Ethics Opinion 297
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.
- Rule 1.11 (Successive Government and Private Employment)
- Rule 1.6 (Confidentiality of Information)
- Rule 1.7 (Conflict of Interest)
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.
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:
Id. The statute also contains a definition of “particular matter”:(a)(1) Any person who . . . , after the termination of his or her service or employment with the United States . . . , knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States . . . on behalf of any other person (except the United States . . .) in connection with a particular matter—(A) in which the United States . . . is a party or has a direct and substantial interest,shall be punished as provided in section 216 of this title.
(B) in which the person participated personally and substantially as such officer or employee, and
(C) which involved a specific party or specific parties at the time of such participation,
(2) Any person subject to the restrictions contained in paragraph (1) who, within 2 years after the termination of his or her service or employment with the United States . . . knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States . . . on behalf of any other person (except the United States . . .), in connection with a particular matter—(A) in which the United States . . . is a party or has a direct and substantial interest,shall be punished as provided in section 216 of this title.
(B) which such person knows or reasonably should know was actually pending under his or her official responsibility as such officer or employee within a period of 1 year before the termination of his or her service or employment with the United States . . . and
(C) which involved a specific party or specific parties at the time it was so pending,
(i) For purposes of this section18 U.S.C. § 207(i)(3). Subsection (a)(1) prohibits a former Government employee covered by the statute from representing another entity before the Government on a case, contract, or other similar matter, if the employee participated “personally and substantially” on the matter. Also, a prohibited matter is one that involves specific parties and is the same matter in which the former employee now attempts to represent another party before the United States. Subsection (a)(2) prohibits a former Government employee from representing another entity before the Government on a “particular matter” which was actually pending under the former employee’s official responsibility during the last year of service. Rulemaking is specifically included within the definition of “particular matter” under subsection (i).2 As the inquirer provided advice and comment regarding the proposed regulations, we assume for purposes of this Opinion that the inquirer’s involvement was “personal and substantial.”3
* * * *
(3) the term “particular matter” includes any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding.
Under most circumstances the statutory consideration would end with § 207. There is, however, an exception to the prohibitions set forth in § 207. The Indian Self-Determination Act, Title I of Pub. L. No. 93-638, 88 Stat. 2203, provides in pertinent part:
Anything in sections 205 and 207 of Title 18 to the contrary notwithstanding, . . . former officers and employees of the United States employed by Indian tribes may act as agents or attorneys for or appear on behalf of such tribes in connection [with] any matter pending before any department, agency, court, or commission including any matter in which the United States is a party or has a direct and substantial interest: Provided, That each such officer or employee or former officer or employee must advise in writing the head of the department, agency, court, or commission with which he is dealing or appearing on behalf of the tribe of any personal and substantial involvement he may have had as an officer or employee of the United States in connection with the matter involved.
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  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. . 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).
Although a precise definition of “matter” as used in the Disciplinary Rule is difficult to formulate, the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. Perhaps the scope of the term “matter” may be indicated by examples. The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101(B) from subsequent private employment involving the same regulations, procedures, or points of law; the same “matter” is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties.
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):
[A]n attorney who finds himself in this position must either seek the agency’s consent to reveal the confidences and secrets he previously learned or determine that he can zealously represent his current employer while at the same time protecting the agency’s confidences and secrets. The latter course may well prove impossible.D.C. Bar Op. 187, at 6.
We reach a similar conclusion under Rule 1.11. A particular matter may be a discrete and isolatable transaction or set of transactions. See Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 42 (D.C. 1984) (en banc). While a matter may be a single particular lawsuit, it also may encompass an “administrative proceeding” involving a specific party or parties according to the definition provided in Rule 1.11(g). Indeed, representation involving a rulemaking is specifically contemplated in the Rules as one type of representation comprising a “matter,” as long as it involves a specific party or parties, as required by Rule 1.11(g). The issue, then, is whether the negotiated rulemaking here is particular to a specific party or parties.
To be sure, the members of the rulemaking committee are identifiable parties. Presumably, the committee members participate because they possess an interest in whatever regulations are ultimately promulgated. We do not think, however, that the participation of interested parties makes the rulemaking proceeding particular to them. Whatever regulations that are issued may, but not necessarily will, apply to committee members; they will also apply generally to any persons or entities subject to their terms. Put another way, the rulemaking here is not addressed to named parties but applies broadly to a generic class of potentially affected persons. The overall process includes a notice and comment component addressed to the general public and is designed to generate a rule of general applicability. This process, although involving a rulemaking committee comprised of specific parties, is far more rulemaking than adjudication. These characteristics disqualify the negotiated rulemaking from “matter” status as that term is used in Rule 1.11. As such, successive representation is not per se prohibited by Rule 1.11(a) and (g) where the initial representation is in connection with a rulemaking of general applicability.9
Our analysis does not conclude with that determination, however. There remains the issue of confidentiality. The point of departure for that analysis is Rule 1.6, which states in part:
(a) [A] lawyer shall not knowingly . . . (1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; (3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.Comment  to Rule 1.6 further states that the rule of attorney-client confidentiality applies not merely to matters communicated in confidence by the client, but also to all information gained in the course of the professional relationship that the client requests be held inviolate. “This ethical precept . . . exists without regard to the nature or source of the information or the fact that others share the knowledge.” Id. Cmt. .
(b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
Consistent with our prior opinions decided under the Code of Professional Responsibility, we conclude that successive representation is allowable in the unique circumstances here if the attorney can honor the strictures of the confidentiality obligations and the conflict rules. While the circumstances here do not, as explained above, involve the same matter or substantially related matters under Rule 1.11, Rule 1.6 still applies but does not necessarily bar successive representation. That is, where counsel received information in representing the government that is subject to Rule 1.6, the requirement that the attorney hold such information inviolate does not, without more, preclude successive representation in a negotiated rulemaking. That conclusion does not end the analysis, however.
We believe that the inquirer must honor his confidentiality obligations to the government not only as a general matter, but must do so with enhanced vigilance in undertaking any proposed representation relating to the very same rulemaking in which he counseled the government. Serious consideration should be given by the attorney to seeking consent from his former client, the Interior Department.10 If consent is obtained, then the limitations of Rule 1.6 are not implicated. See Rule 1.6(d)(1). Absent consent, the confidences and secrets that the inquirer received in his capacity as a government attorney are protected by Rule 1.6 from disclosure and cannot be used by the inquirer or revealed to the prospective client. This restriction may well preclude the inquirer from undertaking the proposed representation. Concomitantly, observing this limitation could conceivably violate the inquirer’s duties of zeal and loyalty to the prospective client. Toward that end, in determining whether to accept the proposed representation, the attorney must adhere to the dictates of Rule 1.7. Specifically, 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 client, the Department of the Interior. If that examination yields an affirmative conclusion, the attorney must then seek the prospective client’s consent to the representation “after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.” Rule 1.7(c). As with the proposed representation that we examined in Opinion 187, these considerations may prevent undertaking the representation contemplated here.
1. A negotiated rulemaking involves rulemaking through the use of a negotiated rulemaking committee, which is essentially an advisory committee established by an agency to consider and discuss issues for the purpose of reaching a consensus in the development of the proposed rule. This may involve the agency’s submission of draft regulations to groups that are likely to be significantly affected by the regulations, in advance of a notice and comment rulemaking proceeding, and to negotiate with them over the form and substance of the regulations. See, e.g., USA Group Loan Servs., Inc. v. Riley, 82 F.3d 708, 715 (7th Cir. 1996) (“negotiated rulemaking . . . does not envisage that the negotiations will end in a binding contract. The [Negotiated Rulemaking] Act simply creates a consultative process in advance of the more formal arms’ length procedure of notice and comment rulemaking.”).
2. The Office of Government Ethics (”OGE”) issued its post-employment conflict of interest regulations, found at 5 C.F.R. § 2637, in 1980. The continued vitality of these regulations is unclear, however, in light of changes to § 207. In 1989, Congress amended 18 U.S.C. § 207 and added the definition of “particular matter,” which specifically includes rulemaking. OGE, however, has yet to promulgate new or revised regulations implementing 18 U.S.C. § 207(a). The 1980 regulations provide that generally, rulemaking is not a “particular matter.” See 5 C.F.R. § 2637.201(c)(1) (“[A] matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identifiable parties. Rulemaking, legislation, the formulation of general policy, standards or objectives, or other action of general application is not such a matter. Therefore, a former Government employee may represent another person in connection with a particular matter involving a specific party even if rules or policies which he or she had a role in establishing are involved in the proceeding.”).
3. The regulations implementing section 207(a) note that “personal and substantial participation” is:
exercised “through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise.” To participate “personally” means directly. . . . Substantially,” means that the employee’s involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance.
Id. § 2637.201(d)(1) (1994).
4. The legislative history of the Indian Self-Determination Act reveals the genesis of this exemption to stem from concerns regarding the rigidity of various laws that applied to tribal contracts with the federal government. Congress determined that more flexibility than the federal statutes provided was needed “to give substance and credibility to the concept of Indian self-determination.” See H.R. Rep. No. 93-1600, at 20, reprinted in U.S.C.C.A.N. 7775, 7782.
5. D.C. Rules of Professional Conduct Rule 1.11(a). Comment  to Rule 1.11 emphasizes its rigidity, explaining that Rule 1.11(a) “flatly forbids a lawyer to accept other employment in a matter in which the lawyer participated personally and substantially as a public officer or employee. . . . There is no provision for waiver of the individual lawyer’s disqualification.” Id. Cmt. .
6. Id. See Laker Airways, Ltd. v. Pan Am World Airways, 103 F.R.D. 22 (D.D.C. 1984). That case involved the interpretation of the predecessor to Rule 1.11, DR 9-101(B) of the Code. In Laker, the court stated that “rulemaking and policy-making activities do not constitute a ’matter’ within the meaning of the Disciplinary Rule for the purposes of disqualifying counsel from a subsequent private lawsuit, and they do not become so unless the activity is narrow in scope and is confined to specified issues and identifiable parties such that it may properly be characterized as ‘quasi-judicial’ in nature.” 103 F.R.D. at 34 (footnote omitted). The court’s holding was qualified by its admonition: “To be sure, the Disciplinary Rule would bar counsel from representing a private party in a regulatory or rule-making proceeding when he previously participated as a government attorney in the same proceeding. Such a practice of ‘switching sides’ is the primary target of the Rule.” Id. at 34 n. 40.
7.For a discussion of the many forms that “rules” can take, see Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 17.3, at 108 (3d ed. 1994); Peter L. Strauss, Comment, The Rulemaking Continuum, 41 Duke L.J. 1463 (1992).
8. DR 9-101(B) provided at the time: “A lawyer shall not accept private employment in a matter in which he has substantial responsibility while he was a public employee.” The term “matter” was not then defined in the Code.
9. Our judgment here is also informed by the Congressional policy reflected in 25 U.S.C. § 450 (1994), which manifestly permits a former government attorney to switch sides to undertake the representation of an Indian tribe.
10. Rule 1.6(j) provides that “[t]he client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.