Government Attorneys* Participation as Plaintiffs

in a Suit Against the Office of Personnel Management

Assistant U nited States A ttorneys (AUSAs) are not barred by 18 U.S.C. §205 from 

participating as plaintiffs in a class action suit challenging the authority o f the Office o f 

Personnel M anagem ent (O PM ) to reduce the cost o f living allowance paid to all 

federal em ployees in Alaska, though they m ay not accept any compensation for 

assisting in prosecuting the claim s o f the class o r act as agents o r attorneys for the 

class.

T h e A U S A ’s duty o f loyalty to a client under applicable standards o f professional 

conduct does not preclude his joining a suit against O PM , but he should avoid taking 

an active o r notorious role in th e litigation.

March 9, 1981

M EM ORANDUM O PIN IO N FOR AN ASSISTANT UNITED 

STATES ATTORNEY, DISTRICT O F ALASKA

This responds to your request for our opinion concerning the professional propriety of Assistant United States Attorneys (AUSAs) participating as plaintiffs in a class action lawsuit against the Office of Personnel Management (OPM). W e understand that the suit would involve the 

authority of OPM to reduce the cost-of-living allowance paid to all 

federal employees in Alaska. You have advised us that none of the 

plaintiff AUSAs has any privileged government information that is 

relevant to the lawsuit, and that no government employee will act as 

agent or attorney for the plaintiff class. Under those circumstances, we 

conclude that the AUSAs may properly participate as members of the 

plaintiff class. However, w e must advise you to avoid taking an active 

or notorious role in organizing or conducting the litigation, and to 

refuse any compensation for assisting in the lawsuit.1

The pertinent conflict of interest statute is 18 U.S.C. §205. Section 

205 contains two restrictions that will apply to your situation. (1) It 

prohibits Executive Branch employees from receiving any gratuity,

1 W e recognize that these restrictions may make it impossible for you to serve as class representatives in the lawsuit. Since you have indicated that you do not intend to serve as class representatives, 

we need not explore this possibility further.

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share, or interest in any claim2 against the United States in consideration for assistance in the prosecution of the claim, and (2) it prohibits 

Executive Branch employees from acting as agent or attorney for 

anyone3 in connection with any particular matter in which the United 

States is a party. The first clause of the statute prohibits you from 

accepting any compensation-;for assisting in prosecuting the claims of 

the class. The second clause of the statute prohibits you from serving as 

agents or attorneys for the class.4 Generally, this is interpreted to 

prohibit representational activity such as appearances in court, signing 

pleadings or letters, and direct contact with a federal agency on behalf 

of the class. Should you desire a more detailed explanation of the 

meaning and scope of the statutory term “act as agent or attorney,” 

you should consult Manning, supra at p. 83, and 5 C.F.R. 737.5(b) (1) 

and (2).

In addition to the statutory restrictions, your professional responsibilities to a client agency may also constrain your activities in connection 

with the lawsuit. The Justice Department’s Standards of Conduct incorporate by reference the Code of Professional Responsibility of the 

American Bar Association (Code). See 28 C.F.R. 45.735-1. The Code 

contains several principles that limit the activities that lawyers may 

undertake to the detriment of their clients.5

Canon 4 of the Code prohibits a lawyer from using a confidence or 

secret of a client to the disadvantage of the client. DR 4 - 101(B)(2). 

Canon 5 exhorts lawyers to avoid compromising influences and loyalties, including personal interests that may dilute their loyalty to their 

clients. See EC 5-1. Ordinarily, the principles of loyalty and confidentiality embodied in Canons 4 and 5 preclude a lawyer from acting as an 

advocate against a client, even if the litigation is wholly unrelated. For 

example, a lawyer should not ordinarily agree to represent someone in 

a tort action against a person for whom he is preparing an estate plan.

There are, however, circumstances where a lawyer may act as advocate against a client. The discussion draft of the ABA’s proposed

2 We do not have sufficient information to determine whether your anticipated lawsuit would 

constitute a “claim'* against the United States. The term is not defined in the conflict of interest 

statute, but there is little doubt that the term covers at least suits seeking direct monetary relief from 

the United States. For a discussion of the possible breadth of the term, see Manning, Federal Conflict 

of Interest Law (1964) at pp. 85-88 We will assume hereafter that your lawsuit constitutes a claim 

within the meaning of the statute.

3 In the past, this Office has taken'the position that §205 does not prohibit self-representation. 

However, in a suit, such as a class action, where there are multiple parties with claims that are 

virtually identical to the employee's claim, we read the statute to preclude the employee from 

participating as agent or attorney

4 There is an exception to this prohibition for “personnel administration proceedings,’* but we need 

not determine whether your case would fit that exception because you do not intend to serve as agents 

or attorneys.

5 For these purposes, you should consider OPM to be your “client,” since your Office represents 

OPM on a continuing basis. We understand that, with one exception, all of the AUSAs in your Office 

handle civil cases for the client agencies

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revision of its standards of conduct describes one situation where a 

lawyer might properly sue his client:

For example, a lawyer engaged in a suit against a large 

corporation with diverse operations may accept employment by the corporation in an unrelated matter if doing so 

will not affect the lawyer’s conduct of the suit and if both 

the litigant and the corporation consent upon adequate 

disclosure. Whether concurrent representation is proper 

can depend on the nature of the litigation. For example, a 

suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning 

statutory interpretation.

Draft dated January 30, 1980, at p. 29. Another situation is recognized 

explicitly in the current Code—the suit by a lawyer to collect his fee. 

See DR 4 - 101(C)(4). In our view, the same considerations would make 

it proper for a government lawyer to sue his client/employer over 

conditions of employment.6 Accordingly, we conclude that you may be 

members of a plaintiff class in an action against OPM concerning the 

level of the cost-of-living allowance.

Although your duty o f client loyalty will not prevent you from 

joining a suit against OPM, we do believe that it should caution you 

against taking an active or notorious role in the litigation. In particular, 

you should avoid organizing or encouraging others to join the suit or to 

bring similar suits against your client. Finally, your Office should take 

steps to ensure that OPM is adequately represented in the lawsuit by 

other Department of Justice counsel.

L a r r y L . S i m m s

Acting Assistant Attorney General

Office o f Legal Counsel

eCongress has provided for suits by federal employees against their federal employer in a variety of 

contexts. ntexts. See. e.Q.. See, e.g.. 42 U.S.C. 8 2000e-16. 42 U.S.C. §2000e-16.

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