Washington Lawyer

Legal Ethics: Personal and Substantial Participation in Prior Litigation

From Washington Lawyer, February 2003

(Both the February 2003 and March 2003 “Speaking of Ethics” columns discussed Opinion 315. Opinion 315 addresses two inquiries as to former government employees subsequently working in the private sector. The first and more discussed inquiry involved a former EPA attorney that worked on rule drafting and was peripherally in pertinent litigation. The second inquiry concerns “a former justice department official” working for a school board, which was involved in litigation when the official was with the Department of Justice. Issues of fact determination and Rule 1.11 (Successive Government and Private Employment) are significant in Opinion 315.)

The Committee has received two separate inquiries relating to the same issue under Rule 1.11 of the District of Columbia Rules of Professional Conduct—whether, under specific factual circumstances, a lawyer “participated personally and substantially” while a government employee in the same matter on which the lawyer would now like to participate in private practice. Rule 1.11 provides that a lawyer may not “accept 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.” …

The first inquiry comes from a former attorney in the Environmental Protection Agency’s (“EPA”) Office of General Counsel….

Rule 1.11 does not generally apply to prohibit a former government lawyer from representing a private client in a matter when the lawyer’s only relationship to that matter as a government employee was to work on administrative rulemakings of general applicability. See D.C. Rule 1.11(g) (limiting the definition of “matter” as “involving a specific party or parties”); Id., Comment [3] (“[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”). … Under Rules 1.6(f), for example, he continues to have the obligation to preserve any government confidences or secrets that he obtained; under Rule 1.7(b)(4), the former government lawyer has an obligation to ensure that his professional judgment on behalf of his new, private client is not adversely affected by his prior involvement in the government rulemaking proceedings.

But the inquirer was involved in more than the drafting of the final regulations … Put simply, the question is whether a government lawyer has “participated personally and substantially” in a matter when he or she helped to prepare reports on the status of subsequent agency rulemaking for filing in court and participated in discussions with opposing counsel over the timing of that rulemaking?

Although this is a very close question, we conclude that the answer is “No.” This question requires an inquiry into what the inquirer actually did or knew rather than into the scope of his prior legal representation. …

…(T)he inquirer had to consult to some extent with the lawyers at the Department of Justice who filed the status reports that he drafted, but the substance of those consultations was confined to the progress of the ongoing rulemaking proceedings, not to the course of the litigation. Moreover, like the Assistant United States Attorney in Opinion No. 111, the inquirer was never counsel of record, so “public appearances should not be offended because as a government attorney he did not participate in the matter in a public way.” …

…(T)he inquirer’s role in the prior litigation was clearly not substantive. …Simply participating as a lawyer on behalf of the EPA cannot be sufficient without some evidence that the participation was “more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.” 5 C.F.R. § 2637.201(d)(1). Accepting (as we must) the inquirer’s own description of his involvement in the prior litigation as limited to drafting status reports on the ongoing administrative rulemaking and participating in discussions concerning the timing of that same rulemaking, we conclude that his involvement amounted to no more than “official responsibility . . . or involvement on an administrative or peripheral issue.”

Finally, … (w)hile it is certainly possible that the inquirer’s current employer may have hired him (at least in part) because of his past involvement in the EPA’s general rulemaking proceedings in this area, we find no reason to believe that the inquirer’s limited and peripheral involvement in the litigations … encouraged his subsequent private employment. And encouraging subsequent private employment is, after all, one of the goals that Rule 1.11 is designed to protect, for it could undermine the ability of government to recruit young professionals and competent lawyers to impose harsher restraints than necessary upon future practice.

The second inquiry comes from a former Department of Justice lawyer, who asked whether he could represent a school board in the latest phase of a desegregation case that had been in active litigation in the early 1980s, when the inquirer had been a senior official in the Civil Rights Division. … The inquirer has asked this Committee whether his involvement in this litigation in the early 1980s constituted personal and substantial participation in that matter under Rule 1.11(a).

The government ethics official in the Department of Justice has concluded that the available evidence supports the conclusion that the inquirer participated in the earlier matter “personally and substantially” as a public officer or employee within the meaning of section 207(a)(1) … and … the official recommended that the inquirer not represent the school board before a federal court or agency to ensure that he not violate section 207.

…In all previous inquiries involving the meaning of the phrases “substantial responsibility” and “participated personally and substantially,” the actions, duties, and responsibilities of the former government lawyer while in the government were undisputed and accepted as fact. Here, by contrast, there is no consensus. …

We are not, of course, a fact-finding body, so we are in no position to resolve this factual question. … As we noted in Opinion No. 177, where a former government attorney consulted with others in her office and reviewed their recommended decisions, “these activities involved her in the merits of the case,” thereby making substantial her personal participation. See D.C. Bar Op. No. 177, at 295. …

It is a harder question whether the inquirer’s participation would qualify as “personal” and “substantial” if the extent of his involvement were limited to what he now recalls. …

Because our conclusion with respect to the applicability of Rule 1.11 depends entirely on a factual determination,… (w)e simply have no basis to second-guess the conclusion reached by the government ethics official in the Civil Rights Division … Because the passage of time has probably made it impossible conclusively to determine the relevant facts—at least in the absence of a formal hearing convened for that purpose—we believe that the only prudent course for the inquirer to follow would be to decline other employment in connection with this matter, lest he risk violating Rule 1.11.

Inquiry Nos. 01-10-23, 01-12-26
Adopted: June 2002