 Department of Justice Representation of Federal Employees in
                   Fair Employment Suits

Governm ent attorneys are not prohibited by 18 U .S .C . § 205 from representing federal em ployees in
  judicial personnel adm inistration proceedings, as long as the representation is uncom pensated and
   is not inconsistent w ith the attorney’s perform ance of his or her official duties. However, D epart­
  ment of Justice regulations prohibit departm ental attorneys from representing federal em ployees in
  fair em ploym ent suits in federal court, explicitly lim iting such representation to adm inistrative
  com plaint procedures.


                                                                                                   July 23, 1982

      MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
             GENERAL, CIVIL RIGHTS DIVISION

   This responds to your request for the views of this Office regarding the
representation by Department of Justice attorneys of federal employees with
Equal Employment Opportunity (EEO) complaints. Specifically, you asked
whether a Department of Justice attorney could represent a federal employee in a
fair employment suit against a federal agency, and if so, whether such representa­
tion depended upon the division or section in which the attorney works, or
whether the employee’s claim was against the Department of Justice.
   The statute which addresses the “ conflict of interest” issues raised by your
request is 18 U.S.C. § 205.' This section prohibits “ officer[s] or employee[s] of
the United States” from “ act[ing] as agent or attorney for prosecuting any claim


  1 18 U.S C § 205 provides in pertinent part:
          Whoever, being an officer or employee of the United States in the executive, legislative, or judicial
       branch of the Government or in any agency of the United States, including the District of Columbia,
       otherwise than in the proper discharge of his official duties—
             (1) acts as agent or attorney for prosecuting any claim against the United States, or receives any
          gratuity, or any share of or interest in any such claim in consideration of assistance in the
          prosecution of such claim, or
             (2) acts as agent or attorney for anyone before any department, agency, court, court-martial,
         officer, or any civil, military, o r naval commission in connection with any proceeding, applica­
          tion, request fo ra ruling or other determination, contract, claim, controversy, charge, accusation,
         arTest, or other particular matter in which the United States is a party or has a direct and substantial
          interest—
       Shall be fined not more than $10,000 or imprisoned for not more than two years, or both
                                   *         *         *         *        *

         Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance
      of his duties, from acting without compensation as agent or attorney for any person who is the subject
      of disciplinary, loyalty, or other personnel administration proceedings in connection with those
      proceedings.


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against the United States, or receiv[ing] any gratuity, [therefor]” or from
 “ act[ing] as agent or attorney for anyone before any department, agency, [or]
co u rt. . . in connection with any proceeding,. . . in which the United States is a
party or has a direct and substantial interest.” Excepted from the prohibitions
contained in this section are “officer[s] or employee[s] [who,] if not inconsistent
with the faithful performance of [their] duties, . . . act [ ] without compensation
as agent or attorney for any person who is the subject of disciplinary, loyalty, or
other personnel adm inistration proceedings in connection with those
proceedings.”
    With respect to Department of Justice employees, the Department has promul­
gated regulations with similar language in 28 C.F.R. § 45.735-9(c)(l),2 and
§ 45.735-6(c) (1981 ).3 In addition, in 1973 the Department issued DOJ Order
 1713.5 establishing its policy regarding volunteer representation of employees of
the Department who are involved in EEO complaint procedures.4 This order,
which is embraced by regulations most recently revised by the Department in
 1980, prohibits the representation of EEO complainants in federal court by
Department attorneys, explicitly limiting such representation to administrative
complaint procedures.
    As you noted in your opinion request, Attorney General Edward H. Levi
issued two memoranda on November 20, 1975, encouraging representation by
all government attorneys of federal employees with EEO complaints “ during all
phases of the proceedings,” so long as the representation would not be inconsis­
tent with the employee’s faithful performance of his or her duties and the
employee is not compensated for such work. Levi, Memorandum to All Em­
ployees re: Representing Equal Employment Opportunity Complainants at 1
(November 20, 1975); Levi, Memorandum to Heads of Departments and Agen­
cies re: Representation by Federal Employees of EEO Complainants (November
20, 1975). The memorandum directed to the heads of agencies stated that, while
the Department of Justice found no distinction under § 205 between admin­
istrative and judicial proceedings, the determination whether policy considera­
tions warranted a distinction between administrative and judicial proceedings
was the responsibility of each agency.
    The memorandum directed to Department of Justice employees did not ex­
plicitly prohibit representation by federal employees of EEO complainants in
judicial proceedings; however, the memorandum does appear to have con­

  2 Section 4 5 .7 3 5 -9 (c)(l) provides in pertinent part:
       Representation of Federal Employees in Equal Employment Opportunity (EEO) complaint pro­
       cedures may be provided in accordance with § 45.735-6(c) of this title and the Department’s
       established EEO policy (see DOJ O rder 1713.5) rather than this subsection.
  3 Section 45 735-6(c) provides:
       (c) Nothing in this part shall be deem ed to prohibit an employee, if it is not otherwise inconsistent
       with the faithful performance of his duties, from acting without compensation as agent or attorney for
       any person in a disciplinary, loyalty, o r other Federal personnel administration proceeding involving
       such person
  4 See Department o f Justice Order No. 1713 5, Volunteer Representatives for Employees Involved in EEO
Complaint Procedures (Oct. 30, 1973)


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templated such a limitation,5 particularly when considered in the context of the
1973 DOJ Order 1713.5, which established the “ EEO Volunteer Representatives
Program” for the Department, and current Department regulations citing that
order.6
   Thus, in answer to your specific question, Department of Justice attorneys are
presently prohibited from representing federal EEO complainants in federal
courts— without regard to the division in which the attorney is employed, or
whether the complaint has been filed against the Department of Justice. We
would add that this prohibition is based on DOJ Order 1713.5 and current
Department regulations, not on our interpretation of the conflict of interest
provisions contained in § 205. Both prior to and since Attorney General Levi’s
November 20, 1975, memorandum to agency heads, this Office has taken the
position that § 205 excepts from its general conflicts provision the representation
of federal employees in personnel administration proceedings in court as well as
before agencies, so long as the representation does not, in the judgment of an
appropriate official, conflict with the attorney’s official duties.7

                                                                        L arry     L.   S im m s
                                                          Deputy Assistant Attorney General
                                                               Office of Legal Counsel




   5 In discussing the relevant conflict of interest provision, the memorandum states that a federal employee
“ representing a person before a government agency in a personnel proceeding, such as the EEO complaint
process.” is generally exempt from the conflict of interest laws, so long as the representation is uncompensated and
is not inconsistent with the attorney’s faithful performance of his or her duties Levi, Memorandum to All
Employees, supra at 2 (emphasis added)
   6 But c f Rex E. Lee, Assistant Attorney General, Civil Division, Memorandum to All Section and Unit Chiefs re
Representation by Federal Employees of EEO Complainants (Mar 26. 1976) (concluding that the Levi memoran­
dum to Department employees does authorize representation in federal courts by Department of Justice attorneys,
but advising Civil Division attorneys that they are not authonzed to participate tn such representation because o f the
conflicts that might arise, “ since the representation of the government in these cases is a traditional function of the
Civil Division once the case proceeds to litigation." Id. at I ).
   1 See Roger X Cramton, Assistant Attorney General, Memorandum for the Deputy Attorney General re
Representation by Department of Justice Attorneys of Federal Workers Claiming Discrimination in Employment
(Oct. 3 1. 1972): Leon Ulman. Acting Assistant Attorney General Memorandum for the Assistant Attorney General,
Cnminal Division re. Charles E. Langyher, III, et. al. v United States— Applicability of 18 U S.C. § 205 to
Participation of Counsel (May 10, 1972); Frank Wozencraft, Assistant Attorney General, Letter to the General
Counsel. United States Civil Service Commission (May 8, 1967); Norbert X Schlei. Assistant Attorney G eneral,
Letter to the General Counsel. Post Office Department (Feb 26, 1965)


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