If Your "Supervisor" is a Non-Attorney
By James A. Hill, President of NTEU Chapter 224
October 8, 1999

The Management and Union representatives agreed on September 30, 1999, in the final meeting which produced this Partnership Agreement that the "Partnership [bargaining] History" for Sections 2.02 and 2.03 of the final Partnership Agreement on HPI will show that these sections mean the same thing as Sections 2.04, 2.05, 2.06 and 2.07 of the Union Proposal that was on the table at that time. Those sections are reproduced below as they appeared in the Union Proposal (with a corrected citation in Section 2.05).

Associate Commissioner Rita Geier stated that the clause "Consistent with the efficient and effective use of resources" in Section 2.03 was a "rule of reason to avoid extreme circumstances." The Union presented a hypothetical situation meant to illustrate the meaning of the clause as follows:

Assume that none of the group supervisors is an attorney and that the hearing office director is not an attorney. While management could hire an additional supervisor who is an attorney to supervisor the attorneys in the office, consistent with the efficient and effective use of resources, the Agency could instead have the HOCALJ perform direct supervision, including the appraisal, of the legal aspects of the attorney's work and work product.

The Management team indicated that this hypothetical situation correctly described the meaning of that clause.

The bargaining history for Sections 2.02 and 2.03 include the specific language below which was included in the Union's proposed agreement. Management agreed that Sections 2.02 and 2.03 of the HPI Partnership Agreement encompass the following language. Those sections must be interpreted consistent with the following:

Sections 2.04, 2.05, 2.06 and 2.07 from the "Partnership [bargaining] History":

Section 2.04 of the Union Proposal

In the event that supervision of an attorney by a non-attorney is unavoidable, the supervision of the professional work of a GS-905 9/11/12 attorney, shall be as follows:

The Processing Group Supervisor, if that individual in an attorney; If the Processing Group Supervisor is not an attorney, the Hearing Officer Director, if that individual is an attorney; If neither the Processing Group Supervisor nor the Hearing Officer Director is an attorney, the Hearing Office Chief Administrative Law Judge

In the event that supervision of an attorney by a non-attorney is unavoidable, the supervision of the professional work of a GS-905 13 attorney, shall be as follows:

The Hearing Officer Director, if that individual is an attorney; If neither the Processing Group Supervisor nor the Hearing Officer Director is an attorney, the Hearing Office Chief Administrative Law Judge

Section 2.05 of the Union Proposal

When in the reasonable judgement of an attorney, supervision by a non-attorney for a particular activity will violate the ethical cannons, supervision for that activity will be performed by an attorney as determined by Section . . . [2.04] until the issue is settled at the national level and/or after the attorney and the Agency receives an opinion of the appropriate Bar as to whether the activity is permitted or will cause an ethical dilemma. During the interim, failure to follow the instructions of the non-attorney supervisor on the issue will not constitute insubordination and no action such as a reprimand or a suspension will be taken regardless of the ultimate decision.

Section 2.06 of the Union Proposal

A non-attorney supervisor may supervise the non professional activities of an attorney such as time and attendance and the routine assignment of cases if this is done on a non-judgemental basis and does not involve determination of skill level.

Section 2.07 of the Union Proposal

The parties recognize that while a non-attorney may supervise the non-professional aspects of the job such as time and attendance and approval of administrative leave, they may not supervise the professional aspects of the job such as evaluating the legal work product of the attorney or take any action which would compromise the legal judgment of the attorney or require that an attorney take an action or refrain from an action mandated or proscribed by the Canon of Ethics as appropriate (e.g., instructing them to follow any ALJ instructions in a case or requiring discussion of the interpretation of instructions or determining legal issues in a case).

• HPI Partnership Agreement — October 4, 1999