Representation of Government Employees in Cases Where Their Interests Diverge from Those of the United States

Headnotes: 

The Attorney General is authorized to represent the personal interests of government employees sued in their official capacities if it will serve the interests of the United States.

Even if adequate representation of an employee’s personal interests in a lawsuit requires the making of an argument that conflicts with a governmental position, such representation may still serve the interests of the United States.

Where the personal interests of employee-defendants conflict with the interests of the United States, as would be the case if they were to advance an argument that would support a claim against the United States, it would be in appropriate for the Attorney General either to represent them directly or to finance their representation by private counsel.

If the personal interests of employee-defendants potentially conflict with the interests of the United States, the Attorney General may still represent them, if they wish him to do so, without implicating the ethical rule against representing differing interests of multiple clients.

Updated July 9, 2014