You Are (or Will Be) in an Administrative Proceeding – Do You Really Need a Lawyer?

You believe that you have been discriminated against and want to file an EEO complaint. Or, you believe you have been retaliated against because you disclosed possibly illegal conduct by a supervisor and may want to complain to the Office of the Special Counsel. Or you have been charged with misconduct or poor performance for which you may be disciplined,  with a possible appeal to the Merit Systems Protection Board. Do you need a lawyer?

Generally, an employee may choose to pursue their claims in these administrative forums without the assistance of counsel.  However, proceeding in front of an administrative judge is a legal process that functions much like a court proceeding, and can present significant challenges to employees who do not seek the advice of an attorney.

What does it mean to appear “pro se”?

Nobody is required to retain a lawyer; anyone is permitted to represent themselves and proceed “pro se”, a Latin phrase meaning “for oneself” or “on one’s own behalf.”  The right to self-representation is an important one; however, pro se representation poses a number of risks, and can often put employees at a disadvantage in litigation.

Do you really need a lawyer to assist you with the administrative process?

The short answer is: yes.  Pro se litigants are required to follow the same rules and procedures as attorneys, and courts tend to hold them to the same standards regardless of their lack of formal legal education or training. Here are just a few examples of why it is important to seek the advice of an attorney before appearing before an administrative body:

  • The Other Side. Most importantly, while you may decide to proceed without a lawyer, the Agency will be represented by one or more lawyers. The Agency’s lawyers will know what they’re doing; will you?
  • Deadlines. Legal proceedings can be stressful for many reasons, beginning with the due dates and deadlines that both parties will be required to comply with throughout the litigation.  An experienced attorney will keep you up to date on important deadlines and ensure that your submissions to the court or administrative agency are timely and that they comply with any applicable rules or guidelines, which can vary depending on the forum where your case is pending.
  • Depositions and discovery. After the initial complaint or appeal has been filed, the next step in the administrative process often involves both parties engaging in discovery, a process that involves depositions, and asking for and turning over documents and information to the other side.  For many employees, this can be an overwhelming and time-consuming process that will be much more effective with the assistance of an experienced attorney.  An attorney will ensure that you ask for the information you need, you properly respond to requests directed to you, you ask the right questions during depositions, and generally that your rights are protected at every stage of the legal process.
  • Settlement agreements. If your case does settle, it is important to have an attorney review the settlement agreement before signing.  Every settlement will be in writing, and it will be binding on you when it is completely signed. An attorney should review the agreement to ensure that it accurately reflects the terms you discussed (almost every written agreement includes a warning that anything you discussed but is not in the agreement is gone) and fairly protects your rights.  Reviewing the settlement agreement with an attorney is also important to ensure that you fully understand not only what  you are receiving, but – equally important – what you are giving up.

As we noted above, if you are or will be involved in an administrative proceeding, you are not required to be represented by an attorney. But you should seriously consider the possible consequences before you make that decision.

This blog also appeared in Federal News Network on July 18, 2022.