The decision to engage the services of a consultant or attorney, or even relying on a union representative, arises often with serious federal workplace issues and personnel actions. When facing an adverse personnel action (such as removal, demotion, etc.), or other issue/action necessitating some form of professional representation (such as MSPB, EEO, administrative grievance, etc.), federal employees at all grade levels must decide whether they will engage some form of expert representation or consultation. 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 twenty-percent of the initial inquiries we receive. At hearing stage, we have found that we recommend retaining legal counsel in approximately seventy to eighty percent of cases. There are many reasons for this, but all are based on our initial 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.
Considering a Consultant
Despite any formal legal education and academic credentials 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 decades of proven experience and academic credentials (the consultant will provide you a link to their professional LinkedIn profile). They act as your private confidential consultant in the same capacity an Employee Labor Relations Specialist or EEO program manager would advise and assist agency managers, executive clients, and agency legal counsel. Consultants do many things for clients, including, but not limited to, provide direct advice concerning your issues, prepare official correspondence (including emails), 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.
Key Differences Between Consultant or Attorney
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 directly “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 $160 an hour with a minimum retainer of four hours ($640) with the typical retainer at 8 hours ($1280) 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 that a consultant be physically located near you for representational purposes. In fact, post COVID-19 Pandemic has turned all processes virtual in every instance. Bargaining unit members wishing to retain the services of a consultant also do not require notification to, or the permission of, the local union or agency. Consultants may assist the client up until, and even through, 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 many 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.
Some unions are willing to front, or reimburse, consulting fees to union members.
Considering an Attorney
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 in EEO and MSPB processes (they can actually be hard to find as many have left the business). 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 $300 to $600 with retainers between $8,0000 to $15,000 (some cases higher depending on the issues). In many cases, those fees are recoverable upon successful appeal unlike fees paid to consultants. We are unaware of any attorneys who operate on a “contingency fee” basis. 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 medical 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 and notify the agency (the agency usually has a form for this purpose). Consult your local union officials or Master Agreement (union contract) for more information.
If you are successful at an EEOC or MSPB hearing, your attorney fees will most likely be reimbursed. Some (rare) local unions also have a Legal Services Plan (LSP) that may also provide legal counsel.
Considering the Union (If Available)
Bargaining unit members, dues paying or not, are eligible to be represented by the union in all matters. Our general collective observation regarding such services is that the quality and reliability vary widely, if you can even locate a local union representative. 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 in any venue. 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. InformedFED has trained union representatives that may be available to you. Though unlikely. Of course, there are exceptions to this observed generalization. Notably, such exceptions exist with some local unions incorporating qualified in house legal counsel or tight integration of an external Legal Defense Plan (LDP), Legal Defense Funds (LDF), or Legal Services Plan (LSP). Most notably, organizations suck as PORAC (Peace Officers Research Association California) provide large scale services to many law enforcement officers associated with certain groups. In some cases, local unions will pay consultant or legal fees directly or reimburse such fees to the qualified bargaining unit employee. However, it appears a rare case that a local union pay attorney fees unless such payment is already a provision of membership in the organization. This is primarily due to costs.
Conclusion on Considering a Consultant or Attorney
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 calendar days to initiate an appeal whereas with EEOC you have forty-five calendar 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.
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The contents of this website (InformedFED.com) are intended to convey general information only and not to provide legal advice or opinions. Consultants at InformedFED are not attorneys. They are senior level practitioners of employee labor relations and EEO. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or employment advice in any particular circumstance or situation. The information presented on this website may not reflect the most current legal or regulatory developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. InformedFED is comprised of independent senior level practitioners and consultants who are not employees of InformedFED.