Massey v. Brown

NEBEKER, Chief Judge,

concurring:

I concur in the order of the Court. I write separately to express the hope that the General Counsel, who represents the Secretary in all matters before the Court, will take steps to ensure that the type of argument which the Court witnessed in this appeal will not be repeated in the future. The issue before the Court was whether the appellant should receive an attorney’s fee under the Equal Access to Justice Act (EAJA). In apparently seeking to persuade the Court to deny or reduce the award, of attorney’s fees on the ground that some of the points originally raised by counsel for appellant during the substantive phase were meritless, the Deputy Assistant General Counsel stated:

In our view, this case represents an instance in which the individual client’s interest was subordinated to counsel’s interest in securing resolution of the general cause. In viewing this case, it is clear that, by attacking the rating schedule, and by arguing that this Court did not have the authority to remand cases where the Secretary confesses error and suggests remand, that there be [sic] ramifications well beyond this individual client and it would not benefit this client. In fact, all he did was prolong this litigation for an additional year.

Subsequently, in response to a question, the Deputy Assistant General Counsel again asserted that it is “our view of the case” that the appellant’s counsel was “following an agenda to attack this rating schedule and to attack the Court’s jurisdiction to remand the case” and that “his client was not served by the continuation of the arguments-” .

It appears from these statements that counsel was asserting a calculated position on behalf of the Secretary, not one merely resorted to on the spur of the moment, but, in either event, it was most unfortunate. An accusation of a conflict of interest between opposing counsel and his client is a serious one. As such, it must be based on precise facts and not on surmise born of an opposing advocate’s position on the merits of a matter in litigation. Where a lawyer knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to fitness to practice law, such information shall be reported to the appropriate authority. See Model Rules of Professional Conduct, Rule 8.8 (1994) (adopted by this Court’s order of August 1, 1992, to include future amendments unless expressly rejected).

This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.

Model Rules Of Professional Conduct, Rule 8.3 cmt. (1994). Counsel are reminded that a panel of this Court considering the merits of a matter during oral argument is not the appropriate authority contemplated by the Rule.

Appellant’s counsel, who is employed by the Disabled American Veterans to represent veterans in claims matters, has appeared in many cases before the Court. There is nothing in the record of this appeal or any other which would lend even a shred of support to the statements of the Deputy Assistant General Counsel. However, an award of sanctions would make the discipline a matter of dollars which, under these circumstances, *138 would miss the point. In my view, it is better to invite the General Counsel’s attention to the futility and harm inherent in such an argument in the hope that the Secretary’s appellate attorneys will profit from the exercise.