When facing an adverse personnel action (such as removal, demotion, etc.), or other issue necessitating some form of representation (such as EEO, administrative grievance, etc.), federal employees at all grade levels must decided whether they will engage some form of representation or consultation in responding to, or appealing, the action or issue. Bargaining unit employees will have the opportunity to utilize local union services, typically at no or a nominal cost. Non-bargaining unit members will not have this choice. However, both bargaining and non-bargaining unit employees have access to alternative, and more effective, forms of consultation or direct representation.
At InformedFed, we typically advise potential clients to retain attorney/legal services (direct legal representation) in just over thirty-percent of the inquiries we receive. There are many reasons for this, but all are based on our initial potential client consultation and certain variables presented by the client as well as our judgement of the client’s capacity in assisting in his or her own representation. In this article, we will try to cover primary options employees should consider for representation including the pro’s and cons’s of each.
Despite any formal legal education they may have, consultants are not practicing attorneys and this is made very clear during the initial consultation call. Consultants are senior level federal employee and labor relations practitioners with years of proven experience and academic credentials (the consultant will provide you a link to their professional LinkedIn profile). They act as your private consultant in the same capacity they act with agency manager and executive clients. Consultants provide direct advice concerning your issues, prepare official correspondence for your signature, conduct case research and application for you, prepare formal filings for your signature, prepare motions and arguments for your submission, review settlement agreements, review and conduct analysis of investigative findings, respond to motions, conduct case mapping, etc. In all cases, the client remains the final “decision maker” and acts on their own behalf, free to disregard or modify our counsel. One key difference between a consultant and attorney is that the consultant does not directly represent you before the agency or other administrative authority (such as MSPB, FLRA, EEOC) in that a consultant does not “speak on your behalf.” Though consultants may prepare documents and filings, at all times the client is responsible for making timely submission of such documents and filings (though we may electronically transmit them ourselves at times). Another key difference (for most federal employees) when comparing a consultant to an attorney is cost. Consultants do not require large retainers or expensive fees normally associated with retaining formal legal counsel. Current hourly rates are $150 an hour with a minimum retainer of four hours ($600) with the typical retainer at 8 hours ($1200) though there are instances in which may accept a lower retainer rate depending on the issue. In some cases, a flat fee rate may be applicable. There is no requirement a consultant be physically located near you for representational purposes. Bargaining unit members wishing to retain the services of a consultant also do not require notification to, or the permission of, the local union. Consultants may assist the client up until hearing stage and then conduct a “warm hand-off” to a qualified attorney or union representative to take the case to hearing if the client elects this as a preference. In some instances, a consultant will also work with (but not for) a client’s attorney or union. Finally, consultant services may prove the most effective balance in protecting your interests and cost containment, provided you are willing to be involved in your own representation.
Attorneys are formally trained and credentialed in the practice of law. Some attorneys specialize in public personnel law and fewer number specialize in the representation of federal employees (they can actually be hard to find). We always recommend you only seek specialized representation and not rely on general or non-specialized attorneys. If we refer you to an attorney, it will only be a specialized attorney and we receive no compensation or benefit from such a referral and maintain no informal or formal association in that regard. Attorneys essentially do all the work for you in your representation, though understandably at a much higher cost. We have seen hourly fees range from $275 to $400 with retainers between $8,0000 to $12,000 (some cases higher depending on the issues). In many cases, those fees are recoverable upon successful appeal unlike fees paid to consultants. Very few attorneys can be retained under what is commonly referred to as a “contingency fee” and we very rarely see pro bono cases unless the issue is of such importance that certain organizations are willing to underwrite the cost. Some employees are willing to pay the much higher up-front and hourly fees for attorneys in return for having the attorney do all the work. This is completely understandable. If you retain an attorney specializing in the representation of federal employees, depending on your issues, they should be completely familiar with all processes and practices of MSPB, FLRA, EEOC, arbitration, administrative grievances, revocation of privileges and credentials, etc… Like with a consultant. there is no requirement an attorney be physically located near you for representational purposes. Bargaining unit members wishing to retain the services of an attorney typically must obtain the permission of the local union. Consult your local union officials or Master Agreement (union contract) for more information.
Bargaining unit members, dues paying or not, are eligible to be represented by the union. Our general collective observation regarding such services is that the quality and reliability vary widely. The overwhelming majority of federal union representatives at the local, and even intermediate levels of the organization possess no formal education or credentials in the representation of federal employees. Some may be trained through internal training programs providing some limited value, particularly when considering high transition rates of local union representatives combined with the largely personality driven organizational culture of most local unions. Of course, there are exceptions to this observed generalization. Notably, such exceptions exist with local unions incorporating qualified in house legal counsel or tight integration of external Legal Defense Plan’s or Legal Defense Funds (LDP’s / LDF’s), most notably organizations like PORAC (Peace Officers Research Association California). In some cases, local unions will pay consultant fees directly or reimburse such fees to the qualified bargaining unit employee. Rarely will a local union pay attorney fees unless such payment is already a provision of membership in the organization.
Whether you elect to obtain any form of representation or “go it alone,” the bottom line is that you should make a determination as quickly as possible. There are always time limits associated with any issue or action. For example, with the Merit Systems Protection Board, you only have thirty-days to initiate an appeal whereas with EEOC you have forty-five days. There are usually nuances associated with time limits as well. For example, whether an agency noticed you concerning appeal rights concerning an adverse action or establishing initial contact with an EEO counselor. Appeals and formal complaints can become very complicated and the longer you wait, the more difficult it will become to either properly represent yourself or obtain qualified assistance.