AR 7-9 LEGAL REPRESENTATION PROVIDED TO AGENCY EMPLOYEES

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06235331
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 4
• Document Creation Date: March 9, 2023
• Document Release Date: January 5, 2021
• Case Number: F-2011-01517
• Publication Date: May 23, 1997

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UNCLASSIFIED
Date: 05/23/97 (Regulations may contain various dates)
Category: 7 - Management
OPR: OGC
Title: AR 7-9 LEGAL REPRESENTATION PROVIDED TO AGENCY
EMPLOYEES
This regulation was written 6y the Office of general Counsel;
(secure).
9. LEGAL REPRESENTATION PROVIDED TO AGENCY EMPLOYEES
SYNOPSIS. This regulation sets forth the policy and procedures under which Agency
employees may be provided legal counsel by the Department of Justice or private
counsel at Government expense in State criminal proceedings and in civil and
congressional proceedings in which they are sued or subpoenaed in their individual
capacities. Policy also is set forth regarding indemnification for the reasonable costs of
legal representation by private counsel and for the amount of any judgment or fine
entered against an employee or certain independent contractors. (NOTE: Boldfaced
text in the regulation indicates revisions.)
a. AUTHORITY. Sections 6 and 8 of the Central Intelligence Agency Act of 1949, as
amended (50 U.S.C. 403g and 403j); and Title 28, Code of Federal Regulations, Sections
50.15 and 50.16.
b. GENERAL. Pursuant to the Department of Justice policy and guidelines published in Title
28, Code of Federal Regulations, Sections 50.15 and 50.16, Department of Justice legal
counsel or private counsel (as specified below) may be provided to Agency employees who
are involved as individuals in employment-related judicial or congressional proceedings. For
purposes of this regulation, the term "employee" includes present and former CIA officers
and employees. These provisions of 28 C.F.R. are summarized below.
c. POLICY. An employee may be represented by Department of Justice attorneys or private
counsel at Government expense (as specified below) in State criminal proceedings and in
civil and congressional proceedings in which the employee is sued or subpoenaed in his or
her individual capacity if the acts which constitute the subject of the proceeding reasonably
appear to have been performed within the scope of his or her employment.
d. RESPONSIBILITIES AND PROCEDURES
(1) Any employee who believes he or she is entitled to such representation must submit a
request, accompanied by all relevant legal documents, to the Office of General Counsel
(OGC), hereby designated the recipient of such requests for these purposes.
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(2) OGC will investigate as necessary and submit to the Department of Justice a statement as
to whether the actions were performed within the scope of employment and a
recommendation as to whether Department of Justice representation should be provided.
Upon receipt of these materials, the Department of Justice has the responsibility to
determine whether the employee's actions reasonably appear to have been performed
within the scope of his or her employment and whether providing legal representation is
in the interests of the United States. The employee will be notified of the Department of
Justice determination.
(3) In emergency situations, the Department of Justice may initiate conditional representation
after communication by telephone with OGC. However, appropriate written data must be
provided subsequently.
(4) Where there is the possibility of a Federal criminal investigation or indictment relating to
the same subject matter for which representation is sought, the Department of Justice will
determine whether the employee is either a subject of a Federal criminal investigation or
a defendant in a Federal criminal case.
(5) If it is determined that the employee is not the subject of a criminal investigation
concerning the act or acts for which representation is sought or if there is an ongoing
investigation but into an unrelated matter, representation may be provided.
(6) If it is determined that the employee is the subject of a criminal investigation concerning
the act or acts for which representation is sought but no decision to seek an indictment or
issue an information has been made, a private attorney may be provided at Federal
expense.
(7) In some situations where conflicts exist between the legal or factual positions of various
employees in the same case, separate Department of Justice representation or private
counsel at Federal expense may be provided.
(8) Once undertaken, representation will continue until all appropriate proceedings, including
applicable appellate proceedings, have ended or until any of the bases for withdrawal set
forth in 28 C.F.R. � 50.15 are found to exist. If withdrawal occurs, it will be done in the
least prejudicial manner.
(9) Representation generally is not available to a Federal employee where the
representation requested is in connection with a Federal criminal proceeding in
which the employee is a defendant.
(10) Representation is not available to a Federal employee where:
(a) The employee is a subject of a Federal criminal investigation on the same subject
matter.
(b) The act or acts with regard to which the employee desires representation do not
reasonably appear to have been performed within the scope of his or her employment
with the Federal Government.
(c) It is otherwise determined by the Department of Justice that it is not in the interest of
the United States to represent the employee.
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(11) In certain situations where Department of Justice attorneys may not represent the
employee, the Department may provide private counsel or reimburse the employee
for the fees of private counsel. In such cases, the following procedures will apply:
(a) The Department of Justice must approve in advance any private counsel to be
retained under this regulation. Where national security interests may be involved, the
Department of Justice will consult with OGC.
(b) Federal payments to private counsel for an employee will cease if the private
counsel violates any terms of the retention agreement or if the Department of
Justice:
(1) Decides to seek an indictment of or to issue an information against that employee
on a Federal criminal charge relating to the act or acts concerning which
representation was undertaken.
(2) Determines that the employee's actions do not reasonably appear to have been
performed within the scope of his or her employment.
(3) Resolves any conflict described in Title 28, Code of Federal Regulations, Section
50.15(a)(6), (9), or (10) and tenders representation by Department of Justice
attorneys.
(4) Determines that representation is not in the interest of the United States.
(5) Terminates the retainer with the concurrence of the employee-client for any
reason.
(12) All communications on these matters between an employee and OGC or any Department
of Justice attorneys who represent the employee, even should that representation be
discontinued for any reason, is governed by the attorney-client privilege.
(13) In all instances, legal representatives must possess security clearances or security access
approvals consistent with the national security classification or other access requirements
of information that will be shared with the attorney provided or retained. OGC will
ensure that appropriate clearances or access approvals are certified or granted.
e. AGENCY INDEMNIFICATION
(1) Any person described in paragraph (2) below who, as a result of activities carried out
within the scope of his or her employment, is sued, subpoenaed, or investigated in his or
her individual capacity, or is subjected to investigatory, administrative, professional, or
State proceedings of any nature, may be indemnified under Section 8 of the Central
Intelligence Agency Act of 1949, as amended, for the costs of legal representation by
private counsel and for the amount of any judgment or fine entered against that person if
the General Counsel, in his or her sole and unreviewable discretion, determines that the
person appears to have been acting in good faith and within the scope of his or her
employment, that such indemnification would be in the interests of the Agency, and
under all of the circumstances, taking into account the legal expenses and the amount of
any judgment or fine, the indemnification would be fair and reasonable. Any decision
regarding indemnification of the General Counsel shall be made by the Director of the
Central Intelligence Agency in his sole and unreviewable discretion.
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(2) This paragraph applies to all Agency officers and employees and to any independent
contractor with the Agency whose contract contains an indemnification provision.
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