IN	THE	UNITED	STATES	DISTRICT	COURT

FOR	THE	DISTRICT	OF	COLUMBIA

________________________________________________

)

CAMPAIGN	LEGAL	CENTER )

1411	K	Street,	NW,	Suite	1400 )

Washington,	DC	20005, )

)

Plaintiff, )

)

v. ) Case	No.	1:18-cv-00053

)

FEDERAL	ELECTION	COMMISSION )

999	E	Street,	NW )

Washington,	DC	20463, )

)

Defendant. )

________________________________________________)

MEMORANDUM	IN	SUPPORT	OF	GEO	CORRECTIONS HOLDINGS,	INC.	MOTION	TO	

DISQUALIFY	ADAV	NOTI	AS	COUNSEL	FOR	PLAINTIFF	IN	THIS	ACTION

INTRODUCTION

Plaintiff	Campaign	Legal	Center	filed	this	action	against	Defendant	Federal	Election	

Commission	to	seek	this	Court’s	assistance	in	 forcing	the	Defendant	to	take	action	against	

GEO	Corrections Holdings,	Inc.	(“GEO”) more	quickly.		Plaintiff	seeks	a	speedier	resolution	to	

an	 administrative	 complaint	 it	 filed	 on	 or	 about	 November	 1,	 2016.	 	 At	 the	 time	 this

administrative	 complaint	 was	 filed,	 Plaintiff’s	 lead	 counsel,	 Adav	 Noti,	 was	 serving	 as	

Associate	General Counsel in	Defendant’s	Office	of	General	Counsel.		Mr.	Noti	had	access	to

confidential information	about	Plaintiff’s	administrative	complaint	while	he	was	employed	

by	 the	Defendant.	 	 The	 present	lawsuit	 filed	 by	 Plaintiff	 alleges	a	 violation	 of	law	 by	 the	

Defendant	 which the	 Plaintiff alleges accrued	 while	 Mr.	 Noti	 was	 still	 employed	 by	

Defendant.		GEO	seeks the	disqualification	of	Mr.	Noti	as	counsel	to	Plaintiff	in	this	matter	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 1 of 16
due	 his	 prior	 employment	 with	 Defendant,	 which	 allowed	 him	 access	 to	 confidential	

materials	pertaining	to	the	underlying	administrative	complaint.

STATEMENT	OF	FACTS

On	 or	about	November	 1,	 2016,	 the	 Plaintiff	in	 this	matter	 filed	an	administrative	

complaint	with	the	Defendant in	 this	matter,	 the	Federal	Election	Commission.		Plaintiff’s	

administrative	complaint	alleged	that	GEO	Corrections	Holdings,	Inc. violated	provisions	of	

the	 Federal	 Election	 Campaign	 Act	 when	 it	 contributed	 to	 Rebuilding	 America	 Now,	 an	

independent	expenditure-only	committee.		This	complaint	triggered	the	FEC’s	enforcement	

process,	and	caused	an	enforcement matter	designated	Matter	Under	Review	(MUR)	7180	to	

be	opened	at	the	FEC.

From	2007	through	late	April	or	early	May	2017,	counsel	for	Plaintiff	in	this	matter,	

Adav	Noti,	was	an	employee	of	the	Federal	Election	Commission	(FEC),	where	he	served	as	

an	attorney	in	the	agency’s	Office	of	General	Counsel.		From	2013-2017,	Mr.	Noti	served	as	

Associate	General	 Counsel	 for	 Policy,	which	is	a	high-ranking,	 senior	 staff	 position	in	 the	

Office	 of	 General	 Counsel.	 	 Before	 that,	 he	 served	 as	 Acting	 Assistant	 General	 Counsel,	

another	high-ranking	position.		The	FEC	announced	Mr.	Noti’s	departure	on	April	21,	2017.1

Upon	leaving	employment	with	the	FEC,	Mr.	Noti	joined	Defendant	Campaign	Legal	

Center.	 	 His	 title	 with	 the	 Campaign	 Legal	 Center	 is	 Senior	 Director,	 Trial	 Litigation	 &	

Strategy.		We	believe	Mr.	Noti	began	his	employment	with	the	Campaign	Legal	Center	in	late	

April	or	early	May	2017.		

																																																							 1 See Federal	Election	Commission,	Weekly	Digest	(Week	of	April	17	– April	21,	2017),	April	

21,	2017,	https://www.fec.gov/updates/week-april-17-april-21-2017/.		

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 2 of 16
On	June	15,	2017,	the	Campaign	Legal	Center	filed	a	lawsuit	against	the	Department	

of	 Justice	alleging Freedom	of	 Information	Act	violations.		According	 to	a	Campaign	Legal	

Center	press	release,	the	“Campaign	Legal	Center	(CLC) filed	a	lawsuit demanding	that	the	

Department	of	 Justice	 (DOJ)	 turn	over	documents	relating	 to	 the	private	prison	company	

GEO	Group	and	a super	PAC	 that	spent	hundreds	of	 thousands	of	dollars	 to	influence	 the	

2016	presidential	election.”2		The	Campaign	Legal	Center’s	lawsuit	against	the	Department	

of	Justice concerns	the	exact	same	underlying	facts	at	issue	in	the	administrative	complaint	

filed	with	the	FEC.		The	Campaign	Legal	Center’s	lawsuit	against	the	Department	of	Justice	is	

signed	by	three	attorneys,	one	of	whom	is	Adav	Noti.

In	 a	 press	 release	 announcing	 the	 Campaign	 Legal	 Center’s	 lawsuit	 against	 the	

Department	of	Justice,	Mr.	Noti	is	quoted	discussing	the	pending	FEC	matter:

“GEO	 made	 illegal	 contributions	 to	 influence	 the	 election,	 and	 now DOJ	 is	

refusing	 to	 release	 the	 documents	 that	 might	 show	 whether	 the	

Administration	rewarded	GEO	for	its	illegal	spending,”	said Adav Noti,	senior	

director,	trial	litigation	and	strategy	at	CLC,	a	former	associate	general	counsel	

for	 policy	 at	 the	 FEC.	 “While	 we	 continue	 to	 wait	 for	 the	 FEC	 to	 hold	 GEO	

accountable,	GEO	seems	 to	be	reaping	benefits	 from	its	illegal	contribution,	

receiving	a	$110	million	prison	contract from	the	very	same	administration	

that	is	unlawfully	withholding	these	documents.”3

Mr.	 Noti	 also	 spoke	 to	 reporters	 about	 the	 filing,	 and	 discussed	 the	 related	

administrative	complaint	that	was	still	pending	before	the	Federal	Election	Commission.		The	

day	after	the	Campaign	Legal	Center	lawsuit	against	the	DOJ	was	announced,	Mr.	Noti spoke	

to	 a	 reporter	 with	 the	 Courthouse	 News	 Service and	 again	 publicly	 commented	 on	 the	

																																																							 2 Campaign	Legal	Center	Press	Release,	CLC	Lawsuit	Demands	DOJ	Provide	Documents	

Relating	to	Private	Prison	Company	GEO	and	Trump	Super	PAC,	June	15,	2017,	

http://www.campaignlegalcenter.org/news/press-releases/clc-lawsuit-demands-dojprovide-documents-relating-private-prison-company-geo.		 3 Id.		

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 3 of 16
confidential	enforcement	matter	pending	before	 the	FEC.		Specifically,	Mr.	Noti said: “The	

reason	 that	 federal	 contractors	 have	 been	 prohibited	 for	 75	 years	 from	 making	 political	

contributions	is	for	exactly	this	reason.”		Mr.	Noti	was	referring	to	the	facts	underlying	the	

FEC	complaint	that	was	filed	while	he	was	still	an FEC	attorney,	and	which	remained an	open	

matter.	 	 The	 Courthouse	 News	 Service reported	 on	 June	 16,	 2017:	“The	 Campaign	 Legal	

Center’s	 Noti emphasized	 that	 the	 election	 commission’s	 investigation	 of	 its	 November	

request	is	ongoing	— and	that	his	group	could	technically	sue	over	that	delay.”4		

On	January	10,	2018,	the	Campaign	Legal	Center	filed	the	present	lawsuit	against	the	

Federal	Election	Commission.		This	lawsuit	was	 filed	and	signed	by	Mr.	Noti	as	counsel	to	

plaintiff	Campaign	Legal	Center.		In	this	lawsuit,	the	Campaign	Legal	Center	alleges	that	the	

FEC	is	in	 violation	 of	52	U.S.C.	 §	 30109(a)(8)(A)	 for	 failure	 to	act	 on	 the	 Campaign	Legal	

Center’s	administrative	complaint	(MUR	7180)	within	120	days.		Under	the	Campaign	Legal	

Center’s	theory	of	the	case,	the	FEC	was	legally	obligated	to	act	on	the	complaint	(MUR	7180)	

within	120	days	after	it	was	filed.		The	Campaign	Legal	Center	filed	their	complaint	against	

GEO	 Corrections	 Holdings,	 Inc.	 on	 November	 1,	 2016,	 and	 their	 alleged	 cause	 of	 action	

against	the	FEC	accrued	120	days	later,	on	March	1,	2017.		As	noted	above,	Mr.	Noti	served	

as	an	Associate	General	Counsel	in	the	FEC’s	Office	of	General	Counsel	until	late	April	or	early	

May	2017,	meaning	Mr.	Noti	has	now	filed	a	lawsuit	that	alleges	a	violation	of	the	law	by	the	

FEC	which	occurred	while	Mr.	Noti	was	an	employee	of	the	FEC	and	in	a	position	to	know	or	

have	access	to	confidential	information	pertaining	to	the	subject	matter	at	hand.

																																																							 4 Britain	Eakin,	Private-Prison	Turnaround	Triggers	DOJ	Records	Hunt,	Courthouse	News

Service,	June	16,	2017,	https://www.courthousenews.com/private-prison-turnaroundtriggers-doj-records-hunt/.		

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 4 of 16
The	Campaign	Legal	Center’s	complaint	appears	to	have	been replaced	with	a	new	

filing	that	that	does not	include	Mr.	Noti’s	name.		The	original	docket	stamped	filing	remains	

available,	including	on	the	Plaintiff’s	website,	along	with	Mr.	Noti’s	public	statements	about	

the	matter.		Whatever	the	reason	for	this	replacement, Mr.	Noti	filed	a	notice	of	appearance	

in	 this	matter	on	 January	24,	2018.		There	can	be	no	doubt	 that	Mr.	Noti	was	involved	in

preparing	and	filing	this	lawsuit.		The	Courthouse	News	Service,	to	whom	Mr.	Noti	previously	

spoke	in	2017 about	the	underlying	matter,	reported	on	January	10,	2018,	that	the	Plaintiff’s	

complaint	was	“written	by	in-house	attorneys	Adav	Noti	and	Mark	Gaber.”5

ARGUMENT

I. Mr.	Noti’s	Representation	of	Plaintiff	Violates	Applicable	Ethics	Rules,	

Agency	Confidentiality	Requirements,	and	Other	Statutory	Requirements

A. District	of	Columbia	Rules	of	Professional	Conduct

Mr.	Noti’s participation	in	the	Campaign	Legal	Center’s	lawsuit	against	the	Federal	

Election	 Commission,	 in	 light	 of	 his	 prior	 employment	 at	 the	 FEC,	 is	 a	 violation	 of	

professional	ethical	requirements.		

“The	District	of	Columbia	Rules	of	Professional	Conduct	govern	the	practice	of	law	—

and	the	qualification	of	counsel	—in	this	District.”		Ambush	v.	Engelberg,	2017	U.S.	Dist.	LEXIS	

167247,	*6	(D.D.C.	Oct.	10,	2017).		The	District	of	Columbia’s	Rules	of	Professional	Conduct	

provide	 that	 “[a]	lawyer	 shall	 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	

																																																							 5 Britain	Eakin,	Watchdog	Demands	Response	to	Complaint	Over	Trump	PAC	Donation,	

Courthouse	News	Service,	Jan.	10,	2018,	https://www.courthousenews.com/watchdogdemands-response-to-complaint-over-trump-pac-donation/.		

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 5 of 16
personally	 and	 substantially	 as	 a	 public	 officer	 or	 employee.”	 	 D.C.	 Rules	 of	 Professional

Conduct,	 Rule	 1.11.	 	 The	 comments	 to	 this	 rule	 explain	 that	 “Paragraph	 (a)’s	 absolute	

disqualification	of	a	lawyer	 from	matters	in	which	the	lawyer	participated	personally	and	

substantially	 carries	 forward	 a	 policy	 of	 avoiding	 both	 actual	 impropriety	 and	 the	

appearance	of	impropriety that	is	expressed	in	the	 federal	conflict-of-interest	statutes	and	

was	expressed	in	the	former	Code	of	Professional	Responsibility.”		D.C.	Rules	of	Professional	

Conduct,	Rule	1.11,	Comment	5	(emphasis	added).		The	Board	on	Professional	Responsibility	

has	previously	identified	several	purposes	served	by	Rule	1.11,	explaining:

It	 provides	 assurance	 to	 the	 public	 that	 government	 lawyers	 will	 not	 skew	

their	 conduct	 of	 official	 business	 to	 gain	 advantage	 in	 subsequent	 private	

employment.	Similarly,	it	 prevents	individuals	 from	seeking	 to	 profit	at	 the	

public’s	expense	by	using	their	government	positions	to	further	their	private	

interests	later.	The	rule	also	ensures	that	the	government	as	a	 former	client	

will	 enjoy	 the	 same	 loyalty	 and	 confidentiality	 to	 which	 private	 clients	 are	

entitled. See	 generally	 Brown	 v.	 District	 of	 Columbia	 Board	 of	 Zoning	

Adjustment,	 486	 A.2d	 37,	 44-47	 (D.C.	 1984)	 (en	 banc)	 (discussing	 DR	 9-

101(B));	 D.C.	 Bar	 Op.	 No.	 16	 (1976)	 (same);	 ABA	 Formal	 Opinion	 No. 409	

(1997)	(discussing	Model	Rule	1.11).6

The	 District	 of	 Columbia	 Court	 of	 Appeals	 discussed	 the	 origins	 of	 the	

“substantially	 related”	 test	 found	 in	 Rule	 1.11	 in	 Brown v.	 District	 of	 Columbia	

Board	of	Zoning	Adjustment,	486	A.2d	37	(D.C.	App.	1984) (en	banc).		The	court	

explained:

The	 first	 significant	 case	 to	 consider	 a	 revolving	 door	 disqualification	 was	

United	 States	 v.	 Standard	 Oil	 Company,	 136	 F.	 Supp.	 345	 (S.D.N.Y.	 1955)	

(Kaufman,	 J.).	 The	 court	 not	 only	 invoked	 old	 Canons	 6	 and	 37	 (avoiding	

conflicts	of	interest	and	 preserving	 client	 confidences)	 but	also	applied	 the	

revolving	door	rule	of	old	Canon	36:	“A	lawyer,	having	once	held	public	office	

																																																							 6 Report	and	Recommendation	of	the	Board	on	Professional	Responsibility,	In	the	Matter	of	

L.	Sandra	White,	Bar	Docket	No.	292-04	(Aug.	20,	2009),	

http://www.dcbar.org/discipline/bpr_report/LSaundraWhite29204.pdf.	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 6 of 16
or	having	been	in	 the	public	employ,	should	not	after	his	retirement	accept	

employment	 in	 connection	 with	 any	 matter	 which	 he	 has	 investigated	 or	

passed	 upon	 while	 in	 such	 office	 or	 employ.” The	 court	 stressed	 that	 the	

purpose	 of	 Canon	 36	 “was	 to	 clarify	 the	 duties	 in	 Canon	 6	 as	 related	 to	

government	 attorneys,” id. at	 361,	 with	 a	 view	 to	 preventing	 “even the	

appearance	that	the	government	servant	may	take	a	certain	stand	in	the	hope	

of	later	being	privately	employed	to	uphold	or	upset	what	he	had	done.” Id. at	

359	(footnote	omitted).

While	recognizing	 this	preventive	purpose,	 the	Standard	Oil court	imported	

into	Canon	36	 the	same	“substantially	related” test	used	 to	evaluate	private	

side-switching	and	thus	the	same	focus	on	preventing	misuse	of	confidential	

information. Id. at	353-55

(citing	T.C.	Theatre	Corp.).	The	court	expressly	recognized	“it	is	doubtful	if	the	

Canons	of	Ethics	are	intended	to	disqualify	an	attorney	who	did	not	actually	

come	into	contact	with	materials	substantially	related	 to	the	controversy	at	

hand	when	he	was	acting	as	attorney	 for	a	 former	client	now	adverse	to	his	

position.” Id. at	 364.	 The	 court	added,	 however,	 that	a	“complainant	need	

only	show	access to	such	substantially	related material	and	the	inference	

that	 defendant	 received	 these	 confidences	 will	 follow.” Id. at	 354	

(emphasis	in	original)	(footnote	omitted);	see supra note	5.	Moreover,	“where	

there	 is	 a	 close	 question	 as	 to	 whether	 particular	 confidences	 of	 the	

former	client	will	be	pertinent	to	the	instant	case,	an	attorney	should	be	

disqualified	to	avoid	the	appearance	if	not	the	actuality	of	evil.” Id. at	364.

Brown	v.	District	of	Columbia	Bd.	of	Zoning	Adjustment,	486	A.2d	at 43-44 (emphasis	added).

Pursuant	to	Rule	7(m)	discussion	with	counsel,	Mr.	Noti	stated,	“I	had	no	involvement

with	or	knowledge	of	this	matter	at	the	Commission.”		Email	correspondence	of	Adav	Noti	to	

Jason	 Torchinsky,	 Jan.	 26,	 2018.	 	 GEO	 does	 not	 contend that	 Mr.	 Noti	 was	 the	 attorney	

assigned	 to	 MUR	 7180.	 	 However,	 whether	 Mr.	 Noti	 was	 personally	 involved	 in	 any	

substantive	consideration	of	MUR	7180	while	employed	at	the	Federal	Election	Commission	

or	not,	as	an	Associate	General	Counsel	in	the FEC’s Office	of	General	Counsel,	he	certainly	

had	“access” to	information	pertaining	to	MUR	7180	as	well	as	information	pertaining	to	the	

Federal	Election	Commission’s	handling	of	that	matter.		As	the	Brown court	noted:

Courts	 and	 the	 bar	 have	 called	 it	 fundamentally	 unfair	 for	 a	 former	

government	attorney,	newly	in	private	practice,	to	use	“specific	information	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 7 of 16
obtained	by	the	exercise	of	government	power” -- information	that	otherwise	

would	 not	 be	 available	 to	 his	 or	 her	 client	-- to	 the	 prejudice	 of	 opposing	

private	 party	 litigants.

Brown	 v.	District	 of	 Columbia	 Bd.	 of	 Zoning	 Adjustment,	 486	A.2d	at 45.	 	For	instance,	the	

Defendant	is	 known	 to	maintain information detailing	 the	length	 of	 time	 that	 has	 passed	

since	a	complaint	was	received,	both	for	tracking	the	applicable	statute	of	limitations,	and	

also	 to	 monitor	 the	 agency’s	 efficiency	 in	 considering	 enforcement	 matters.7	 	 Federal	

Election	Commission	Directive	68	(effective	Dec.	31,	2009)	requires	 the	Office	of	General	

Counsel to “circulate	the	Status	of	Enforcement	on	a	quarterly	basis	to	the	Commission.”		This	

information	is	directly	relevant	to	the	Plaintiff’s	cause	of	action	in	this	matter.

The	 Brown court	 identified	 two	 other	 concerns	 of great	 relevance to	 the	 present	

matter:	(1)	“after	leaving	the	government,	an	attorney	may	make	use	of	expertise	-- special	

knowledge	of	agency	policies,	practices,	and	procedures acquired	while	on	the	government	

payroll	-- to	 the	 advantage	 of	 private	 clients”	 and;	 (2)	 “after	 leaving	 the	 government,	 an	

attorney	may	make	use	of	government	contacts	(old	friends)	to	gain	special	advantage	for	

private	 clients.”	 	Brown	 v.	District	 of	 Columbia	 Bd.	 of	 Zoning	 Adjustment,	 486	A.2d	 37,	 46

(emphasis	 added).	 	 These	 two	 concerns,	 the	 court	 observed,	 are	 not	 addressed	 by	 the	

“substantially	related”	standard,	but	instead,	are	addressed	by	the	Ethics	In	Government	Act	

of	1978.		See	id.

B. Ethics	In	Government	Act	of	1978

Mr.	Noti’s actions	may	be	in	violation	of	18	U.S.C.	§	207,	which	imposes	restrictions	

on	 former	executive	 branch	employees	making	 communications or	appearances	with	 the	

																																																							 7 See, e.g., Memorandum from Chairman Walther re: Scheduling on Pending Enforcement Matters Awaiting 

Reason-to-Believe Consideration, Aug. 12, 2016, https://www.fec.gov/resources/updates/agendas/2016/mtgdoc_16-

33-a.pdf. 

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 8 of 16
intent	 to	 influence	 a	 department,	 agency,	 or	 court	 in	 connection	with	matters	 that	 came	

before	the	former	employee	while	employed	by	the	government.

18	 U.S.C.	 §	 207	 imposes	 either	 a	 permanent	 ban,	 a	 two-year or	 a	 one-year	

representation	 restriction	 on	 former	 government employees,	 depending	 on	 the	

circumstances.		The	permanent	ban	applies	to:

Any	person	who	is	an	officer	or	employee	(including	any	special	Government	

employee)	of	the	executive	branch	of	the	United	States	(including	any	

independent	agency	of	the	United	States),	or	of	the	District	of	Columbia,	and	

who,	after	the	termination	of	his	or	her	service	or	employment	with	the	

United	States	or	the	District	of	Columbia,	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	or	the	District	of	Columbia,	on	behalf	of	any	other	person	(except	the	

United	States	or	the	District	of	Columbia)	in	connection	with	a	particular	

matter--

(A) in	which	the	United	States	or	the	District	of	Columbia	is	a	party	or	

has	a	direct	and	substantial	interest,

(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,	shall	be	punished	as	provided	in	section	216	of	this	

title	[18	USCS	§	216].

18	U.S.C. §	207(a)(1).

The	two-year	representation	restriction	applies	to:

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	or	the	District	of	Columbia,	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	or	the	District	of	Columbia,	on	behalf	of	any	other	person	(except	the	

United	States	or	the	District	of	Columbia),	in	connection	with	a	particular	

matter--

(A)	in	which	the	United	States	or	the	District	of	Columbia	is	a	party	or	

has	a	direct	and	substantial	interest,

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 9 of 16
(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	or	the	District	of	

Columbia,	and

(C)	which	involved	a	specific	party	or	specific	parties	at	the	time	it	

was	so	pending, shall	be	punished	as	provided	in	section	216	of	this	

title	[18	USCS	§	216].

18	U.S.C. §	207(a)(2).

Finally,	 the	one-year	representation	restriction	applies,	 “[i]n	addition	 to	 the	

restrictions	set	forth	in	subsections	(a)	and	(b),” to:

[A]ny	person	who	is	an	officer	or	employee	(including	any	special	

Government	employee)	of	the	executive	branch	of	the	United	States	

(including	an	independent	agency),	who	is	referred	to	in	paragraph	(2),	and	

who,	within	1	year	after	the	termination	of	his	or	her	service	or	employment	

as	such	officer	or	employee,	knowingly	makes,	with	the	intent	to	influence,	

any	communication	to	or	appearance	before	any	officer	or	employee	of	the	

department	or	agency	in	which	such	person	served	within	1	year	before	such	

termination,	on	behalf	of	any	other	person	(except	the	United	States),	in	

connection	with	any	matter	on	which	such	person	seeks	official	action	by	any	

officer	or	employee	of	such	department	or	agency,	shall	be	punished	as	

provided	in	section	216	of	this	title	[18	USCS	§	216].

18	U.S.C. §	207(c)(1).		(If	Mr.	Noti	was	subject	to	this	latter	restriction	as	a	result of	

his	government “pay	grade,”	the	one-year	period	has	expired.)

The	Brown court	concluded	that	the	applicable	Rules	of	Professional	Responsibility	

do	 not	 apply	 so	 broadly	 as	 “to	 require	 disqualification	 solely	 on	 the	 basis	 of	 unseemly	

appearances,”	 which	 certainly	 exist	 here,	 but	 instead	 address	 “only	 three	 improprieties”:	

“The	lawyer:	(1)	may	disclose	confidential	information	to	the	prejudice	of	the	government	

client;	(2)	may	use	information	obtained	through	the	exercise	of	government	power	to	the	

prejudice	 of	 opposing	 private	 litigants;	 and	 (3)	 while	 in	government,	may	 have	 initiated,	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 10 of 16
structured,	or	neglected	a	matter	in	the	hope	of		using	it	later	 for	private	gain.”		Brown	v.	

District	of	Columbia	Bd.	of	Zoning	Adjustment,	486	A.2d	37,	47-48.

GEO,	 of	 course,	 fears a	 form	 of	 the	 second	 impropriety,	 that	 Mr.	 Noti	 “may	 use	

information	 obtained	 through	 the	 exercise	 of	 government	 power	 to	 the	 prejudice	 of	

opposing	private	litigants.”		GEO	is	not	a	party	 to	 this	litigation,	but	 the	Plaintiff’s	lawsuit	

seeks	to	compel	the	Defendant	to	take	action	with	respect	to	GEO. Mr.	Noti’s	participation	in	

this	matter	on	behalf	of	Plaintiff	is	an	 “unseemly	appearance”	at	a	 bare	minimum,	and as	

noted	herein	possibly a violation	of	federal	statutes.

C. Federal	Election	Commission	Confidentiality	Requirements

Finally,	Mr.	Noti’s	comments	to	the	media (and	to	his	current	employer,	as	well) about	

a	pending	Federal	Election	Commission	enforcement	matter	were	in	clear	violation	of	federal	

law	 requiring	 confidentiality	 of	 such	 proceedings.	 	In	 the	 Campaign	 Legal	 Center’s	 press	

release	of	June	15,	2017,	Mr.	Noti	stated	unequivocally,	“GEO	made	illegal	contributions.”		We	

do	 not	 know	 if	 this	 statement	 represented	 an	 interest	 group’s	 press	 release	 bluster,	 or	

whether	Mr.	Noti	was	revealing	confidential	information	about	conclusions	reached within	

the	Federal	Election	Commission.		The	Plaintiff’s	press	release	specifically	identifies	Mr.	Noti

as	 “a	 former	associate	general	counsel	 for	policy	at	 the	FEC,” which	clearly	signals	 to	 the	

press	release’s	recipients	that	Mr.	Noti	is	knowledgeable about	this matter.		Mr.	Noti	was	also	

quoted	saying,	“we	continue	to	wait	 for	the	FEC	to	hold	GEO	accountable,”	which,	coming	

from	a	 former	employee	of	the	agency,	suggests	that	the	Federal	Election	Commission,	or	

individuals	within	the	Federal	Election	Commission may,	in	 fact, be	seeking to	 “hold	GEO	

accountable.”

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 11 of 16
Mr.	 Noti	 then	 spoke	 with	 the	 Courthouse	 News	 Service,	 which	 reported:	 “The	

Campaign	Legal	Center’s	Noti	emphasized	that	the	election	commission’s	investigation	of	its	

November	request	is	ongoing	— and	that	his	group	could	technically	sue	over	that	delay.”8		

The	mere	existence	 of	any	 “investigation,”	along	with	any other	 details	 pertaining	 to	 the	

status	 of	 the	 Campaign	 Legal	 Center’s	 complaint,	 are	 part	 of	 the	 FEC’s	 confidential	

enforcement	proceedings,	and	protected	from	disclosure	by	federal	law.		Mr.	Noti	was	legally	

barred	 from	disclosing	 the	existence	of	a	pending	 “investigation.”		Pursuant	to	52	U.S.C.	 §	

30109(a)(12)(A),	

Any	notification	or	investigation	made	under	this	section	shall	not	be	made	

public	by	the	Commission	or	by	any	person	without	the	written	consent	of	

the	person	receiving	such	notification	or	the	person	with	respect	to	whom	

such	investigation	is	made.		

Neither	GEO	Corrections	Holdings,	Inc.,	nor	any	of	its	affiliates,	issued any	such	

written	consent.		

Mr.	Noti’s statement	to	media	in	June	2017	“that	his	group	could	technically	sue	over	

that	delay” indicates	 that	Mr.	Noti	was	aware,	mere weeks	after	leaving	the	FEC,	 that	 the	

agency	had	not	“act[ed]	on	such	complaint	during	the	120-day	period	beginning	on	the	date	

the	complaint	is	filed.” It appears	almost	certain that	when	Mr.	Noti	left	employment	with	

the	 Defendant,	 he	 was	 aware	 that	the	 agency had	 not	 taken	 any	 substantive	 action	with	

respect	to	MUR	7180.		A	substantive	action	includes the	Commissioners’ confidential	reasonto-believe	vote,	which	are	most	often	held	at	closed	Executive	Session	meetings	attended	by	

																																																							 8 Britain	Eakin,	Private-Prison	Turnaround	Triggers	DOJ	Records	Hunt,	Courthouse	News

Service,	June	16,	2017,	https://www.courthousenews.com/private-prison-turnaroundtriggers-doj-records-hunt/.		

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 12 of 16
Office	 of	General	 Counsel	 staff.	 	The	 Plaintiff	 would	 not	 have	 been	aware	 of	whether	 the	

Defendant	had	taken	a	reason-to-believe	vote	as	of	June	2017	independent of	Mr.	Noti.

A	 person	 who	 violates	 52	 U.S.C.	 §	 30109(a)(12)(A)	 “shall	 be	 fined	 not	 more	 than	

$2,000,”	and	“[a]ny such	member,	employee,	or	other	person	who	knowingly	and	willfully	

violates	the	provisions	of	subparagraph	(A)	shall	be	fined	not	more	than	$5,000.”		52	U.S.C.	§	

30109(a)(12)(B).		FEC	regulations	at	11	C.F.R.	§	111.21	provide	that:

[N]o	complaint	filed	with	the	Commission,	nor	any	notification	sent	by	the	

Commission,	nor	any	investigation	conducted	by	the	Commission,	nor	any	

findings	made	by	the	Commission	shall	be	made	public	by	the	Commission	or	

by	any	person	or	entity	without	the	written	consent	of	the	respondent	with	

respect	to	whom	the	complaint	was	filed,	the	notification	sent,	the	

investigation	conducted,	or	the	finding	made.

Additionally,	11	C.F.R.	§	7.7	provides:

Commission	employees	are	subject	to	criminal	penalties	if	they	discuss	or	otherwise	

make	public	any	matters	pertaining	to	a	complaint	or	investigation	under	52	U.S.C.	30109,	

without	the	written	permission	of	the	person	complained	against	or	being	investigated.		Such	

communications	are	prohibited	by	52	U.S.C.	30109(a)(12)(A).

Mr.	Noti’s	prior	public	statements	are	evidence	of	violations	of	these	provisions.		In	

addition,	 Mr.	 Noti’s	 comment	 to	the Courthouse	 News Service in	mid-June	 2017	 that	 “his	

group	 could	 technically	 sue	 over	 [the	 Federal	 Election	 Commission’s] delay,”	 clearly	

demonstrates	that	Mr.	Noti	was	aware	of	the	existence	of	the	cause	of	action	brought	in	the	

present	matter	around	the	time	he	left	the	Federal	Election	Commission.

II. The	Court	Should	Order	Mr.	Noti’s	Disqualification

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 13 of 16
“A	motion	to	disqualify	counsel	is	committed	to	the	sound	discretion	of	the	district	

court.”		Ambush	v.	Engelberg,	2017	U.S.	Dist.	LEXIS	167247,	*6	 (D.D.C.	Oct.	10,	2017).		 “In	

considering	 a	 motion	 to	 disqualify	 counsel,	 the	 district	 court	 must	 conduct	 a	 two-step	

inquiry:	 first,	it	must	determine	‘whether	a	violation	of	an	applicable	Rule	of	Professional	

Conduct	has	occurred	or	is	occurring,’ and	second,	‘if	so,	whether	such	violation	provides	

sufficient	grounds	for	disqualification.’ Id.	at	*7	quoting Headfirst	Baseball LLC	v.	Elwood,	999	

F.	Supp.	2d	199,	204-05 (D.D.C.	2013).

Courts	examine	“whether	two	matters	are	‘substantially	related’”	by:

[L]ook[ing] to	“both	the	facts	and	the	legal	issues	involved.”	 Brown,	486	A.2d	

at	49	(D.C.	1984).	In	doing	so,	courts	engage	in	a	three-step	analysis.	The	

court	must	first	“‘make	a	factual	reconstruction	of	the	scope	of	the	prior	legal	

representation.’” Id. (citation	omitted).	Second,	“[i]f	the	factual	contexts	

overlap,	the	court	then	has	to	determine	‘whether	it	is	reasonable	to	infer	

that	the	confidential	information	allegedly	given	would	have	been	given	to	a	

lawyer	representing	a	client	in	those	[prior]	matters.’” Id. (citation	omitted).	

Third,	“if	such	information	apparently was	available	to	counsel	in	the	prior	

representation,	the	court	has	to	determine	whether	it	‘is	relevant	to	the	

issues	raised	in	the	litigation	pending	against	the	former	client.’” Id. (citation	

omitted).

Headfirst	Baseball	LLC	v.	Elwood,	999	F.	Supp.	2d	199,	210.

As	explained	above,	it	is	reasonable	to	infer	that	confidential	information	about	the	

Defendant’s	consideration	of	MUR	7180	 “apparently	was	available	 to	counsel	in	 the	prior	

representation,”	 and	 there	 is	 no	 question	 that	 any	 information	 about	 the	 Defendant’s	

consideration	of	MUR	7180	“is	relevant	to	the	issues	raised	in	the	litigation	pending	against	

the	 former	 client.”	 	 “[A] court	 may	 draw	 ‘conclusion[s]	 about	 the	 possession	 of	 such	

information	.	.	.	based	on	the	nature	of	the	services	the	lawyer	provided	the	former	client	and	

the	 information	 that	 would	 in	 ordinary	 practice	 be	 learned	 by	 a	 lawyer	 providing	 such	

services.’ D.C.	R.	Prof'l	Conduct	1.9,	cmt.	3.”		Headfirst	Baseball	LLC	v.	Elwood,	999	F.	Supp.	2d	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 14 of 16
199,	211.		The	standard	for	finding	a	“substantial	relationship”	between	Mr.	Noti’s	previous	

representation	of	Defendant	and	his	current	representation	of	Plaintiff	is	met	here.		

The	D.C.	Circuit	has	granted	a	motion	to	disqualify	in	circumstances	where	“the	most	

concrete	 danger	 in	 [the] case	 is	 the	 appearance	 of	 impropriety	 which	 may	 affect	 the	

perceived	integrity	of	the	agency.”		Kessenich	v.	Commodity	Futures	Trading	Com.,	684	F.2d	

88,	 97	 (D.C.	 Cir.	 1982).		 In	Kessenich,	 the	 court	 observed	that	 “[i]t	is	 not	at	all	 difficult	 to	

imagine	that	[the	former	government	attorney] may	have	gained	some	advantage	from	his	

former	connection	with	the	case,	even	though	its	exact	outlines	have	not	been	articulated.”		

Id.		The	D.C.	Circuit	 further	stressed	the	critical	importance	of	“[t]he	integrity,	both	actual	

and	apparent,	of	 the	agency's	dispute	resolution	mechanism	is	essential	 to	 the	regulatory	

enforcement	scheme	created	by	Congress.”		Id.	at	98.		Similarly,	the	Second	Circuit	Court	of	

Appeals observed that	disqualification	is	warranted	in	two	types	of	cases,	one	of	which	is	

“where	 the	 attorney	 is	 at	 least	 potentially	 in	 a	 position	 to	 use	 privileged	 information	

concerning	the	other	side	through	prior	representation	... thus	giving	his	present	client	an	

unfair	advantage.”		Board	of	Education	v.	Nyquist,	590	F.2d	1241,	1246 (2d	Cir.	1979).		The	

same	 considerations	 are	 present	 here	 where	 the	 integrity	 of	 the	 Federal	 Election	

Commission’s	confidential	enforcement	process	has been	brought	into	question.				

This	Court	should	find	a	violation	of	Rule	1.11	and	require	Mr.	Noti’s	disqualification.

CONCLUSION

GEO	has no	objection	to	Mr.	Noti’s	practice	of	federal	campaign	finance	law	on	behalf	

of	 Plaintiff	 and	 does not	 seek	 to	 prevent	 him	 from	 engaging	 in	 all	matters	 involving	 the	

Defendant.		GEO	seeks only	to	prevent	Mr.	Noti	from participating in	this matter,	which	began	

while	 Mr.	 Noti	 was	 an	 employee	 of	 the	 Defendant,	 and	 which	 Mr.	 Noti now	 accuses	 of	

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 15 of 16
violating	the	law	while	he	was	still	an	employee	of	the	Defendant.		Mr.	Noti’s	participation	in	

this matter	threatens	GEO’s	ability	to	receive	the	same	fair	and	evenhanded	treatment	that	

all	other	persons	and	organizations	receive	from	the	Defendant.		These	other	persons	and	

organizations are	 not subjected	 to	 outside	 interference	 by	 former	 Federal	 Election	

Commission	attorneys now	in	the	employ	of	interest	groups	seeking	to	force	the	Defendant	

to	do	its	job	differently,	and	basic	notions	of	fair	play	and	due	process	demand	that	GEO	not	

be	the	victim	of this	unseemly,	unethical, and	improper	behavior.

For	the	foregoing	reasons,	GEO	hereby	requests	that	the	Court	order	that	Adav	Noti	

be	disqualified	and	withdraw	as	counsel	for	the	Plaintiff	in	this	action.

Respectfully	submitted,

_____/s/_Jason	Torchinsky______

Jason	Torchinsky	(D.C.	Bar	No.	976033)

jtorchinsky@hvjlaw.com

J.	Michael	Bayes (D.C.	Bar	No.	501845)

jmbayes@hvjlaw.com

HOLTZMAN VOGEL	JOSEFIAK	TORCHINSKY	PLLC

45	North	Hill	Drive,	Suite	100

Warrenton,	VA	20186

Tel:	(540)	341-8808

Fax:	(540)	341-8809

Counsel	for	GEO	Corrections Holdings,	Inc.

Dated:		January	29, 2018

Case 1:18-cv-00053-TSC Document 11-1 Filed 01/29/18 Page 16 of 16