel, 

to determine: (1) whether they do in fact have interests that differ from 

those of the United States; (2) whether their overall interests would be 

served by taking an independent course in the litigation under the 

representation of private counsel; or (3) whether their overall interests 

would be better served by adopting a strategy of alliance with the 

interests of the United States, as those interests are defined and represented by the Attorney General. If they choose the latter course, we 

think no ethical difficulty is presented by the Attorney General’s willingness to accommodate their desire that he appear on their behalf to 

advance the interests that they hold in common with the United States. 

In the context of a case of this sort, representation of common interests 

after consultation with independent counsel is not representation of 

“differing interests,” and in our view it threatens none of the dangers 

that Canon 5 is designed to prevent.

J o h n M. H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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