Ethics Opinion 297: Representation of Client in Negotiated Rulemaking Proceeding for Which Lawyer Was Responsible While in Government

Representation of Client in Negotiated Rulemaking Proceeding for Which Lawyer Was Responsible While in Government

Absent a statutory bar, a former government attorney is not automatically prohibited from representing a private client in a negotiated rulemaking in which he participated while employed by the government, provided that he uses or divulges no confidences or secrets of his former agency. In determining whether to accept the proposed representation, the attorney must assess whether his professional judgment on behalf of the prospective client will be or reasonably may be adversely affected by his responsibilities to his former agency and, if so, must seek the prospective client’s consent to the representation.

Applicable Rules

Inquiry
The Committee has received an inquiry from an attorney regarding his proposed representation of an Indian tribe in a negotiated rulemaking in which he was previously involved on behalf of the U.S. Department of the Interior as an attorney. In his capacity as a government attorney, the inquirer’s responsibilities included providing legal advice on implementing a federal statute. Pursuant to that statute, a formal negotiated rulemaking committee was established to negotiate and promulgate a general rule of applicability for implementing the statute.1 This negotiated rulemaking committee was established pursuant to the Negotiated Rulemaking Act, 5 U.S.C. §§ 561 et seq. (1994). The inquirer provided legal advice and assisted in the negotiations regarding language that preceded the proposed regulations that were published for public comment. The inquirer then prepared written comments and rendered advice on the proposed regulations. The negotiated rulemaking committee is now reviewing the public comment and conducting ongoing negotiations with interested parties apropos of developing its recommendations on final regulations. Various Indian tribes have participated in this rulemaking.
The inquirer, now in private practice, has asked whether he can now represent an Indian tribe in the negotiated rulemaking regarding the proposed regulations. The inquirer has represented that some of the positions that he advocated as a government employee may be adverse to the positions taken by either the prospective client tribe or the caucus of negotiating tribes as a whole.

Discussion
Restrictions on Post-Government Employment

As a threshold matter, we address the federal conflict of interest statute that, at first blush, would appear to apply to the proposed representation. We do so only to explain that a novel exception, set forth in another statute, limits its application.
The general restrictions on post-employment conduct for former government employees are set forth in 18 U.S.C. § 207 (1994 & Supp. IV 1998). The inquirer informs the committee that he is subject to the prohibitions found at 18 U.S.C. § 207(a), which provides in pertinent part:

25 U.S.C. § 450i(j) (1994).4
     Under this statute, a former government employee employed or retained by an Indian tribe is not subject to the restrictions set forth in 18 U.S.C. § 207 while representing the tribe, so long as the former employee provides written notice to the head of the department, agency, court or commission before which the representation is made of any personal and substantial involvement the former employee may have had in connection with the underlying matter. The inquirer has informed the Committee that he has submitted this statutory notification.
     With this statutory framework in mind, we now consider whether the Rules of Professional Conduct permit the proposed representation.
     Rule 1.11 of the District of Columbia Rules of Professional Conduct expressly addresses successive government and private employment. Rule 1.11(a) prohibits an attorney from accepting “other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.”5 The Court of Appeals has explained that “[t]he inquiry is a practical one asking whether the two matters substantially overlap.” In re Sofaer, 728 A.2d 625, 628 (D.C. 1999) (footnote omitted). That determination is a function of whether the “matters” are the same or substantially related.
     The Rules, in their Terminology section, broadly define the term “matter” as “any litigation, administrative proceeding, lobbying activity, application, claim, investigation, arrest, charge or accusation, the drafting of a contract, a negotiation, estate or family relations practice issue, or any other representation, except as expressly limited in a particular Rule.” Rule 1.11 is such a “particular Rule,” containing as it does a limiting provision. The limitation on the definition of matter for purposes of Rule 1.11 is found in Rule 1.11(g), which provides that Rule 1.11 “applies to any matter involving a specific party or parties.” Comment [3] reinforces this concept, providing in pertinent part that Rule 1.11(g) defines matter “so as to encompass only matters that are particular to a specific party or parties.” Id. Cmt. [3]. The Comment then sharpens the focus of this boundary in stating that “[t]he making of rules of general applicability and the establishment of general policy will ordinarily not be a ‘matter’ within the meaning of Rule 1.11.”6
     The rationale for this position appears to be that a rule is considered as applying broadly to a generic class of persons. See Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 6.1, at 226 (3d ed. 1994). While a rulemaking may be addressed to named persons, agencies rarely use rulemaking to address named persons. Id. § 6.1. Generally, all potentially affected members of the public are given an opportunity to participate in a rulemaking proceeding. This enables interested persons to participate in the process of formulating the rules that affect them and to which they must conform.
     As such, a rulemaking of general application is not “particular to a specific party or parties.” The view that rulemaking is not particular to specific parties is supported by the Administrative Procedures Act (“APA”) and its distinction between rulemaking and adjudication. The APA, in § 551(5), defines “‘rule making’” as “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5) (1994). A “rule” is defined in the APA as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes [various substantive agency functions] . . . or practices bearing on any of the foregoing.” 5 U.S.C. § 551(4) (1994).7
     In contrast to a rulemaking, agencies conduct adjudication proceedings. APA § 551(7) defines “‘adjudication’” as “agency process for the formulation of an order.” 5 U.S.C. § 551(7) (1994). Section 551(6) defines “‘order’” as “the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking but including licensing. . . .” 5 U.S.C. § 551(6) (1994). An order issued in an “adjudication” is regarded as being directed to the particular parties to the adjudication. Davis, supra, § 6.1, at 226.
     While this committee has not previously addressed the application of Rule 1.11(a) to a rulemaking proceeding, several prior opinions did focus on the issue under the former ethics rules. Opinion 106 addressed the applicability of the District of Columbia Code of Professional Responsibility to a former government attorney’s representation of a private client in challenging the validity of a rule for which the attorney had substantial responsibility in its promulgation. The Opinion concluded that DR 9-101(B) would not prohibit the attorney’s representation in subsequent employment.8
     Consulting a frequently quoted ABA Opinion and a prior Committee opinion, the Committee concluded that rulemaking was excluded from the scope of “matter” encompassed by DR 9-101(B).

D.C. Bar Op. 106, at 6 (Sept. 22, 1981) quoting ABA Formal Op. 342. (alteration in original)
At the same time, Opinion 106 cautioned the attorney that he “would run a serious risk” of violating DR 5-105 and DR 4-101 by undertaking the representation. The Opinion observed that a former government attorney who personally and substantially participated in drafting agency rules was likely to have gained the client confidences and secrets that were protected from disclosure by DR 4-101(B). Moreover, an attorney who drafted agency rules that are challenged by a subsequent employer would have to carefully assess whether his previous involvement with the rules would affect the exercise of his professional judgment on behalf of his employer. DR 5-101(A) provided that a lawyer must decline employment if the exercise of his independent professional judgment his representation of a client “will be or is likely to be adversely affected” by his personal interest.
This Committee visited this issue again in D.C. Bar Op. 187 (1987). There, we concluded that a former government employee was not automatically prohibited from representing a private client in challenging an agency’s regulations for which he had been responsible while employed by the government, provided that he divulge no confidences or secrets of his former agency. The definition of “matter” under the Code in effect at that time was not as broad as the current definition in the Rules and did not include administrative proceedings. Again, however, we cautioned that the attorney would need to assess whether his previous responsibility for the rule would affect the exercise of his independent professional judgment consistent with DR 5-101(A):