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NEWS AND CASE ALERT
June 21st, 2021 | Issue #13-05
TABLE OF CONTENTS
DIFFICULTIES POSED BY CLIENTS’ DISCLOSURES
TO COUNSEL OF CONFIDENTIAL AGENCY INFORMATION
SUGGESTED READING
New 2021 Dewey Books
Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.

DIFFICULTIES POSED BY CLIENTS’ DISCLOSURES TO COUNSEL OF CONFIDENTIAL AGENCY INFORMATION
Josephine Client walks in for a consult or representation, toting a bag of documents. In the course of discussion of the case, Josephine hands over to Peter Attorney a document that looks pretty official: a Social Security or tax record, something bearing classification markings of some sort, a record of a veteran’s care at a VA facility. In the normal course of events, review of documents held by a client is necessary, even protected, under the attorney-client privilege. But the federal sector is not always so normal. Federal statutes may prohibit disclosure to people outside the agency of documents held in the agency. What’s Peter Attorney to do? If Peter has a general idea of the nature of documents that may be involved in the case, Peter might well tell Josephine in advance of the consult or the representation that she is not to provide to him statutorily-protected information. (The same information could likely be obtained, with a protective order, through discovery procedures, or possibly an agreement with agency counsel in advance of litigation.) If that occurred all the time, we’d have nothing to write about (on this topic). But clients or consults (and a consult under ethics regulations is treated as a client) do provide counsel documents that are protected, and the agency finds out. How? If the material is sent by email on an agency network, there may be an alert generated on the system about disclosure of protected information. Or Peter Attorney may use the protected documents in response to discovery requests or as evidence at a hearing (perhaps still not recognizing their protected status).
The Federal Circuit, when considering a removal based on disclosure of statutorily-protected tax information by an IRS revenue agent to counsel, sustained the removal when the appellant made an unauthorized disclosure to her attorney of some protected tax information so to assist the lawyer in providing a defense to a proposed suspension. The court credited the analysis by the MSPB AJ that the appellant had training concerning confidentiality of taxpayer information, and the AJ declined to overrule the agency’s action because the appellant incorrectly believed that attorney-client privilege protected disclosure of the information to her counsel. Reviewing the Board decision, the court explained:
Ms. Vestal was aware that she had multiple resources at her disposal—including her supervisors and the IRS Office of Disclosure Services—to discuss whether and how certain disclosures could be made, and in fact Ms. Vestal had previously consulted the Office of Disclosure Services. Yet she made this disclosure without first consulting any of these resources or otherwise obtaining permission from the agency. She also made the disclosure without first redacting any of the taxpayer information, without relying on any advice from her legal counsel when she made the disclosure, and without knowledge of any rule or regulation permitting the disclosure without prior authorization from the agency.
The court’s discussion turned to an exploration of whether the disclosure was negligent, willful, negligent, intentional, or knowingly wrong, and the analysis did not favor the appellant.
In a more sweeping ruling, Heath v. Dept. of Transp., 64 MSPR 638 (1994), the Board affirmed removal of a motor carrier safety specialist who, to defend a performance-based action, used a government photocopier to copy records containing sensitive information about other employees. Although the records were meant only for the appellant’s attorney, his offense was not excused by the Board after he was removed for charges that included violation of a criminal statute, 18 USC 641, which provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both. . .
There are other cases that attempt to strike a balance between disclosures to counsel in violation of some statutory or regulatory mandate, and the interest in protecting rights under the civil rights or whistleblower laws. Readers may refer to Jacobs v. Schiffer, 204 F.3d 259, 265–66 (D.C. Cir. 2000); Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 722–29 (6th Cir. 2008); and Bennett v. DHHS, CH-0752-12-0193-I-1 (NP 4/2/2014).
Vestal v. Dept. of Treasury, ___F.3d___ (Fed. Cir. 2021) (Judge Plager concurring)
Provides instruction on how to resolve employee grievances, appeals, and complaints. Major topics include discussion of EEO settlements, defining settlement interests, creating settlement options, and finalizing the agreement.
With practice tips, this guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, noteworthy cases, and the Presidential Policy Directive (PPD-19).
SUGGESTED READING
Andrew C. Brunsden, Inspectors General and the Law of Oversight Independence
[Forthcoming in William & Mary Bill of Rights Journal (April 2021)]
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
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A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
This text guides practitioners, HR specialists, and supervisors and managers through the complexities of adverse and performance-based actions with discussion of the governing statutes, regulations, and cases from the MSPB and Federal Circuit and practical advice, strategies, and best practices for navigating these disciplinary processes. Major topics include discussion of the Civil Service Reform Act, statutory and regulatory requirements of adverse actions, the agency’s administrative process in taking adverse actions, substantive rights in performance-based actions, and the agency’s administrative process in taking performance-based actions.
View All of the American Civil Service Law Series online at: deweypub.com/acsls

The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2020 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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