December 21, 1977

Conflict of Interest—Former United States Attorney

This is in response to your inquiry regarding whether a former 

Assistant United States Attorney, Mr. A, may represent a potential 

defendant, Mr. X, in connection with a criminal investigation of one 

Mr. Z. We understand that the investigation involves Mr. Z ’s alleged 

diversion of insurance premiums from union contracts, much of which 

were skimmed off in commissions and expenses through a self-controlled insurance agency fronted by Mr. X. According to the Attorneyin-Charge of the Los Angeles Strike Force, Mr. A did not participate 

personally and substantially in the second investigation within the 

meaning of 18 U.S.C. § 207(a), and that investigation was not under his 

official responsibility for the purpose of 18 U.S.C. § 207(b).

The Attomey-in-Charge of the Strike Force states that Mr. Z was 

convicted under 18 U.S.C. § 1954 in March, 1977. He states that Mr. X 

was collaterally involved in the original “Z ” investigation but was not 

indicted or called as a witness. Mr. A apparently had access to reports 

on the first investigation and recommended against prosecution of a 

related tax case against a union official bribed by Mr. Z.

In a conversation with this Office, the Attorney-in-Charge stated that 

the current investigation of Mr. Z, in which Mr. X is a potential 

defendant, is entirely separate in time and circumstances from the 

earlier case with which Mr. A had some connection. As we understand 

it, there are no informants or transactions common to the two. It 

therefore appears that the investigation in which Mr. A has been asked 

to appear is not the same “particular matter” as the earlier investigation 

and that Mr. A is not prohibited by 18 U.S.C. § 207 from representing 

Mr. X. For the same reason, we do not believe that DR 9 -101(B) of the

77-72 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL

CRIMINAL DIVISION

285
American Bar Association Code of Professional Responsibility poses a 

bar here.1

Canon 4 of the Code of Professional Responsibility requires an attorney to preserve the confidences and secrets of a client. In order to 

prevent an attorney from being in a position where confidences and 

secrets may have to be revealed, courts have held that a lawyer is 

barred from representing a client in a matter that is “substantially 

related” to the subject of an earlier representation in which he may 

have acquired confidential information. See, e.g„ Gas-A-Tron v. Union

Oil Co., 534 F. 2d 1322 (9th Cir. 1976). As explained above, the two 

investigations here do not appear to be “substantially related,” and the 

Attomey-in-Charge has informed us he has no reason to believe that 

Mr. A may have previously acquired any confidential information that 

may be useful in the present investigation. Based on this understanding, 

Canon 4 poses no obstacle to the contemplated representation either.

We do not believe that this conclusion is altered by the fact that Mr. 

A will affiliate himself with a defense counsel who still represents Mr. 

Z in an appeal from his conviction growing out of the earlier investigation, in which Mr. A would be barred. Nor do we attach much 

significance to the suggestion that the public may be skeptical that Mr. 

A, as head of the Special Prosecution Unit, did not have knowledge of 

the new investigation of Mr. X and Mr. Z. As we understand it, Mr. A 

did not in fact have any such knowledge, which is the essential point 

for present purposes.

L e o n U l m a n

Deputy Assistant Attorney General

Office of Legal Counsel

1 D R 9 -101(B) provides that an attorney may not accept private employment in a 

matter in which he had substantial responsibility as a Government employee.

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