May 24, 1977

Standards of Conduct—Application Pursuant to 28

CFR § 45.735-9(c)

77-28 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL, CIVIL

RIGHTS DIVISION

This is in response to your request for our evaluation of Mr. A’s 

second application for leave to argue a civil rights case for private 

plaintiffs.

Before coming to the Department, Mr. A was counsel for the plaintiffs under the auspices o f a private nonprofit organization concerned 

with civil rights policy and litigation. The United States is not a party 

to the case, and the Department has not appeared as amicus or otherwise.

The matter is governed by the Department’s Standards of Conduct, 

28 CFR § 45.735-9(a), which provide that:

No professional employee shall engage in the private practice of 

his profession, including the practice of law, except as may be 

authorized by or under paragraph (c) or (e) of this section.

Paragraph (c) provides that the Associate Attorney G eneral1 may 

make specific exceptions to paragraph (a) in “unusual circumstances.” 

Applications under paragraph (c) must be transmitted through the applicant’s superior.2 Also relevant is 28 CFR § 45.735-9(d), which prohibits employees from engaging in off-duty employment which would 

interfere with the performance of their official duties, create actual or 

apparent conflicts of interest, or reflect adversely on the Department.

From the attached documents, we understand that the case in question is a class action, filed in May 1973, which alleged hiring discrimination by the local police and fire departments in violation of 42 U.S.C. 

§§ 1981 and 1983. In January 1975 the district court found that the 

police department had engaged in racial discrimination and ordered 

affirmative relief, including allocation of new hires by race. The decision was affirmed by the circuit court in June 1976. In May of that 

year, the fire department case was settled by a consent decree provid1 Form erly the D eputy Attorney General.

3 28 C F R § 45.735(e), which governs participation in legal aid program s for the indigent, does not apply to this m atter.

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ing for similar relief. However, in October 1976 the circuit court 

vacated its decision and remanded the police department case to the 

district court for rehearing in the light of Washington v. Davis, 426 U.S. 

229 (1976).

Mr. A entered on duty on January 31, 1977. Insofar as we are aware, 

he could have delayed coming to the Department until he had briefed 

and argued the case. Instead, on December 26, 1976, he requested leave 

from the then head of the Civil Rights Division and the then Deputy 

Attorney General, pursuant to § 45.735-9(c), to brief and argue the case 

on rehearing after he came to the Department.

In substance, Mr. A alleged that under Davis the district court would 

have to consider the factual issue of the police department’s discriminatory intent, and that he was uniquely qualified to argue this issue. In 

support of the request, Mr. A stated that he had been lead counsel from 

the inception of the case, that his replacement was unfamiliar with the 

factual background, that local counsel was not expert in the legal issues 

involved, that no transcript had been made because the district court 

preferred to videotape the testimony, and that he had already drafted a 

substantial portion of the brief. Mr. A asserted that his familiarity with 

the case, his trial notes, and his legal skills were of critical importance 

to the successful presentation of the police department case. He also 

stated that he would disclaim any connection with the United States 

Government and would receive no compensation for his efforts.

On January 31, 1977, the Acting Deputy Attorney General ruled that 

in the light of the “unusual circumstances,” Mr. A might assist in the 

preparation of plaintiffs’ brief but could not participate in any way in 

oral argument. Moreover, his ruling was subject to the conditions that 

Mr. A ’s efforts not interfere with his official duties, that he receive no 

compensation, and that his work for the private, nonprofit organization 

would create neither an actual nor apparent conflict of interest, as 

required by 28 CFR § 45.735-9(d). Mr. A prepared and signed plaintiffs’ brief, in which he stated that he was not acting in his official 

capacity and that his participation did not represent the Department or 

the United States. The brief was filed on March 21, 1977. The case is 

ready for argument, but argument has not yet been scheduled.

The Department has already ruled that Mr. A’s involvement in the 

case was a sufficiently “unusual circumstance” under 28 CFR § 45.735- 

9(c) to permit him to commit his time and effort to the brief and to 

identify himself with it. The immediate question here is whether a 

distinction should be drawn between preparing and signing the brief 

and participating in oral argument.

The ruling of the Acting Deputy Attorney General does not discuss 

the distinction between the two. The Executive Assistant to the Associate Attorney General informs us that it is the Department’s policy not 

to allow its attorneys to practice in the Federal courts. He says that an 

exception was made for Mr. A to finish the brief because he had

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already done substantial work on it and there did not appear to be time 

for his successor to become sufficiently familiar with the case before 

the brief was due. This was not true of oral argument, which had not 

yet been set.

The possible impact on the Department if Mr. A argues the case is 

threefold. First, a portion of his time and energy will be absorbed. 

Second, there is a risk that the Department will be identified with 

plaintiffs’ position in the public mind, despite any disclaimer by Mr. A. 

Third, he will continue his professional association with the private 

organization, which is one that interests itself in litigation related to his 

official duties. See 28 CFR § 47.735-9(d).

The hardship to Mr. A’s former clients if he does not argue their case 

is substantially less than if he had not prepared the brief. His replacement has had more time to familiarize himself with the case, and it 

should be possible to reduce the videotaped testimony to a transcript. 

Oral argument has not yet been scheduled. Moreover, as shown by the 

timing of his initial request, Mr. A knew before he came to the Department that its regulations forbade outside professional employment. He 

and his clients have had at least 4 months to arrange their affairs 

accordingly. In the light o f these facts, we do not believe that there is 

sufficient reason to allow Mr. A. to continue his private practice while 

a Government employee.

In conclusion, the responsibility for ruling on Mr. A’s request lies in 

the first instance with the Assistant Attorney General for the Civil 

Rights Division and ultimately with the Associate Attorney General. In 

our opinion, the unusual circumstances that were found to justify Mr. 

A’s appearance on the brief arose during the short time between his 

entry on duty and the due date of the brief. Because these circumstances no longer exist, our evaluation is that it would not be unduly 

harsh to deny Mr. A leave to argue the case, although that decision is 

not ours.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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