Appendix to Part 145 - Legal Representation
32:1.1.1.4.41.0.44.7.28 :
Appendix to Part 145 - Legal Representation
1. An employee or member of the Armed Forces asked to provide
information (testimonial or documentary) to the OSC in the course
of an investigation by that office may obtain legal advice from DoD
attorneys, both civilian and military, on that employee's or
members's rights and obligations. This includes assistance at any
interviews with OSC investigators. However, the attorney-client
relationship shall not be established unless the employee is
suspected or accused by the OSC of committing a prohibited
personnel practice or other illegal or improper act and has been
assigned DoD counsel.
2. An employee who believes that he or she is suspected or has
been accused by the OSC of committing a prohibited personnel
practice or other illegal or improper act may obtain legal
representation from the Department of Defense under the conditions
prescribed in § 145(b)(1) of this part, except as provided in
section 7, below. The attorney assigned shall be a military member
or employee from another Component whenever an attorney from the
same Component is likely to face a conflict between his or her
ethical obligation to the employee client and to the Component
employer, and in any case where the suspected or accused employee
has requested representation from another Component. Outside legal
counsel may be retained by the Component on behalf of the employee
only under unusual circumstances and only with the personal
approval of the General Counsel of the Department of Defense.
3. The General Counsel responsible for authorizing
representation shall determine whether a conflict is liable to
occur if an attorney from the same Component is assigned to
represent the employee and, in that case or in a case in which the
suspected or accused employee has requested representation from
another Component, shall seek the assistance of another General
Counsel in obtaining representation from outside the Component. The
General Counsels of the Military Departments and the DLA shall
ensure the availability of appropriately trained counsel for
assignment to such cases.
4. To obtain legal representation the employee:
a. Must request legal representation, in writing, together with
all process and pleadings served, and explain the circumstances
that justify DoD legal assistance.
b. Indicate whether he or she has retained legal counsel from
outside the Department of Defense.
c. Obtain a written certification from his or her supervisor
that the employee was acting within the scope of his of her
official duties, and that no adverse or disciplinary personnel
action against the employee for the conduct being investigated by
the OSC has been initiated by the Component.
5. Employee requests for legal representation must be approved
by the General Counsel, DoD, for employees of OSD or a Defense
Agency (other than the DLA), or by the General Counsel of a
Military Department or the General Counsel of the DLA for employees
of those Components.
6. The conditions of legal representation must be explained to
the accused employee in writing and accepted in writing by that
employee.
7. DoD resources may not be used to provide legal representation
for an employee with respect to a DoD disciplinary action against
the employee for committing or participating in a prohibited
personnel practice or for engaging in illegal or improper conduct,
regardless of whether that participation or conduct is also the
basis for disciplinary action proposed by the OSC.
8. After approval of an employee's request, under section 4,
above, a DoD attorney shall be assigned (or, in unusual
circumstances, outside counsel retained) as the employee's
representative in matters pending before the OSC or MSPB. This
approval may be limited to representing the employee only with
respect to some of the pending matters if other specific matters of
concern to the OSC or MSPB do not satisfy the requirements of his
Directive.
9. An attorney-client relationship shall be established and
continued between the suspected or accused employee and assigned
DoD counsel.
10. In representing a DoD employee under this part, a DoD
attorney designated counsel for the employee shall act as a
vigorous advocate of the employee's individual legal interests
before the OSC or MSPB; the attorney's professional responsibility
to the Department of Defense and his or her employing Component
will be satisfied by fulfilling this responsibility to the
employee. Legal representation may be terminated only with the
approval of the General Counsel who authorized representation, and
normally only on the basis of information not available at the time
the attorney was assigned.
11. The attorney-client relationship may be terminated if the
assigned DoD counsel for the employee determines, with the approval
of the General Counsel who authorizes representation, that:
a. The employee was acting outside the scope of his or her
official duties when engaging in the conduct that is the basis for
the OSC investigation or charge.
b. Termination of the professional representation is not in
violation of the rules of professional conduct applicable to the
assigned counsel.
12. The DoD attorney designated counsel may request relief from
the duties of representation or counseling without being required
to furnish explanatory information that might compromise the
assurance to the client of confidentiality.
13. This part authorizes cognizant DoD officials to approve a
represented employee's request for travel, per diem, witness
appearances, or other departmental support necessary to ensure
effective legal representation of the employee by the designated
counsel.
14. An employee's participation in OSC investigations, MSPB
hearings, and other related proceedings shall be considered
official departmental business for time and attendance requirements
and similar purposes.
15. The following advice to employees questioned during the
course of an OSC investigation may be appropriate in response to
the most frequent inquiries:
a. An employee may decline to provide a “yes” or “no” answer in
favor of a more qualified answer when this is necessary to ensure
accuracy in responding to an OSC interviewer's questions.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
c. Means to ensure verification of an interview by OSC
investigators are appropriate, whether the employee is or is not
accompanied by a legal representative. Tape recorders may only be
used for this purpose when:
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC interrogator agrees to the tape recording of the
proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the interviewer should be corrected before the employee
signs the statement. The employee is not required to sign any
written summary that is not completely accurate. An employee may
make a copy of the summary for his or her own use as a condition of
signing.