  Relationship Between Department of Justice Attorneys and
Persons on Whose Behalf the United States Brings Suits Under
                    the Fair Housing Act

When the Department o f Justice undertakes a civil action on behalf o f 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 attom ey-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 in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l
                                          C iv il R ig h t s D iv is io 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 appro­
priate 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
                                                         1
                            Opinions o f the Office o f Legal Counsel in Volume 19


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 pat­
tern or practice of violations o f the chapter; subsection (d) of this section author­
izes 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 inter­
preting the statute as establishing attomey-client relationships between the govern­
ment 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,
§ 3 6 13(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 author­
ized 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
agreem ent has already been obtained with th e consent o f the aggrieved person, or if the administrative law judge
has already com m enced a hearing on the record. § 3613(a)(2)—<3).


                                                          2
 Relationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United States
                             Brings Suits Under the Fair Housing Act

attorney and the complainant or aggrieved person. Nor have we located anything
in the legislative history that would indicate that Congress intended the Depart­
ment 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 govern­
ment 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 indi­
vidual complainants or aggrieved persons. General Tel. Co. o f the Northwest, Inc.
v. EEOC, 446 U.S. 318, 324, 326 (1980); United States v. School Dist. o f Fem-
dale, 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 govern­
ment, 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 Fed­

   2 In Gormin v. Brown-Forman Corp., 133 F.R.D. 50 (M.D. Fla. 1990), the court held that there was no attomey-
client 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. W e 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 D epartm ent's action. This
issue was not reached by the District Court in Gormin.


                                                        3
                    Opinions o f the Office o f Legal Counsel in Volume 19


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 rep­
resentation undertaken by the Department is protected by the attomey-client privi­
lege, 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 Gen­
eral 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 Con­
gress 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 con­
firmed by the strong legal policy considerations that require the government
attorney to represent the government rather than the complainant. First, Depart­
ment 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 attor­
neys 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 govern­
ment 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), a ffd , 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 rep­
resentation 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 con­
fidentiality 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.

                                              4
Relationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United States
                            Brings Suits Under the Fair Housing Act

Losing complainants might wish to press an appeal, when the Department’s proce­
dures repose ultimate authority for such appeal decisions with the Solicitor Gen­
eral. 28 C.F.R. §0.20(b) (1994). Complainants also might wish to institute collec­
tion 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 Depart­
ment 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 com­
plaint 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 govern­
ment’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 complain­
ant, 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 con­
sequence, 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 govern­
ment 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.

                                                 5
                    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 fore­
see 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 disclo­
sure 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 relation­
ship, 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 rela­
tionship. 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

                                              6
Relationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United Stales
                            Brings Suits Under the Fair Housing Act

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 pre­
vent 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 Commis­
sion (“ 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 estab­
lished 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 commu­
nications 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 o f LegalCounsel

                                                 1
