July 12, 1978



78-38       MEMORANDUM OPINION FOR DEPUTY
            ASSISTANT ATTORNEY GENERAL, ANTITRUST
            DIVISION

            Standards of Conduct (28 CFR Part 45)— Service
            of Employee in State Chapter of a National
            Organization


     This is in response to your request for our opinion regarding the propriety of
 Mr. A, an attorney in your Division, engaging in certain activities as a member
of a national organization (“ the organization” ).
     The principal issue is whether A may serve as chairman of the Legal Affairs
 Committee of his State’s chapter of the organization. The Legal Affairs
Committee has the responsibility for assisting in litigation undertaken by the
 organization, recommending to the leadership of the State chapter areas of
 potential legal involvement, and representing the State chapter as a party or
amicus curiae in litigation. In addition, the committee would advise the
 leadership of the State chapter regarding compliance with laws that the
organization monitors, draft legislation to be supported by the organization at
the State level, and analyze legislation prepared by others. As chairman, A
 would direct the activities of the committee, handling some work himself and
delegating other work to members of the committee.
     Rendering legal advice and analysis and recommending and conducting
 litigation are traditional activities of a lawyer. It is clear that A’s activities as
chairman or even as an active member of the Legal Affairs Committee would
constitute the private practice of his profession and therefore be prohibited by
28 CFR 45.735-9(a).‘ The Associate Attorney General may make specific
exceptions to this prohibition in “ unusual circumstances,” upon a written
 application from the employee, directed through his superior. 28 CFR
45.735-9(c). Typically, this exempting power has been exercised with respect
to individual cases or matters where a need arises, e.g., to permit a lawyer
joining the Department to complete work on a case that he was handling in
private practice. Whether an exemption is appropriate in the present situation is

   'T h e absence o f com pensation is im m aterial on this point.

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a matter for the Associate Attorney General. Were the Associate Attorney
General to grant an exemption, A would nevertheless be prohibited by 18
U.S.C. § 205 from acting as “ agent or attorney” for the organization in cases
or other matters in which the United States is a party or has a direct and
substantial interest.
   A also inquires about other activities of the organization unrelated to the
work of the Legal Affairs Committee that principally derive from his role as
chairman of the organization’s National Issues Committee for a congressional
district in his State. These activities include attendance at meetings, educating
present and prospective members, appearing on radio programs, and lobbying
elected officials, usually Members of Congress.
   The Department’s regulations do not prohibit membership in an outside
organization or active participation in its affairs. Nor do the regulations
ordinarily prohibit an employee from petitioning elected officials at the Federal
or State level on his own behalf or on behalf of an outside organization. See
also 5 U.S.C. § 7102. A should not, however, perform any of these activities
on official time or allow his position as a Department employee to be used in
any way in connection with his activities. In addition, if the occasion arises in
which the organization becomes involved in an issue of particular interest to the
Antitrust Division, consideration should be given to whether A’s activities
would create a real or apparent conflict of interest. 28 CFR 45.735-9(d).

                                                L eon U   lm an

                                      Deputy Assistant Attorney General
                                                    Office o f Legal Counsel




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