Attorney’s Fees for Legal Service Performed Prior to Federal

Employment

18 U.S.C. §205 prohibits a Civil Division attorney from receiving attorney’s fees for work in a case 

against the U nited States perform ed prior to federal em ploym ent when the right to paym ent depends 

on a finding o f liability and award against the United States that takes place after the attorney’s 

entry into federal em ploym ent.

February 11, 1999

M e m o r a n d u m O p i n i o n f o r t h e D i r e c t o r

D e p a r t m e n t a l E t h i c s O f f i c e

You have requested our opinion whether an attorney in the Civil Division 

(“ Civil attorney” ) may seek or accept attorney’s fees for work in a case against 

the United States that she performed before becoming a federal employee.* 

Although you have specifically asked whether 18 U.S.C. §203 would raise a bar, 

we do not address that issue, because we have concluded that, whether or not 

§203 applies, 18 U.S.C. §205 prohibits the Civil attorney from receiving such 

fees.

I.

Your question arises from work that the Civil attorney performed in connection 

with an employment case that she handled in 1996 and 1997. See Memorandum 

for Randolph Moss, Acting Assistant Attorney General, Office of Legal Counsel, 

from Mary Braden, Director, Departmental Ethics Office, Justice Management 

Division, Re: Request fo r Legal Opinion Regarding the Application o f 18 U.S.C.

Section 203 to Acceptance of Attorneys Fees fo r Work Performed Prior to Service

as Department o f Justice Employee (Jan. 12, 1999) (“ Braden Memo” ). The work 

occurred before her service as an attorney with the Civil Division began in March 

1998. Id. at 1.

In the case in question, the Civil attorney represented an employee of the 

Department of Commerce who challenged his separation from the Department 

pursuant to a reduction in force. Id. The Civil attorney’s client lost his challenge 

to the separation before an administrative law judge and also on appeal to the 

Merit Systems Protection Board ( “ Board” ). Following the unsuccessful appeal 

to the Board, the Civil attorney “ provided no further representational services 

to her former client after January 1997.” Braden Memo at 1. However, the client, 

himself an attorney, pursued a pro se appeal of the Board’s decision to the United 

States Court of Appeals for the Federal Circuit. See id. The Federal Circuit

’ E d ito r’s N ote1 For privacy reasons, m aterial has been redacted from this opinion that might identify the Civil 

D ivision attorney.

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Attorney's Fees fo r Legal Service Performed Prior to Federal Employment

reversed the Board’s decision on the ground that it was not supported by substantial evidence.

As we understand the facts, the Civil attorney’s retainer agreement with her 

client provided that he would “ pay her a discounted hourly rate of $200, up to 

a maximum of $10,000 (50 hours).” Id. Under the agreement, the attorney’s 

recovery of additional fees would be “ contingent upon [the] client prevailing in 

the case and being awarded attorney’s fees.” Id. The retainer agreement covers 

only the proceedings before the Board. Id. As the Civil attorney has explained, 

“ [t]he retainer agreement . . . expressly excluded the filing of any notice of 

appeal or of any appellate proceedings before any tribunal other than the [Board].” 

Memorandum for Randolph Moss, Acting Assistant Attorney General, Office of 

Legal Counsel, from Civil attorney, Re: Request for an Ethics Opinion at 2 n.l 

(Oct. 30, 1998) (“ Civil attorney’s Memo” ). In all, the attorney performed 365.34 

hours of legal services to her former client and received compensation, under the 

retainer agreement, for 50 hours. Braden Memo at 1.

In light of the Federal Circuit’s ruling, the Civil attorney advises that her client 

“ is now entitled to petition the [Board] for an award of attorney’s fees both to 

reimburse himself for the money he has already paid to me (i.e., the ‘cap’ amount) 

and to finally compensate me for the additional 315 hours I expended upon his 

behalf in 1996.” Civil attorney’s Memo at 4. The attorney states that the retainer 

agreement authorized her “ to seek fees from the defendant pursuant to the fee 

shifting statute should the matter settle or should plaintiff prevail.” Id. at 2. She 

notes that a retainer agreement of this type, which contains a fee “ cap” with 

a right to recover an additional amount only if the client prevails, is typical in 

the field of employment law where the substantive statutes providing the basis 

for employment claims contain fee shifting provisions that allow plaintiffs to 

recover attorney’s fees from the defendants. Id.

II.

Based on previous opinions of the Office of Legal Counsel (“ OLC” ), your 

office has advised the Deputy Designated Agency Ethics Official in the Civil Division that 18 U.S.C. §203 would forbid the Civil attorney from recovering the 

contingent portion of the fees that she is owed under the retainer agreement. 

Braden Memo at 2. Under § 203, any officer or employee of the executive branch 

who, “ otherwise than as provided by law for the proper discharge of official 

duties, directly or indirectly . . . demands, seeks, receives, accepts, or agrees to 

receive or accept any compensation for any representational services, as agent 

or attorney or otherwise, rendered or to be rendered either personally or by 

another” during the employee’s federal service is guilty of a crime. 18 U.S.C. 

§ 203(a) (1994).

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In providing your advice, you noted that it is “ ‘the longstanding view of the 

Office of Legal Counsel that §203 prohibits an individual entering government 

employment from maintaining a contingent interest in fees recoverable in a proceeding involving the United States.’ ” Braden Memo at 2 (quoting Memorandum 

for Charles F.C. Ruff, Counsel to the President, from Dawn Johnsen, Acting 

Assistant Attorney General, Office of Legal Counsel, Re: Proposed Nomination

at 2 (Jan. 28, 1998)). You advised that our office’s interpretation “ reflects the 

conclusion that a contingent fee covers the entire representation up to the payment, 

that the amount remains uncertain until then, and that the fees thus compensate, 

in part, for representational services performed after the employee began working 

for the United States.” Id.

In the present case, you did not find “ any basis to distinguish [the Civil attorney’s] situation from previous ones in which OLC found that §203 barred acceptance of compensation by federal employees for services they performed prior to 

their government service.” Id. at 3. You explained that “ it is undisputed that 

any recovery in addition to the $10,000 cap her client was obligated to pay was 

entirely contingent on the case being appealed, and of her client prevailing on 

appeal.” Id. Because “ [t]he final stages of the appeal and the court’s decision 

took place after she was a federal employee,” you concluded that OLC’s prior 

interpretation of § 203 foreclosed her recovery of the outstanding, contingent portion. Id. As you explained, “based on OLC’s view that contingent fees are based 

in some part on representations that continue until the contingency is fixed, unless 

she were to have agreed to a fixed sum from her former client irrespective of 

the outcome of the case, we did not see any way to distinguish her situation 

from those in which OLC has found Section 203 to prohibit acceptance of payments for work done prior to federal employment.” Id. at 3.

In her own submission to our office, the Civil attorney has disputed the conclusion that 18 U.S.C. §203 would prohibit her recovery of the contingent portion 

of the fees under the retainer agreement. See Civil attorney’s Memo, supra. She 

contends that she has “ rendered no ‘services’ to [her client] while serving as 

a federal employee.” Id. at 5. She argues instead that she seeks recovery only 

for hours she worked more than a year before joining the Department of Justice, 

that those hours are documented, that she had no role in the appeal of her client’s 

case to the Federal Circuit, and that “ any fee petition submitted to the [Board] 

would merely iterate time sheet entries and seek fees based upon total hours 

worked times a fixed hourly rate o f $200.00.” Id. at 4—5. As a result, she contends 

that her situation differs from the typical contingency fee case, “ wherein the 

attorney seeks to recover a percentage of the ultimate monetary award.” Id. at

6. Here, she contends, she seeks only to “ recover on a quantum meruit basis 

fees at a fixed hourly rate for identifiable hours worked in 1996.” Id.

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Attorney's Fees fo r Legal Service Performed Prior to Federal Employment

m .

We do not address whether 18 U.S.C. §203 would allow the Civil attorney 

to recover the attorney’s fees at issue, because we conclude that, in any event, 

18 U.S.C. § 205 bars recovery.

Section 205, among other things, prohibits any officer or employee of the executive branch from “ receiv[ing] . . . any share of or interest in” a “ claim” against 

the United States, “ in consideration of assistance in the prosecution of such 

claim.” 18 U.S.C. § 205(a)(1) (1994). The Civil attorney thus could not receive 

any part of attorney’s fees that might now be awarded to her client if (1) those 

fees represent, or constitute a portion of, a “ claim against the United States” 

and (2) the payment to the attorney would be “ in consideration of assistance in 

the prosecution” of such claim. Id.

The petition for attorney’s fees is a demand for the payment of money by the 

United States, and such a demand falls within the core meaning of the phrase, 

“ claim against the United States.” See H.R. Rep. No. 87-748, at 21 (1961); S. 

Rep. No. 87-2213, at 11 (1962) (citing United States v. Bergson, 119 F. Supp. 

459 (D.D.C. 1954)); United States v. 679.19 Acres o f Land, 113 F. Supp. 590, 

593-94 (D.N.D. 1953); Bayless Manning, Federal Conflict o f Interest Law 88 

(1964); see also Acceptance o f Legal Fees by United States Attorney, 6 Op. O.L.C. 

602, 603 (1982) (arguing for broader meaning) (“ 1982 OLC Opinion” ); Prosecution o f Claims by Retired Army Officers, 40 Op. Att’y Gen. 533, 534 (1947) 

(same). The more difficult question under the statute is whether the payment of 

fees to the Civil attorney from such an award would be “ in consideration of assistance in the prosecution of such claim.” 18 U.S.C. § 205(a)(1) (emphasis added). 

A proper resolution of this question requires us to determine the meaning of the 

statutory phrase “ claim against the United States.”

There are two possible meanings of that phrase as it relates to the fee petition. 

The first possibility would be to classify the fee petition as a “ claim against the 

United States” that is distinct from, and independent of, the broader challenge 

to the Department of Commerce’s separation of the Civil attorney’s client on 

which the petition for the attorney’s fees award would ultimately rest. The second 

possibility would be to classify the fee petition as a portion of the relief that 

would be available to her client incident to his broader ‘ ‘claim against the United 

States” challenging the Department’s separation determination.1

'W e do not address in this opinion w hether such a broader challenge w ould constitute a “ claim against the 

U nited S tates” under §20 5 in the absence o f an accom panying dem and for m onetary relief W e note that Professor 

Bayless M anning, in his treatise on the crim inal conflict o f interest law s, recognized that the phrase “ claim against 

the U nited S tates” should be construed w ith due consideration o f the fact that a claim that the U nited States government had im properly discharged one o f its em ployees could give rise to a variety o f m onetary and non-m onetary 

rem edies from am ong w hich the plaintiff would be free to select H e explained that “ even the narrow est conception” 

o f a claim against the United States, a conception that would require a claim to be accom panied by a dem and 

for m oney, “ may cause difficulties” in such cases because o f the ties between nghts and rem edies for the violation 

o f those nghts. Manning, supra at 87. He noted, for exam ple, that, under the predecessor statute to §205, a govem -

C ontm ued

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Opinions o f the Office o f Legal Counsel in Volume 23

Under the first classification of the fee petition, there would be a substantial 

argument that §205 would not constitute a bar to the Civil attorney’s receipt of 

all of the fees from the award, even though it would bar her receipt of a portion 

of such fees. The reference in §205 to “ such claim” would, on this view, refer 

only to the fee petition, rather than to the broader challenge to the unlawful separation. That is, the fee petition would constitute the relevant “ claim.” Under this 

understanding, while the attorney would be barred by § 205 from receiving any 

fees that constituted consideration for her assistance in the prosecution of the fee 

petition, she would not be barred by §205 from receiving the share of the fee 

award that constituted consideration for her assistance in the prosecution of the 

challenge to the unlawful separation.2

Under the second classification of the fee petition, however, § 205 would appear 

to constitute a bar to her receipt of any of the fees. On this view, the fee petition 

would not constitute a distinct and independent “ claim against the United States” 

in its own right that would be severable from the underlying challenge to the 

Department of Commerce’s decision regarding her client’s employment. It would 

merely constitute a portion of the relief that would be available incident to the 

employee’s broader “ claim against the United States” challenging the unlawful 

separation by the Department of Commerce. Under this view, § 205 would bar 

the attorney’s receipt of the fee award because she clearly would be receiving 

the fee award “ in consideration o f ’ her assistance in the prosecution of the challenge to the allegedly unlawful separation.

In our view, the fee petition is more properly classified as a demand for money 

incident to the employee’s broader challenge to the unlawful separation than as 

a distinct “ claim against the United States.” This classification appears to accord 

with the understanding of both the attorney and the client that the petition for 

the fee award was inextricably bound up with the underlying challenge to the 

separation decision. The Civil attorney’s submission shows that, from the outset, 

her client’s challenge to his separation from the Department of Commerce contemplated a request for monetary relief in the form of attorney’s fees. The submission shows further that the attorney was not only aware that an award of attorney’s 

fees was among the types of relief statutorily available to her client if his challenge 

to the separation succeeded, but also that she made sure that her retainer agreement 

provided that she would receive any attorney’s fees award that her client might 

be entitled to recover as a consequence of his prevailing on the unlawful separation claim.

m ent em ployee m ight be “ forbidden . . to assist a form er em ployee in a proceeding for reinstatem ent” because, 

although no m oney w as sought in the proceeding for reinstatem ent, the proceeding could “ lead to a claim for back 

pay ” Id. Thus, Professor M anning stated that it was an open question w hether even a claim that did not include 

a dem and fo r m oney should be deemed a “ claim against the U nited S tates” so long as it could lead to such a 

dem and Id.

2 A s w e have m entioned, w e do not address in this opinion w hether § 2 0 3 would im pose an independent bar 

to th e receipt of any such fees.

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Attorney's Fees fo r Legal Service Performed Prior to Federal Employment

In addition, the statutory provisions that govern the award of attorney’s fees 

in employment cases such as her client’s treat the determination of liability and 

the award of attorney’s fees as if they were indivisible components of a single 

claim. Under the provisions, the client could be entitled to attorney’s fees only 

as a “ prevailing party,” 5 U.S.C. § 7701(g)(1) (1994), and thus these provisions 

make the fee award contingent upon a determination regarding the merits of the 

challenge to the unlawful discharge in this case. The statute further provides that 

the adjudication of the fee petition shall be made by the same decision makers 

that determine the liability issue, and that the award shall be made “ in the interests 

of justice,” id., a standard that appears to contemplate the adjudicators’ consideration of the representation that had been provided in the underlying challenge. 

Indeed, the Board styles the consideration of a motion for attorney’s fees as an 

“ Addendum proceeding” to the liability phase, 5 C.F.R. § 1201.203(b) (1998), 

and because such a proceeding may cover compensatory and consequential damages, too, id. § 1201.204(c)(2), it is hard to view the “ Addendum” as anything 

other than the next phase of a single proceeding on a single claim.

A separate provision of the relevant attorney’s fee statute, which applies to petitions for awards resulting from certain types of employment claims, lends additional support to the conclusion that the fee petition should not be understood 

to constitute a ‘ ‘claim against the United States’ ’ that is distinct from the challenge 

to the unlawful separation. See 5 U.S.C. § 7701(g)(2) (1994). The provision states 

that for certain employment claims, the fee petition should be governed by the 

provisions of 42 U.S.C. § 2000e-5k (1994). See 5 U.S.C. § 7701(g)(2). Those 

provisions, in turn, equate the attorney’s fees that may be awarded for such 

employment claims with the “ costs” of bringing the underlying claims. See 42 

U.S.C. § 2000e-5k. The reference in 5 U.S.C. § 7701(g)(2) to 42 U.S.C. §2000e5k, which describes the fee award as covering the “ costs” of the underlying 

employment claim, suggests that the drafters of the statute governing the attorney’s 

fees award in this matter conceived of the petition for such an award as being 

incident to the underlying claim for relief from the wrongful discharge rather than 

as a distinct claim in its own right. That suggestion accords with a construction 

of § 205 that would deem the fee petition to be an aspect of the underlying challenge to the separation determination rather than an independent claim.

We note that the 1982 OLC Opinion suggested that a quantum meruit payment 

to a federal employee for work he had performed before entering the government 

might, under the circumstances, have been consistent with §205. 6 Op. O.L.C. 

at 603-04. There, however, the lawfulness of the payment depended on establishing that the employee had “ eliminated his interest in the claim” against the 

United States by turning his interest into a non-contingent right to recover from 

his succeeding counsel. Id. at 604. Here, by contrast, the Civil attorney’s right 

to payment depended on a finding of liability, which was contingent when she 

entered the government, and still depends on an award against the government

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by the Board. A payment to her thus would be a share of a claim against the 

United States.

BETH NOLAN 

Deputy Assistant Attorney General

Office o f Legal Counsel

Opinions o f the Office o f Legal Counsel in Volume 23

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