Relationship Between Department of Justice Attorneys and

Persons on Whose Behalf the United States Brings Suits Under

the Fair Housing Act

When the Department of Justice undertakes a civil action on behalf of a complainant alleging a 

discriminatory housing practice under the Fair Housing Act, Department attorneys handling the 

action do not enter into an attomey-client relationship with the complainant, nor do they undertake 

a fiduciary obligation to the complainant.

Because no attomey-client relationship is established in such undertakings, no retainer agreement 

between the complainant and the Department attorneys should be entered into.

January 20, 1995

M e m o r a n d u m O p i n i o n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l

C i v i l R i g h t s D i v is i o n

You have requested that this Office clarify the legal relationship between 

Department attorneys and individuals on whose behalf the United States institutes 

civil actions pursuant to the Fair Housing Act, as amended. 42 U.S.C. §§3604- 

3616a.

Description of the program

The Fair Housing Act uses the resources of the federal government to address 

housing discrimination against private persons. Persons alleging a discriminatory 

housing practice may file a complaint with the Secretary of Housing and Urban 

Development (“ the Secretary” or “ HUD” ), or the Secretary may undertake 

action at his or her own behest. The statutory structure attempts to ensure that 

such complaints are vigorously investigated and, if meritorious, pursued by the 

government. Under § 3610(e), the Secretary may authorize a civil action for appropriate temporary or preliminary relief, to be filed by the Department of Justice. 

When a complaint is filed with HUD under §3610, the complainant, respondent, 

or person on whose behalf a complaint was filed may elect to have the claims 

asserted in that charge heard in a civil action under §3612(o). Subsection 3612(o) 

provides that, if an election to proceed in a civil action is made: “ the Secretary 

shall authorize, and not later than 30 days after the election is made the Attorney 

General shall commence and maintain, a civil action on behalf of the aggrieved 

person in a United States district court seeking relief under this subsection.” 

(Emphasis added.)

Section 3613 grants aggrieved private persons a cause of action, whether or 

not the person has filed a complaint administratively. However, if the Secretary 

has already obtained a conciliation agreement with the consent of the aggrieved

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person, then the aggrieved person may only file a suit to enforce the terms of 

such an agreement.

Subsection 3614(a) authorizes the Attorney General to file suits alleging a pattern or practice of violations of the chapter; subsection (d) of this section authorizes the courts, in either a pattern or practice case or a case filed upon a referral 

by the Secretary, to award injunctive relief, damages to the person aggrieved, 

civil penalties, and attorneys fees to parties other than the United States.

Relationship between Department attorneys and the complainant

We believe that when the Department of Justice undertakes a matter “ on behalf 

of’ ’ a complainant, the Department attorney does not enter into an attomey-client 

relationship with the complainant. Likewise, when the Department files a pattern 

or practice case under §3614, seeking damages on behalf of aggrieved persons, 

no attomey-client relationship is established with those for whom damages are 

sought.

The structure of the statute compels this conclusion. Congress recognized not 

only that the government’s interests in large measure coincide with those of 

aggrieved parties, but also— and importantly for our purposes here — that the 

interests of the complainant or aggrieved persons may diverge from that of the 

government. Such potential divergence of interest would be inconsistent with interpreting the statute as establishing attomey-client relationships between the government and the complainants on whose behalf the Department litigates. First, the 

statute has separate sections for enforcement by private persons under §3613 and 

enforcement by the Attorney General under §3614. More specifically, § 3613(a) 

illustrates that Congress recognized the potential for diverging interests within the 

statute itself. It provides that an aggrieved person may file a civil action, regardless 

of whether an administrative complaint was filed under §3610.' Similarly, 

§3613(e), which provides for intervention by the Attorney General in suits brought 

by private persons, and its companion provision, § 3614(e), which provides for 

intervention by aggrieved persons in suits brought by the Attorney General, 

indicate that the Attorney General may have separate interests or positions from 

those advanced by the complainant. Likewise, §3612(o)(2) provides that an 

aggrieved person may intervene as of right in any administrative action filed by 

the Secretary. Finally, if the Department (or a HUD attorney, in the case of an 

administrative filing) were the attorney for the complainant, Congress would not 

have needed to provide for the complainant’s individual representation, or for 

court appointment of an attorney for the complainant under § 3613(b).

Moreover, Congress nowhere in the Fair Housing Act itself decreed or authorized the establishment of an attomey-client relationship between the Department

1 The only limit on Filing in court in such a circumstance is that the aggrieved person may not file if a conciliation 

agreement has already been obtained with the consent o f the aggrieved person, or if the administrative law judge 

has already commenced a hearing on the record. § 3613(a)(2)—<3).

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attorney and the complainant or aggrieved person. Nor have we located anything 

in the legislative history that would indicate that Congress intended the Department to serve as the complainant’s personal attorney, rather than the attorney for 

the government. Congress apparently intended that the government use its 

resources to vindicate civil rights with respect to housing, and to attempt to 

achieve redress for the complainants who bring violations to the government’s 

attention, as it has in other areas of civil rights. Yet the Fair Housing Act does 

not provide personal attorneys for those who believe that they have suffered 

housing discrimination.

Other civil rights laws attempt to involve the government in the promotion of 

civil rights by mustering the government’s litigative resources on behalf of private 

individuals or groups of aggrieved individuals. In those situations, courts have 

not found that an attomey-client relationship was established between the government and those for whom the government sought relief. Bratton v. Bethlehem

Steel Corp., 649 F.2d 658, 669 (9th Cir. 1980); Williams v. United States, 665 

F. Supp. 1466, 1470 (D. Or. 1987).2 Courts have also recognized that the United 

States has broader and somewhat different litigative interests from that of the individual complainants or aggrieved persons. General Tel. Co. of the Northwest, Inc.

v. EEOC, 446 U.S. 318, 324, 326 (1980); United States v. School Dist. of Femdale, 577 F.2d 1339, 1345 n.9 (6th Cir. 1978) (“ The District Court suggested 

that specificity was required in the complaint because the EEOA’s purpose was 

to vindicate ‘the individual rights of those discriminated against’ as opposed to 

a ‘national policy of school desegregation.’ This reading is totally inconsistent 

with the Act’s statement of purpose ....”) (citation omitted); EEOC v. Whirlpool

Corp., Local 808, 80 F.R.D. 10 (N.D. Ind. 1978).

In the few situations in which Congress has provided that attorneys employed 

by the government shall serve as the attorney for a party other than the government, its intent that the attorneys represent a party other than the government 

itself is manifest in the statute. For example, judges advocate of the Army, Navy, 

Air Force, and Marine Corps, and law specialists of the Coast Guard may be 

detailed to serve as defense counsel, 10 U.S.C. §827, pursuant to the defendant’s 

“ right to be represented at that investigation by counsel.” 10 U.S.C. §832(b). 

Within the statute providing for government-provided counsel through judges 

advocate, Congress included provisions addressing conflicts of interest, to ensure 

that the judge advocate truly does represent the accused, rather than broader 

governmental interests. Id. § 827(a)(2). Likewise, attorneys employed by the Fed2 In Gormin v. Brown-Forman Corp., 133 F.R.D. 50 (M.D. Fla. 1990), the court held that there was no attomeyclient relationship with aggrieved employees listed in the complaint, although the decision left open the possibility 

of establishing such a relationship if an aggrieved person filed a complaint with the agency. We believe that under 

the Fair Housing Act, even if an aggrieved person did file a complaint with the Secretary and the case were referred 

to the Department, the Department would not formally represent the complaint in the Department's action. This 

issue was not reached by the District Court in Gormin.

Relationship Between Department o f Justice Attorneys and Persons on Whose Behalf the United States

Brings Suits Under the Fair Housing Act

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eral Public Defender Organization clearly do not represent the government in 

litigation, but represent the defendants. 18 U.S.C. § 3006A(g)(2)(A).

The Attorney General also may provide that an attomey-client relationship is 

established with a party other than the government itself. With respect to formal 

representation of government employees, regulations establish that any such representation undertaken by the Department is protected by the attomey-client privilege, although the employee must be informed that the government attorney will 

not assert any legal position on behalf of the employee that is not in the interests 

of the United States. 28 C.F.R. § 50.15(a)(3), (a)(8)(ii) (1994). The Attorney General has not authorized Department attorneys to undertake representation of Fair 

Housing Act complainants. Due to the absence of clear statutory or regulatory 

authority to represent a party other than the government itself, as provided by 

Congress and the Attorney General in other areas, we conclude that neither Congress nor the Attorney General has authorized the establishment of formal, 

attomey-client representation of complainants by Department attorneys.

Our conclusion, based principally on the Fair Housing Act statute itself, is confirmed by the strong legal policy considerations that require the government 

attorney to represent the government rather than the complainant. First, Department attorneys are to be guided in their conduct by the Code of Professional 

Responsibility of the American Bar Association, 28 C.F.R. §45.735-l(b) (1994). 

The Code, like the Model Rules which have largely succeeded it, requires attorneys to avoid conflicts of interest. Model Code of Professional Responsibility DR 

5-105(A); Model Rules of Professional Conduct Rule 1.7 (1994). If the government attorney were not only to represent the government, but also a complainant, 

conflicts would sometimes arise between the government’s interest and the private 

complainant-client’s interest. See United States v. Wheat, 813 F.2d 1399, 1402 

(9th Cir. 1987), affd, 486 U.S. 153 (1988) (conflicts of interest arise whenever 

an attorney’s loyalties are divided; courts may decline proffers of waivers 

regarding conflicts). If the government attorney were formally representing the 

complainant, the possibility of violating other rules would also rise. For instance, 

the Model Rules of Professional Conduct Rule 1.2 (1994) requires that a lawyer 

follow a client’s decisions concerning the objectives of representation, mandates 

that an attorney consult with the client as to means, and requires that the attorney 

heed a client’s decision whether to accept an offer of settlement. If formal representation were undertaken, these ethical provisions might sometimes conflict 

with the attorney’s duties towards the government.

For example, we understand that some complainants may want to accept a confidentiality provision as part of settlement negotiations, when Department policy 

and public records laws may preclude Department attorneys from agreeing to such 

terms. Similarly, we understand that the Civil Rights Division prefers in-court 

settlements, so as to promote enforceability of the agreements, and to deter civil 

rights violations by others, whereas complainants may wish to settle out of court.

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Losing complainants might wish to press an appeal, when the Department’s procedures repose ultimate authority for such appeal decisions with the Solicitor General. 28 C.F.R. §0.20(b) (1994). Complainants also might wish to institute collection actions in the event of a failure to pay on the part of the defendant when 

the particular Departmental office responsible for debt collection may have other 

priorities. In all likelihood, complainants will typically favor a strategy of seeking 

the maximum damages for themselves, rather than injunctive relief. In all these 

circumstances, then, the establishment of an attomey-client relationship would 

require the government attorney to take actions that might deviate from Department policy and priorities.

The role of the government attorney is somewhat more complicated than that 

of a private attorney: that is, the government attorney may have a higher obligation 

to “ do justice” and to correct public or societal wrongs, rather than simply to 

advocate the position of the attorney’s client. See EEOC v. Occidental Life Ins.

Co., 535 F.2d 533 (9th Cir. 1976), affd, 432 U.S. 355 (1977); EEOC v. Huttig

Sash & Door Co., 511 F.2d 453 (5th Cir. 1975). The government attorney, then, 

typically perceives him or herself as being obliged to undertake a more thorough 

investigation of the facts before filing a suit than the rules of pleading and ethics 

would strictly require. The force of an accusation lodged in the form of a complaint filed by the government is stronger than that of a complaint filed by an 

ordinary citizen. Likewise, at the end of the case, government attorneys attempt 

to arrive at a just settlement (not always the maximum possible, due to the government’s negotiating advantages), and, as noted above, government attorneys may 

prefer to seek injunctive relief, rather than damages on behalf of one person. Were 

the government attorney simply serving as the attorney for the private complainant, the attorney would seek to maximize a dollar recovery for the private 

complainant, regardless of the strength of the case or the desirability of injunctive 

relief. See McClain v. Wagner Elec. Corp., 550 F.2d 1115 (8th Cir. 1977). Finally, 

the government attorney may be required to consider overall governmental policy 

and the government’s litigative posture in other cases in litigation. As a consequence, the government attorney may refrain from making certain arguments 

permissible under the law, but contrary to the government’s position in other 

cases. See Trbovich v. United Mine Workers o f America, 404 U.S. 528 (1972) 

(recognizing that federal agencies may not be able to serve the interest of both 

private and public interests). For all of these reasons, we conclude that the government attorney does not serve as the attorney for the private complainant in a Fair 

Housing Act case, as such formal representation might require the government 

attorney to file prematurely or make accusations that are not fully supported, urge 

settlements that do not best promote the public interest, and make arguments that 

may be at odds with the government’s litigative positions in other cases.

Relationship Between Department o f Justice Attorneys and Persons on Whose Behalf the United States

Brings Suits Under the Fair Housing Act

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Opinions o f the Office o f Legal Counsel in Volume 19

Fiduciary Duties

You also asked whether the government attorney has a “ fiduciary duty” to 

the complainant. For the same reasons that the government attorney does not 

undertake an attomey-client relationship with the complainant, he or she does not 

have fiduciary duties to the complainant. The term “ fiduciary duty” underscores 

the obligation to act in the client’s best financial interest, and, again, we can foresee cases when, contrary to the interest of the complainant, the government 

attorney may determine that seeking injunctive relief is most appropriate, or 

seeking relief on behalf of a broader class of aggrieved persons would be the 

best strategy. Moreover, undertaking a fiduciary relationship might trigger a host 

of obligations under the relevant state law regarding fiduciaries.

Retainer Agreements

You asked whether you should formally enter into retainer-like agreements with 

the complainants at the beginning of the litigation and, if so, what should be 

addressed in such an agreement. Because there is no attomey-client relationship 

established, no retainer agreement should be entered into. The question of disclosure is outside the expertise of the Office of Legal Counsel, but in view of the 

potential confusion on behalf of complainants regarding the nature of the relationship, it would seem prudent to advise them that the government attorney is not 

their attorney, although the government is bringing a case on their behalf, and 

that they are entitled to retain their own counsel. We have reviewed the form 

letter used by the Civil Rights Division, which you transmitted to us, as well 

as the Department of Housing and Urban Development’s sample letter to 

complainants in administrative proceedings. The Civil Rights Division’s letter 

tracks the statutory language in stating that it is bringing suit “ on your behalf,” 

whereas HUD uses the word “ represents” unless and until there is a conflict. 

The HUD letter thus may create confusion by overstating the nature of the relationship. However, both letters are perfectly clear in stating that the possibility 

exists that the government’s interests may diverge from the complainant’s, and 

that the complainant is entitled to retain his or her own attorney.

Other Duties Towards Complainants

You asked what further obligations the government has toward the complainant 

in involving them in various litigation decisions. The statute does not set forth 

such obligations, and we decline to read them into the statute. See The Attorney

General’s Role as Chief Litigator for the United States, 6 Op. O.L.C. 47 (1982) 

(absent clear legislative directives to the contrary, the Attorney General has full 

plenary authority over all litigation to which the United States is a party), 28

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U.S.C. §516 (conduct of litigation reserved to the Department of Justice); 28 

U.S.C. §519 (Attorney General shall supervise all litigation to which the United 

States is a party and shall direct assistants in the course of their duties). It falls 

within the expertise of litigating divisions to determine how best to work with 

complainants, in view of the statute’s intent, the litigation decisions to be made, 

and attorney time-management concerns.

Other Privileges

You ask whether other privileges could protect communications with the 

complainant. Because we are not experts on litigation privileges, we will not 

undertake a full assessment of the common interest/joint defense privilege, but 

will simply note its existence, recognition, and apparent applicability here. See

In re Grand Jury Subpoenas, 89-3 and 89—4, 902 F.2d 244, 249 (4th Cir. 1990) 

(citing cases); Sheet Metal Workers Int’l Ass’n v. Sweeney, 29 F.3d 120, 124 n.3 

(4th Cir. 1994); In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (citing Supreme 

Court Standard 503(b): “ A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the 

purpose of facilitating the rendition of professional legal services to the client, 

. . . (3) by him or his lawyer to a lawyer representing another in a matter of 

common interest . . . .” ); In re Auclair, 961 F.2d 65 (5th Cir. 1992); United

States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989). In Bauman v. Jacobs Suchard,

Inc., 136 F.R.D. 460, 461-62 (N.D. 111. 1990), the court protected documents 

transmitted from the complainant to the Equal Employment Opportunity Commission (“ EEOC” ), notwithstanding the fact that there is not a formal attomey-client 

relationship between the EEOC and a complaining party. Here, the complainant 

and the government would have a mutual interest in vindicating federally established protection from housing discrimination, and disclosures made by the 

complainant to the Department would facilitate the rendition of legal services to 

both the government as client and to the complainant. Accordingly, in jurisdictions 

recognizing the privilege, courts should find that the privilege applies to communications between fair housing complainants and the Department attorneys filing 

on their behalf, when those communications are made in the course of an ongoing 

common enterprise and are intended to further the enterprise. Schwimmer, 892 

F.2d at 243.

In sum, we conclude that no formal attomey-client relationship exists between 

the government and a complainant or aggrieved party in a case referred to the 

Department under the Fair Housing Act.

WALTER DELLINGER 

Assistant Attorney General

Office of LegalCounsel

Relationship Between Department o f Justice Attorneys and Persons on Whose Behalf the United Stales

Brings Suits Under the Fair Housing Act

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