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