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B. Attorney Practice and Ethical Issues

Contents

  1. Commission Payment of Expenses for Bar Review Course, Bar Examination, and Court Admission
    1. The Former Rule: Prohibition on Payment of Fees
    2. Narrow Exception: Discretion to Pay Bar Review Course Fees
    3. The New Rule: Discretion to Pay Bar Exam and Court Admission Fees
    4. EEOC’s Policy Regarding Expenses for Necessary Professional Credentials
  2. Outside Practice of Law
    1. Introduction
    2. The Prohibition on Outside Employment
    3. The Requirement for Prior Approval
  3. Recusal Obligations of an Attorney Whose Spouse is an Attorney Engaged in the Private Practice of Employment Law
    1. The Recusal Requirements
    2. Questions about Recusal
  4. EEOC Ethics Officials
  5. Web Resources on Ethical Issues

B. Attorney Practice and Ethical Issues

1. Commission Payment of Expenses for Bar Review Course, Bar Examination, and Court Admission

a. The Former Rule: Prohibition on Payment of Fees

Until December 2001, the Comptroller General of the United States had consistently held that a federal employee was responsible for obtaining the qualifications to perform his or her official duties, and if a license was required for that purpose, the employee was obligated to procure the license at his or her own expense. 22 Comp. Gen. 460 (1942) (court admission fees); 47 Comp. Gen. 116 (1967) (same); 61 Comp. Gen. 357, 359 (1982) (law school tuition, bar review course, court admission fees). The only exception was where another law expressly permitted payment.

b. Narrow Exception: Discretion to Pay Bar Review Course Fees

In 1976, the Comptroller General construed the Government Employees Training Act (GETA), 5 U.S.C. §§ 4101, et seq., to allow an agency to pay for bar review expenses in limited circumstances. GETA allows the head of an agency to use appropriated funds to pay all or part of the expenses of “training” that will “improve individual and organizational performance and assist in achieving the agency’s mission and performance goals.” Id. at 4101 (4). This includes payment or reimbursement of the employee for the tuition for a course, as well as travel, per diem, books, and other fees directly related to the training. Id. at 4109 (a)(2). In Matter of Payment of Expenses for Bar Review Course, Bar Examination, and Court Admission, B-187,525 (1976), 1976 WL 9595 (Comp Gen.) (unpublished opinion), the Comptroller General responded to an Interstate Commerce Commission (ICC) query regarding whether it could pay for the bar review course, bar exam, and court admission fees for an associate regional counsel. A newly adopted district court rule required that the attorney be admitted to the California bar. Because the attorney had already qualified for the position he was serving in (he was a member of another state’s bar) and the agency had not changed the requirements for the job or reclassified it, the Comptroller General determined that “the costs of attending a bar review course are properly payable when the head of an agency determines, under [GETA], that members of his legal staff should take a bar review course.” Id. at *2. The Comptroller General determined that the agency could not pay for the attorney’s bar exam fees or his court admission fees. Id. at *2-*3.

c. The New Rule: Discretion to Pay Bar Exam and Court Admission Fees

On December 28, 2001, Congress amended Title 5 of the U.S. Code (Government Organization and Employees) to give federal agencies discretion to pay the fees for bar exams and court admissions. The new Code section, entitled “payment of expenses to obtain professional credentials,” states:

(a) An agency may use appropriated funds or funds otherwise available to the agency to pay for - -

  1. (1) expenses for employees to obtain professional credentials, including expenses for professional accreditation, State-imposed and professional licenses, and professional certification; and
  2. (2) examinations to obtain such credentials

5 U.S.C. § 5757(a).

In Matter of Pension Benefit Guarantee Corp. – Court Admission Fees, the Comptroller General recognized the change in the law, ruling

if the PBGC determines that payment of court admission fees is necessary to carry out its statutory mission and wishes to pay the fees pursuant to the discretion granted the agency under section 5757(a), our Office will not object to the PBGC using its appropriated funds to pay them.

B-289,219 (2002), 2002 WL 31478833 (Comp. Gen.) at *2 (unpublished decision). The PBGC’s 80 attorneys worked in Washington, D.C., but litigated ERISA cases throughout the country and had to pay a one-time admission fee to practice before each district court. The agency wanted to pay the court admission fees for its attorneys and successfully argued that the benefit of the multiple court admissions inured to PBGC rather than the individual attorneys.

d. EEOC’s Policy Regarding Expenses for Necessary Professional Credentials

Ordinarily EEOC attorneys are responsible for the expenses of obtaining the professional credentials required to perform their official duties. Where special circumstances exist, EEOC will consider paying some or all of the expenses necessary for an attorney to obtain admission to a bar. One situation where EEOC might pay such expenses is where an already licensed attorney agrees to seek admission to an additional state bar because the EEOC needs a licensed attorney in that jurisdiction.

2. Outside Practice of Law1

a. Introduction

In 1992, the United States Office of Government Ethics (OGE) promulgated Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Ethical Conduct), codified at 5 C.F.R. Part 2635. Standards of Ethical Conduct replaced many individual agency ethical conduct standards with uniform standards, while giving individual agencies authority to issue supplemental regulations where necessary. Standards of Ethical Conduct is based on Principles of Ethical Conduct for Government Officers and Employees contained in Executive Order 12674 (April 12, 1989), as modified by Executive Order 12731 (Oct. 17, 1990).

b. The Prohibition on Outside Employment

One of the enumerated principles both in the Executive Order and in Standards of Ethical Conduct is:

Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.

5 C.F.R. § 2635.101(b)(10). Standards of Ethical Conduct, Subpart H, set forth detailed standards on the prohibition against engaging in outside employment and other activities that conflict with official duties. Id. at § 2635.801, et seq. Subpart H includes a number of examples.

EEOC has issued regulations, Supplemental Standards of Ethical Conduct for Employees of the Equal Employment Opportunity Commission (Supplemental Standards), at 5 C.F.R. Part 7201, supplementing OGE’s regulations. EEOC’s regulations specifically prohibit all employees, including attorneys, from “receiv[ing] compensation for representational services, or the rendering of advice or analysis, regarding any equal employment law or its application.” Id. at § 7201.102 (b). The regulations also prohibit EEOC attorneys from outside employment with someone who is substantially affected by the employee’s performance of his or her official duties. Id. at § 7201.102 (a). In addition, employees generally are barred from outside involvement (whether paid or unpaid) with any matters pending at the EEOC or to which the EEOC or the Federal Government is a party. Id. at § 7201.102 (c)). Two exceptions apply. First, an employee may provide behind-the-scenes help to an immediate family member in an EEOC matter or a matter in which the Federal government is a party. Id. Second, an employee also represent “another EEOC employee in an administrative equal employment opportunity complaint against EEOC.” Id. For both exceptions, the employee must receive prior approval and may not receive any compensation. Id.

c. The Requirement for Prior Approval

EEOC’s Supplemental Standards provide that before engaging in any outside employment, whether pay or unpaid, the employee “must obtain written approval from his or her Deputy Ethics Counselor or designee.” 5 C.F.R. § 7201.103 (a). The EEOC’s regulations define “employment” broadly to include paid and unpaid activities, such as serving as an officer or director, attorney, consultant, teacher, or speaker, or writing for publication. However, the regulations exempt most activities performed for nonprofit charitable organizations. Id. at § 7201.103 (d).

Employees must also obtain prior written approval of the Designated Agency Ethics Official or designee to engage in outside employment for pay, “the uncompensated practice of law,” or unpaid outside activity “that involves representation or the rendering of advice or analysis regarding any equal employment law, or serving as an officer or director of an organization whose activities are devoted substantially to equal employment opportunity matters.” 5 C.F.R. § 7201.103 (b).

The EEOC’s ethics officials are identified in subsection 4, below.

3. Recusal Obligations of an Attorney Whose Spouse is an Attorney Engaged in the Private Practice of Employment Law2

a. The Recusal Requirements

Generally, the attorney recusal requirements emanate from the criminal financial conflict of interest statute that applies to federal employees and from OGE’s Standards of Ethical Conduct (discussed in subsection 2.a., above). The financial conflict of interest statute prohibits any federal employee from participating personally and substantially in any matter in which the employee or the employee’s spouse has a financial interest, if the matter will have a direct and predictable effect on that interest. 18 U.S.C. § 208(a). OGE’s Standards of Ethical Conduct contain a similar financial conflict of interest provision, 5 C.F.R. § 2635.401, and also, at 5 C.F.R. § 2635.502(a), contain a broader impartiality conflict of interest provision:

Where an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency designee of the appearance problem and received authorization from the agency designee . . .

Since EEOC attorneys have "covered relationships" with their spouses' employers and their spouses' clients, the Standards of Ethical Conduct provision require recusal under the following circumstances.

  • EEOC attorneys must recuse themselves from any charge or lawsuit in which their spouse's law firm represents a party, regardless of whether the spouse is the attorney on the case.
  • EEOC attorneys must recuse themselves from any case in which any client of the spouse is a party, whether or not the spouse’s firm is representing the client in the EEOC case.

However, EEOC attorneys are not required to recuse themselves from cases involving a client of the spouse’s firm (not the spouse’s client), as long as the firm is not representing that client in the EEOC matter. If the EEOC attorney’s spouse leaves the firm or no longer represents the client and does not plan to represent that client in the future, then the EEOC attorney’s obligation to recuse himself or herself ends.

With respect to attorney referral programs, EEOC attorneys should not participate in decisions to add their spouses or their spouses' firms to a referral list or in decisions to refer charging parties to their spouses or their spouses' firms, unless the entire list is provided or referrals are made automatically and without the exercise of discretion.

b. Questions about Recusal

Should an employee have any questions about whether other circumstances might raise a question about his or her impartiality, the Standards of Ethical Conduct recommend seeking the assistance of the employee’s supervisor, an agency ethics official, or the agency designee. 5 C.F.R. § 2635.502(a)(1). The EEOC’s ethics officials are identified in subsection 4, immediately below.

4. EEOC Ethics Officials Who to Contact Regarding Ethics/Conflicts Issues

Designated Agency Ethics Official
Peggy R. Mastroianni
Acting Legal Counsel
Alternate Designated Agency Ethics Official
Thomas J. Schlageter, Director
Advice and External Litigation Division, OLC
Deputy Ethics Counselors
For all field legal unit employees
Office Directors
For OGC-HQ employees
James L. Lee
Deputy General Counsel
Informal Advice Liaison Attorneys
Advice and External Litigation Division, OLC

5. Web Resources on Ethical Issues

Title Description and Web Site Address
Hatch Act for Federal Employees Discussion of restrictions on political activity by federal government employees under the Hatch Act, on the Web site of the U.S. Office of Special Counsel. http://www.osc.gov/hatchact.htm
Principles of Ethical Conduct for Government Officers and Employees, Executive Orders 12674 and 12731 Principles of Ethical Conduct for Government Officers and Employees, Executive Order 12674 (1989), as amended by Executive Order 12731 (1990), on Web site of U.S. Office of Government Ethics (OGE). http://www.usoge.gov/pages/laws_regs_fedreg_stats/exec_orders.html
Standards of Ethical Conduct for Employees of the Executive Branch Standards of Ethical Conduct for Employees of the Executive Branch, at 5 C.F.R. Part 2635 - rules on gifts, conflicting financial interests, seeking other employment, and other issues. Indexed on OGE’s Web site with section-by-section links to the regulations on the Web site of the Government Printing Office (GPO). http://www.usoge.gov/pages/laws_regs_fedreg_stats/oge_regs/5cfr2635.html
Supplemental Standards of Ethical Conduct, 5 C.F.R. Part 7201 EEOC regulations, 5 C.F.R. Part 7201, Supplemental Standards of Ethical Conduct for Employees of the Equal Employment Opportunity Commission, on GPO’s Web site. http://www.access.gpo.gov/nara/cfr/waisidx_02/5cfr7201_02.html
U.S. Code Current version of U.S. Code on GPO’s Web site. http://www.gpoaccess.gov/uscode/index.html

1 This guidance on the outside practice of law is drawn in part from a January 13, 1993, memorandum from OLC to all EEOC employees, New Standards of Ethical Conduct for the Executive Branch.

2 This guidance on recusal obligations is based on an Advisory Memorandum from OLC, dated December 22, 2000.