OBA Ethics Counsel
Ethics Opinion No. 259
Adopted May 23, 1970
Can an attorney perform the duties of a Government Appeals Agent within the Selective Service System without violating the Code of Professional Responsibility?
The office of the Government Appeals Agent is established by Section 1604.71 of the Selective Service Regulations. A Government Appeals Agent is not required to be an attorney, but "a person with legal training and experience" is preferred. Sel. Sve. Reg., § 1604.71(c).
The Government Appeals Agent is required "to be equally diligent in protecting the interests of the Government and the rights of the registrant in all matters." Sel. Sve. Reg., § 1604.71(d)(5). His duties are thus incompatible with the existence of an attorney-client relationship between himself and either the registrant or the Selective Service Board.
Ethical Consideration 4_5. Canon 4 of the Code of Professional Responsibility requires the lawyer to not use information acquired in the course of the representation of a client to the disadvantage of that client.
It is obvious that the attorney serving as a Government Appeals Agent cannot ordinarily discharge the requirements of an attorney under Canon 4 insofar as the registrant is concerned if the duties imposed upon the Appeals Agent by § 1604.71(d)(5) of the Selective Service Regulations with respect to the Government are also performed. Thus, the registrant and the Government must be made to clearly understand at the outset of any case referred to the Appeals Agent that there is no confidential relationship between the Appeals Agent and the registrant and that consistent with the Selective Service Regulations, any information obtained by the Government Appeals Agent may be provided to the local board when the Appeals Agent recommends that the case be reconsidered by the local board.
In addition, Canon 9 of the Code of Professional Responsibility would require an attorney acting as a Government Appeals Agent to forcefully inform any registrant who seeks his counsel or assistance that any matters disclosed by the registrant may be reported to the local board. The registrant should also be told that the Appeals Agent cannot represent the registrant as a lawyer since it is as much the Agent's duty to protect the Government's rights as it is to protect the rights of the registrant.
If the above precautions are taken, an attorney may properly serve as a Government Appeals Agent. Lawyers are often called upon to serve as public officers, and it is highly desirable that whenever possible they accept these opportunities. Because of their training, experience, and background, lawyers are uniquely qualified to make significant contributions not only to the legal system, but to other related areas as well. See Ethical Consideration 8_8, Canon 8 of the Code of Professional Responsibility.