1ms-

Ethics/Professional Responsibility

North Alabama ChapterFederal Bar Association

2ms-

AGENDA

• References

• Organization as Client (Rule 1.13)

• Candor Toward Tribunal (Rule 3.3)

• Misconduct (Rule 8.4)

• Civility

• Hot Topics in Standards of Conduct

- Pornography

- Furlough

3ms-

REFERENCES• ABA Model Rules, Alabama Rules of Professional Conduct,

Army and Air Force Rules of Professional Conduct

• Executive Order 12674, “Principles of Ethical Conduct for Government Officers and Employees,” Apr. 12, 1989

• Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR § 2635 (OGE Rules)

• DoD 5500.7-R, Joint Ethics Regulation (JER)• Professional Responsibility Briefing, LtCol Brett W. Downey• DoD Inspector General – www.dodig.mil• DOJ press release webpage, keyword “ethics”:

http://www.justice.gov/opa/pr/2013/March/

4ms-

REFERENCES• Each year, OGE issues a memo containing a list of several Federal conflict of interest prosecutions

that occurred during the previous year. These OGE memos (from 1990 to 2011) are at:

•   http://www.oge.gov/Topics/Enforcement/Conflict-of-Interest-Prosecution-Surveys/

•  OGE memo entitled “Recent Cases Involving Ethics and Conflicts of Interest at the Merit Systems Protection Board” (August 2011, 14 pages, contains summaries of 21 cases). The memo is at:

•  http://www.oge.gov/uploadedFiles/Education/Education_Resources_for_Ethics_Officials/Resources/Assets_Non-Searchable/Breakout%2049%20Real%20Ethics%20Tips%20and%20Trends%20in%20Ethics%20Enforcement%20Discipline%20for%20Violations%20of%20COI%20Statutes.pdf>

•  The DoD Standards of Conduct Office (DoD/GC-SOCO) has collected a large number of examples of real-life violations in the Encyclopedia of Ethical Failure:

•   http://www.dod.mil/dodgc/defense_ethics/resource_library/guidance.htm

 

• •  • You can also go to the

5ms-

Organization as Client (1.13)

6ms-

Organization as Client (1.13)

7ms-

Note: * Center functional office directors report to Agency functional AA. Deputy and below

report to Center leadership.

National Aeronautics and Space Administration

September 2011

Science Mission Directorate

Chief, Safety and Mission Assurance

Kennedy Space Center

Marshall Space Flight Center

Langley Research Center

Stennis Space Center

Johnson Space Center

Dryden Flight Research Center

Goddard Space Flight Center

Glenn Research Center

Jet Propulsion Laboratory

Ames Research CenterMission Support

Directorate

AdministratorDeputy Administrator

Associate Administrator

Chief of StaffAssociate Deputy Administrator

Associate Deputy Administrator for Policy Integration

Assistant Associate Administrator

Chief Engineer

Chief Health and Medical Officer

Chief Financial Officer*

Chief Information Officer*

Chief Scientist

Chief Technologist

Diversity and Equal Opportunity

Legislative and Intergovernmental

Affairs*

International and Interagency Relations

Education Communications*

Small Business Programs

General Counsel

Advisory GroupsNAC and ASAP

Inspector General

Internal Controls and Management Systems

Human Capital Management

Strategic Infrastructure

Headquarters Operations

NASA Shared Services Center

Procurement

Protective Services

NASA Management Office

Aeronautics Research Mission

Directorate

www.nasa.gov

Reporting Structure

Administrator

Deputy Administrator

Associate Administrator

Human Exploration and Operations

Mission Directorate

8ms-

Organization as Client (1.13)

• Represent the organization acting through its authorized officials

• If lawyer knows that an officer or employee is acting contrary to legal obligation to organization . . . likely to result in substantial harm, then attorney shall proceed as reasonably necessary in best interests of organization

• Measures should be taken to minimize disruption of organization, such as referring the matter to higher authority, including referral to the highest authority that can act on behalf of the organization

• In dealing with employees . . . Lawyer shall explain identity of client when organizational interests are in conflict with individual interests

9ms-

Organization as Client (1.13)

• Engineer in your organization is certifying an environmental report. He has some concerns about the accuracy of the disclosures but is convinced he is doing “what the Boss wants”. He discusses the details of the report with you.

• Contracting officer raises impartiality issues of Source Selection Authority with you, but is reluctant to take action because “this acquisition is critical and we have to stay on schedule”.

• In an EEO case the management officials involved are not forthcoming in their rationale for particular decisions and you question whether prohibited discrimination has occurred.

10ms-

Candor Toward Tribunal (3.3)

• A Lawyer shall not knowingly:

- Make a false statement of fact or law to a tribunal or fail to correct a false statement previously made

- Fail to disclose known adverse legal authority- Offer evidence lawyer knows to be false

• May refuse to offer evidence reasonably believed to be false

• U.S. v. Shaffer Equipment, 11 F.3d 450 (4th Cir. 1993)• Court dismissed case due to EPAs breach of candor to

court; finding on scene coordinator for CERCLA cleanup action had misrepresented his credentials and the government’s attorney failed to reveal the misrepresentation

11ms-

Candor Toward Tribunal (3.3)

• Example from Deborah Rhode’s book, In the Interests of Justice: Reforming the Legal Profession (2000).

- Clients seeking damages as result of exposure to asbestos- Firm representing clients provided a memo to help prepare

them for depositions, the memo was sent to opposing counsel by mistake

- Memo said: Don’t mention existence of this memo!- When identifying particular asbestos products, remember to

say you saw defendants NAMES on the product.- Try to remember how close you were, how often you were in

contact with the product.- It is important to maintain that you NEVER saw any labels

that said WARNING or DANGER• Firm was embarrassed but no disciplinary action . . . Should

there have been?

12ms-

Misconduct (8.4)

• Professional misconduct for lawyer to:

- Violate or attempt to violate the Rules

- Commit a criminal act that reflects adversely on honesty, trustworthiness or fitness as lawyer

- Engage in conduct involving dishonesty, fraud, deceit or misrepresentation

- Engage in conduct prejudicial to administration of justice

- State or imply an ability to improperly influence government agency or official

13ms-

Misconduct (8.4)Oregon: attorney posted message on internet site in name of high school

teacher, implying teacher had sex with students

Ohio: attorney convinced his client to sign a general power of attorney – he took his clients cars, money, and Cleveland Brown’s tickets!

Ohio: attorney sent sexually explicit text messages, pictures to divorce client; had previously received reprimand for similar conduct

Louisiana: during settlement discussions the conversation took a turn for the worse when the attorney threatened “I’ll kick your ass … “

Social Media:

FL attorney reprimanded for criticizing Judge on Blog: called Judge an “evil, unfair witch”, “seemingly mentally ill”

NC Judge reprimanded because he was face book friends with attorney appearing before him (exchanged comments about cases on face book)

CA attorney posted fake positive law firm reviews on Yelp.com; said firm “seriously rocks” and “puts the smack down on creditor harassment”

14ms-

Civility

“When lawyers themselves generate conflict, rather than focusing on the dispute between the parties they represent, it distorts our adversarial system. More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”

Justice Sandra Day O’Connor

Alabama Rules of Professional Conduct?

Army Rules?

Air Force TJAG Memo specifically addressing civility:

• Treating others with courtesy, consideration, and mutual respect, regardless of the cause they espouse, enhances the dignity of the profession of law and the satisfaction of all who are affected by it

• Incivility undermines the administration of justice, diminishes respect for the profession and for the results of our system

15ms-

2013 Encyclopedia of Ethical Failure

• Misuse of Government Resources:• An Army employee went out drinking with a group of co-

workers and ran his car aground on top of a sandbar. The vehicle was a GOV and before the car could be freed, police officers arrived. The employee was arrested, refused to take a breathalyzer & was jailed for 10 days; the car impounded. Penalty:

• The Ultimate Deceit:• Navy CDR (married with children) had an affair with a woman

he met on a dating website. After about 6 months the CDR grew tired of the relationship and ended it by sending a fictitious email informing her he had been killed. The CDR relocated with his family to begin a new assignment. When the mistress showed up at the CDRs home to pay her respects, she was informed of the CDRs reassignment and location. Penalty:

16ms-

Army Officer Convicted on Federal theft & False Statement Charges

17ms-

Huntsville Army Officer Convicted of False Statements and Theft of Government Property

• January 17, 2013 - A federal jury convicted a U.S. Army officer for making false statements {on his OGE 450} and for stealing government property. Penalty: 2 Years probation, 6 months house arrest, fine of 25K and $1600 in restitution (See “Your posters are my posters”, 2013 Encyclopedia)

• OGE 450, security questionnaire, outside business, misuse of position.

• “The citizens are entitled to expect honesty and integrity from all government employees, including military personnel,” Vance said. “This case is important because it demonstrates our commitment to investigating and prosecuting those who do not live up to the trust that our citizens have placed in them,” she said.

18ms-

MDA in the News

19ms-

FURLOUGH• DoD Seeking employment guidance:

- Ethics Counselor’s Desk Book: www.dod.mil/dodgc/defense_ethics/

- Financial Disclosure Filers:

Within DoD, financial disclosure filers must obtain prior written approval from their “Agency Designee” before working for a prohibited source. Permission shall be granted unless the outside activity involves conduct prohibited by statute or regulation. 5 C.F.R. § 2635.803, 5 C.F.R. § 3601.107; JER §§ 2-206, 3-306

• Any special Army guidance?

• AF requirement that ALL financial disclosure filers obtain prior written approval, see AF Form 3902

20ms-

DoD Inspector General Website FOIA Reading Room

• Mr. Steven Calvery, SES, Director Pentagon Force Protection Agency: Misuse of position (JER), misused his subordinates, improperly authorized admin leave (FMR), preferential treatment in violation of merit system principles. Allowed family member to use PFPA firing range, routinely had his office staff order and pick up his lunch/coffee, granted admin leave for PFPA golf tournaments, recommended a candidate be removed from the promotion list to accommodate his subordinate.

• LTG/MG Fil, US Army, Former Commanding General Eighth US Army and Chief of Staff, United Nations Command/Combined Armed Forces Command: Improper acceptance of and failure to report gifts (on his SF 278) received because of official position (JER). Montblanc pen set, brief case, $3000 cash gift.

21ms-

DoD Inspector General Website FOIA Reading Room

• Dr. Carol Lowman, SES, Executive Director US Army Contracting Command: Used her Government Travel Charge Card for unauthorized personal use (designer cosmetics, nail salon not related to official travel) in violation of the FMR. No response.

• VADM Phil Wisecup, US Navy Inspector General: Improperly endorsed a non-Federal entity in a promotional video, in uniform, without a disclaimer (JER). VADM Wisecup did not fully staff the request, did not seek DON approval or sign a disclaimer. LMH, a division of Lincoln Property Company, managed the Executive housing at the Washington Navy Yard; Wisecup’s response: intent was to convey a “well done” to LMH.

• LTG Huntoon, US Army, Superintendent, USMA: misused government resources and personnel for other than official purposes (JER), improperly accepted gifts of services from subordinates. Ladies luncheon’s, progressive dinner, driving lessons, pet care – not satisfied with level of compensation.

22ms-

DoD Inspector General Website What’s New

11/7/2013Former Employee of NSA Subcontractor Pleads Guilty to Filing False Timesheets. Claimed 700 hours more than actually worked for a total of 61K.

11/7/2013Iraqi-Based Construction Company (ICCB) pays 2.7M to US for Alleged False Claims Bribery Scheme. US alleged ICCB paid brides to a COE procurement official in return for bid information. When ICCB won the contract, they overcharged the government.

Note: COE procurement official pled guilty to wire fraud, money laundering and failure to report a foreign bank account – sentenced to 13 years in prison.

23ms-

DoD Inspector General Website What’s New

11/6/2013Navy CDR (Deputy Logistics Officer, Director of Operations for Fleet Logistics Command) charged with Accepting $100,000 in cash and prostitutes in widening International Bribery Scheme. The third senior US Navy official was charged with accepting prostitutes, luxury travel and 100K from a foreign defense contractor in exchange for classified and internal US Navy information.

11/1/2013Former NAVSEA engineer sentenced to 120 months in prison for masterminding a kickback scheme which defrauded the Navy of 18M. From 1999-2011 he used his position at NAVSEA to direct contractor to submit fraudulent invoices, the invoices were paid in full with the contractor distributing the excess to him.

24ms-

DoD Inspector General Website What’s New

10/28/2013Axway, Inc., agrees to pay 6.2M to resolve False Claims Act Allegations related to GSA Multiple Awards Contracts. Axway settled claim that it, and its predecessors over a period of years, provided GSA with defective pricing information in order to obtain and maintain GSA Multiple Award Schedule contracts, permitting them to sell to federal agencies at inflated prices.

10/18/2013Former Boeing Procurement officer gave (2009-2013) Non public competitor bid and historical price information to 3 Boeing sub-contractors. All indicted on multiple counts of mail and wire fraud in connection with bribery/kickback scheme involving Boeing military aircraft parts.

25ms-

Ethics/Professional Responsibility

Final Comments: Protect the Boss by Facilitating Ethical Decisions, Actions, & Appearances; and CYA-Consult Your Attorney!

26ms-

Questions?