Ethical Intersections & the Federal Tort Claims Act: An Approach for Government Attorneys

Abstract

This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible for administering the FTCA should affirmatively help claims enter the FTCA’s adjudicatory system and then treat each claim equally by raising every reasonable defense in every case.

Keywords: Federal Tort Claims Act, legal ethics