July 19, 1978

78-40 MEMORANDUM OPINION FOR THE ASSISTANT

ATTORNEY GENERAL, LAND AND NATURAL

RESOURCES DIVISION

Conflicts of Interest (18 U.S.C. § 207)— American Bar

Association Code of Professional Responsibility

The Office of Professional Responsibility has referred your inquiry regarding 

the letter received from a former Assistant U.S. Attorney (A), concerning his 

possible representation of several defendants in a case brought by the United 

States on behalf of an Indian tribe on a reservation.

A states that he resigned as an Assistant U.S. Attorney in 1976. While he 

was in the U.S. Attorney’s Office, he participated, to some extent, in the case 

to prevent depletion of ground water supplies. The court has apparently granted 

the defendants’ motion to join ground water users, and A states that he expects 

to be asked to represent some of the water users. Whether he may properly do 

so depends on the application of the criminal conflict-of-interest laws and 

Canons 4 and 9 of the American Bar Association (ABA) Code of Professional 

Responsibility to the particular facts.

A indicates that he does not believe his involvement in the case was 

substantial. He says that the Land and Natural Resources Division had primary 

responsibility for the case and that an attorney (B) in the Land and Natural 

Resources Division planned and directed the Government’s position, drafted 

the complaint, and signed all motions. A does state that he conferred regularly 

with B and attended meetings with attorneys from the Department of the Interior 

Field Solicitor’s Office and attorneys of the Native American Rights Fund. 

However, he is not of the view that he possesses any confidential information 

or that his participation in the case would prejudice the United States.

B states that A was “ the Assistant United States Attorney with whom we 

worked in preparing and filing various papers.” A may have attended a portion 

of a meeting attended by the Bureau of Indian Affairs, the Department of 

Justice, and Native American Rights Fund attorneys to prepare an initial draft 

of the complaint, although A had no substantive involvement in the drafting. 

After the complaint was filed, A attended a meeting in the U.S. Attorney’s 

Office to discuss the litigation.
A memorandum written by B further indicates that A “ probably signed” the 

Government’s memoranda opposing the defendants’ motion to dismiss,1 but 

that he made no contribution to its contents. He was present for a portion of 

the hearing on this motion, but did not argue the Government’s position.

According to B, A was also present and was prepared to make a short 

statement of the Government’s position at a hearing on a motion filed by the 

Indian tribe relating to a class action issue, but he was not requested to state the 

Government’s position.

Finally, A was apparently present at a meeting attended by the Government’s 

soils, hydrology, and geology experts, who discussed their preliminary 

findings on matters relating to the case. B informed us that he believes some 

discussion of trial strategy occurred at this meeting as well.

It is not clear to what extent A’s account of his role is inconsistent with B’s 

statement, particularly regarding the meeting attended by the Government’s 

experts. But on the basis of B’s account, and at least in the absence of a 

showing by A that his involvement in and exposure to the case was more 

limited than now appears, we would advise that he not participate in the case.

The pertinent conflict-of-interest statute here is 18 U.S.C. § 207(a), providing that a former Government employee may not act as agent or attorney for 

anyone other than the United States in a particular matter involving the United 

States in which he participated “ personally and substantially” as a Government 

employee.2

The word “ substantial” in § 207(a) is intended to preclude coverage of mere 

casual exchanges with another employee about a matter, cf. B. Manning, 

Federal Conflict o f Interest Law 71 (1964), and “ participation by purely 

ministerial or procedural acts,” R. Perkins, The New Federal Conflict-ofinterest Law, 76 Harv. L. Rev. 1113, 1128 (1963), quoting Association of the 

Bar of the City of New York, Conflict of Interest and Federal Service 214

(1960). The word clearly was not designed to create an exemption for an 

individual who was involved but “ may have not bothered to dig into the 

substance of the case.” Id.

Although B states that A’s “ substantive participation was minimal,” and 

although we think this a close case, we are of the opinion that the pattern of 

personal involvement and responsibility described constitutes “ substantial 

participation” for purposes of 18 U.S.C. § 207(a), rather than the type of 

“ casual” or “ ministerial or procedural” involvement intended to be excluded 

from the statute’s coverage. This is not a situation, for example, in which A 

was merely asked to file papers prepared in the Land and Natural Resources

'It is not clear whether A 's statement in his letter that B signed all motions is inconsistent with 

the latter’s statement that A "probably signed” these particular memoranda. W e are not in a 

position to resolve a factual dispute on this issue if indeed one exists.

218 U .S.C. § 207(b) imposes a 1-year ban on personal appearances in particular matters that 

were under the former Government em ployee’s “ official responsibility” during his last year of 

Government service. This provision clearly barred A for as long as it applied, because the case was 

apparently assigned to him when he was in the U.S. Attorney’s Office. But § 207(b) will have no 

practical impact here because it has been more than a year since A left the U .S. A ttorney’s Office.

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Division without any further exposure to the case. Indeed, he concedes that he 

conferred regularly with B and attended some meetings pertaining to the case.3

We need not determine the applicability of 18 U.S.C. § 207(a) here, 

however, because it appears from the Lands Division attorney’s account that A 

is disqualified under Canon 4 of the ABA Code of Professional Responsibility. 

Disciplinary Rules 4-101(A) and (B) provide that, except with the consent of 

the client (or in certain other situations not relevant here), a lawyer may not 

reveal a confidence or secret of a client or use a confidence or secret to the 

disadvantage of the client. A lawyer violates these prohibitions only if he 

actually breaches the confidential relationship. Nevertheless, many authorities 

have held that as a procedural matter a lawyer is not qualified to represent a 

party in litigation if he formerly represented an adverse party in a matter 

substantially related to the pending litigation. ABA Formal Opinion 342, 62 

A.B.A.J. 517 (1976) and cases cited.

Moreover, it is ordinarily not necessary to establish that the attorney did, in 

fact, receive confidential information in the earlier representation in order for 

an attorney to be disqualified under Canon 4. An exploration of this issue might 

destroy the very confidentiality that Canon 4 is intended to protect. ABA 

Formal Opinion 342, supra. 517 n. 6; Emle Industries, Inc. v. Patentex,

478 F. (2d) 562, 571 (2d Cir. 1973). It is sufficient if “ it can reasonably be 

said that in the course of the former representation the attorney might have 

acquired information related to the subject matter of his subsequent representation.” NCK Organization, Ltd. v. Bregman, 542 F. (2d) 128, 134 (2d Cir. 

1976) [emphasis in original]. See also, Richardson v. Hamilton International

Corp., 469 F. (2d) 1382, 1385 (3d Cir. 1972).

In view of B’s account of A’s repeated involvement in and exposure to the 

case—particularly his apparent presence at a portion of the meeting with the 

Government’s experts at which B informed us there was probably some discussion of trial strategy—would seem to be a case in which it may be said that 

A “ might have acquired information related to the subject matter” of the lawsuit. As mentioned above, A did not merely perform the essentially ministerial 

act of filing papers prepared in Washington without having any occasion to 

consider the merits of the case.

3 A related issue is whether A is barred by DR 9 -10 1 (B) of the ABA Code, which provides that a 

lawyer may not accept private employment in a matter in which he had “ substantial responsibility” 

as a public employee. We have taken the position that whether a lawyer in a supervisory position 

had substantial responsibility under this rule depends on such factors as whether his relationship to 

the matter was merely formal, whether the subject matter was routine and involved no policy 

determination or was not otherwise of particular significance, and whether there were intervening 

layers of responsibility or other indications that the matter was not of a type with which the attorney 

would or should have had personal involvement. See, generally, Kesselhaut v. United States (Ct. 

Cl., March 29, 1976), slip opinion at 24-29, Opinion 889 o f the Committee on Professional and 

Judicial Ethics o f the Association of the Bar o f the City o f New York. Contra, ABA Formal 

Opinion 342, 62 A .B .A .J. 517, 520 (1976). Sim ilar considerations would no doubt apply where, 

as here, the form er Government lawyer had a nonsupervisory relationship to the case. As with the 

application of 18 U .S.C . § 207(a), the DR 9- 101(B) issue is a close one on the facts thus far 

presented and need not be finally resolved.

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A client ordinarily may waive the confidentiality requirement in Canon 4 and 

thereby permit an attorney to appear on behalf of an adverse party in a 

substantially related case, but a waiver is generally thought to be inappropriate 

where the public interest is at stake in a case, as where the United States is a 

party. ABA Informal Opinion 1233. On the facts as B described, we doubt that 

a waiver would be appropriate here in any event, because of the substantial 

question regarding A’s representation that would be raised under 18 U.S.C. 

§ 207(a) and DR 9-101(B).

For these reasons, we have strong reservations about the propriety of A’s 

proposed representation. Obviously, however, we have not been privy to all of 

the factual details, particularly those that might color the ultimate judgment 

here. We have attempted to outline the considerations that we think are 

relevant. We propose that your Division share this memorandum with A and 

invite him to comment and to add any factual details he thinks pertinent. If he 

so elects, and if your Division thinks it would be helpful, we would be pleased 

to take a second look at this question.

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office of Legal Counsel

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