LEO: Appearance of Impropriety - Former LE Op. 1299
Appearance of Impropriety - Former Government Attorney:
Representation of Client by Former Government Attorney in
Matter in Which He Was Originally Involved While a Public
September 13, 1990
The Committee herewith renders its reconsideration of the question as
originally posed, related to prior employment as a government attorney
engaged in rulemaking for the federal government, based upon more recent
and clarified recitation of additional facts, incorporating by reference
the Committee's original opinion rendered on November 16, 1989.
As you recently have stated the facts, an attorney, while a federal civil
service employee, provided legal services and supervised other attorneys
who provided legal services to a federal agency in publishing a proposed
regulation which attempted to define an operative term in a federal
statute, which term was material to the agency's enforcement program as a
result of a consent order negotiated by the attorney in question for the
purpose of resolving litigation between the agency and private parties.
After the agency received public comment in response to the proposed
regulation, the attorney further counseled agency officials concerning (i)
legal issues raised in the public comments and (ii) the effect of the
consent order upon the agency's flexibility in interpreting the statutory
term in question.
You have also indicated that, before the agency took any further action,
the attorney transferred to a position with no responsibility for
providing legal services to the agency concerning the interpretive
regulation. After the attorney transferred, the agency amended the
proposed regulation on two separate occasions, which amended proposals
differed materially from the proposals for which the attorney had had
responsibility. You note that, although the attorney knew of those
developments through informal conversation with other government attorneys
who continued to work on the rulemaking effort, the attorney in question
had no contact with any agency official on the subject.
Further, you inform the Committee that, before the agency adopted its
final rule, the attorney resigned from public employment. More than five
months subsequent to the attorney's resignation, the agency adopted a
final rule substantially in line with the third of its proposals rather
than with the first of its proposals for which the attorney in question
had substantial responsibility.
Finally, you indicate that, prior to accepting employment offered by a
private party in litigation challenging the substance of the agency's
adoption of the final rule as arbitrary, capricious, or inconsistent with
law, the attorney requested an opinion from the agency's ethics official.
The official rendered an opinion indicating that such employment would not
violate federal statutory or regulatory restrictions on post-employment
conduct by former federal employees, but indicating also that the
determination by the official did not address the requirements of legal
canons of ethics which might be of concern in the attorney's situation.
You have requested that the Committee opine as to the propriety of the
attorney's accepting employment by a private party who challenges the
substance of the agency's adoption of the final version of the rule which
you indicate differed materially from the initial proposed rule for which
the attorney had substantial responsibility. You have specifically
indicated that no challenge was being posed as to the procedure by which
the agency adopted the rule.
The Committee reiterates its reference to DR:9-101(B) and Ethical
Consideration 9-3 which provide that, in order to avoid even the
appearance of impropriety, a lawyer shall not accept private employment in
a matter in which he had substantial responsibility while he was a public
employee. Furthermore, the Committee reiterates its opinion that the
permissive nature of the United States Code's post-employment provisions
does not vitiate the provisions of Virginia's Code of Professional
Responsibility as embodied in DR:9-101(B). Finally, the Committee also
reiterates its opinion which construes the term "matter" as broad enough
to encompass rulemaking.
Under the specific additional and clarified facts of your inquiry,
however, the Committee is of the opinion that the attorney's substantial
responsibility in the matter of the proposed regulation ended when the new
rule was ultimately promulgated utilizing a third draft for which the
attorney had had no substantial responsibility and which differed
substantially from the original [first] draft for which the attorney had
had substantial responsibility. Thus, under the facts you have now stated,
it is the opinion of the Committee that it would not be improper for the
attorney to accept employment by private parties challenging the substance
of the rule as arbitrary, capricious or inconsistent with the law,
provided that the language of that rule was proposed and adopted
subsequent to any proposal on which the attorney had worked and for which
he had had substantial responsibility.
However, the Committee cautions the attorney that the Code of
Professional Responsibility's mandate, exhorting the lawyer to preserve a
client's secrets and confidences is not diminished by the passage of time. (
See DR:4-101; LE Op. 1207, LE Op. 672) In addition, the Committee
cautions that a balance must be struck between the mandates of DR:7-101,
directing the attorney to zealously represent the client, and the
requirements of DR:4-101. Thus, if the preservation of the former
client's secrets and confidences negatively impacts upon the zealous
representation of the new [private] client challenging the rule, the
attorney's less-than-zealous representation would be improper.
Reconsideration of Original Opinion, Issued November 16, 1989, Upon
Receipt of Additional Facts September 13, 1990