January 27, 1977


77-1     MEMORANDUM OPINION FOR A UNITED
         STATES ATTORNEY
         Conflict of Interest—Former United States Attorney


   This letter is to confirm the opinion expressed in a telephone conver­
sation between this Office and your Office regarding the propriety of
the representation of a corporation by a law firm in the case of
---------------. The question arises because Mr. A, who until recently was
a United States Attorney, is now associated with the law firm. The case
was pending in the U.S. Attorney’s Office at the time of Mr. A ’s
departure.
   Mr. A states in his letter to this Office that he has no present
recollection of the case, although he assumes that he reviewed the file
for purposes of determining its nature and assigning it to an Assistant
U.S. Attorney. He also states that he has no recollection of any conver­
sations with the assistant regarding the case. The assistant informed this
Office that he, not Mr. A, signed the complaint and that Mr. A did not
receive any confidential information regarding it.
   On the basis of the facts presented to us, it appears that Mr. A is
personally barred by 18 U.S.C. § 207(b), for one year from the date he
left the U.S. Attorney’s Office, from appearing as agent or attorney in
the case because it was under his “official responsibility” (as that term
is defined in 18 U.S.C. § 202(b)) during his tenure as U.S. Attorney. But
this statutory bar is not imputed to the partners and associates of his
firm. It does not appear, however, that Mr. A ’s participation in the
matter was sufficiently substantial to give rise to the permanent bar in
18 U.S.C. § 207(a).
   Under Disciplinary Rule 9 - 101(B) of the American Bar Association
(ABA) Code of Professional Responsibility, which we assume is appli­
cable here, see Local Rule 4(f), a lawyer may not accept private
employment in a matter in which he had “substantial responsibility” as
a public employee. The disqualification is generally imputed to the
partners and associates of the former Government lawyer, see ABA
Code of Professional Responsibility, D R 5-105(D), although a recent
opinion of the ABA Committee on Professional Ethics concludes that
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 this imputed disqualification may be waived by the Government in
 certain situations if appropriate safeguards are followed. See ABA
 Form al Opinion 342, 62 A.B.A.J. 517. The Department of Justice in
 general supports an interpretation of the Code o f Professional Responsi­
 bility that permits the Government to waive the imputed disqualifica­
 tion in appropriate cases. Safeguards adopted by the Department in
 such cases in the past have included: (1) an undertaking by the firm and
 by the disqualified attorney that such attorney would have no personal
 involvement with the matter and would not discuss it within the firm;
 (2) a reasonable basis for concluding that the undertaking could be
 observed, considering such factors as the competence of the remaining
 members of the firm to handle the matter and the size of the firm; (3) a
 requirement that in general the representation predate the hiring of the
 disqualified lawyer, so as to eliminate any possible suggestion that the
 firm was retained because of his presence; (4) and undertaking that the
disqualified attorney will not share in any fees generated by the repre­
sentation; and (5) disclosure to the court or agency before which the
m atter is pending.
    The D epartm ent’s position is that the questions of Mr. A ’s personal
disqualification under DR 9-101(B) and whether the Government
should waive the imputed disqualification of the entire law firm if Mr.
A is barred under that provision, are essentially for your Office to
determine, in conjunction with the Federal agency involved—or for the
court, on a motion to disqualify. However, we offer the following
opinion on the m atter for your information.
    Because Mr. A apparently intends to disqualify himself from personal
participation in the case in any event, the applicability of D R 9-101(B)
to him is relevant only in deciding either that the Government must
grant a formal waiver to permit other members of Mr. A ’s firm to
represent the corporation in the case or, on the other hand, that there is
no basis under the Code of Professional Responsibility to object to
representation by other members of the firm.
    Formal Opinion 342 of the ABA Committee on Professional Ethics,
to which Mr. A refers in his letter, takes a rather narrow view of what
constitutes the “substantial responsibility” that gives rise to personal
disqualification under DR 9-101(B). Under the ABA interpretation, in
order to be disqualified under D R 9 - 101(B), the former Government
law yer must either have been personally involved in the investigative
or deliberative processes regarding the m atter “to an important, materi­
al degree” o r have had a “heavy responsibility” for the matter, which
suggests that he probably did become so involved. See 62 A.B.A.J. at
520. Under this standard, DR 9-101(B) may well be wholly inapplica­
ble here.
    H owever, the Department has taken the position that the term “sub­
stantial responsibility” should be given a broader reading, requiring that
a G overnm ent attorney at the supervisory level be charged with such
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responsibility for all but the most routine matters under his jurisdiction
even if he did not participate personally in them. In our view, this
construction of D R 9-101(B) is necessary to avoid the appearance of
impropriety in an attorney’s representing a private party in a matter in
which he previously had the power to affect the Government’s posi­
tion. See I. Kaufman, “The Former Government Attorney and the
Canons of Professional Ethics,” 70 Harv. L. Rev. 657,666 (1957). We
believe that the factors to be considered in determining whether from
an ethical standpoint a former Government attorney may personally
represent a party in a matter that was under his official responsibility,
but in which he did not participate personally, include: (1) whether his
relationship to the matter was merely formal; (2) whether the subject
matter was routine and involved no policy determination or was not
otherwise o f particular significance; and (3) whether there were inter­
vening levels of responsibility or other indications that the matter was
not of a type with which the attorney would or should ordinarily have
had personal involvement. See, generally, Kesselhaut v. United States,
(March 29, 1976), slip opinion at 24-29 rev'd on other grounds (May 18,
 1977); Opinion 889 of the Committee on Professional and Judicial
Ethics o f the Association of the Bar of the City of New York. For
example, if Mr. A’s apparent assignment of the case to his assistant in
effect constituted a determination by him that the complaint should be
filed as requested by the Federal agency, this would suggest that Mr. A
did have “substantial responsibility” in the case. Indeed, if this were the
fact, he would in our view have participated personally and substantial­
ly in the case and be barred under 18 U.S.C. § 207(a).
   As pointed out above, whether or not Mr. A is personally barred
under the Department’s construction of D R 9-101(B) is a factual deter­
mination for your Office to make in light of the foregoing. If he is, he
must forgo any share of the fees in the case as a condition of his firm’s
handling the case. O f course, such a waiver decision is ultimately for
your Office to make as well.
   If Mr. A ’s personal disqualification instead derives from 18 U.S.C.
§ 207(b) alone, the only restriction on his receiving fees is the prohibi­
tion in 18 U.S.C. § 203 against sharing in compensation received by the
firm for services rendered by its members before a Government agency
(but not a court) in this or other cases during the time that he was U.S.
Attorney; there would be no prohibition against Mr. A ’s sharing in fees
for services still to be performed in the case.
                                                L eon U lm an
                                  Acting Assistant Attorney General
                                                 Office o f Legal Counsel




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