July 3, 1979

79-48 MEMORANDUM OPINION FOR THE ACTING

DIRECTOR, EXECUTIVE OFFICE FOR U.S.

ATTORNEYS

(1) Conflict of Interest (18 U.S.C. § 208)—

Financial Interest

(2) Standards of Conduct (28 CFR § 45-735-

9(a))—Prohibition Against Practice of Law

Assistant Attorney General Harmon has asked me to reply to your 

memorandum of June 21, 1979, regarding Mr. A, U.S. Attorney, Southern District of Texas.

You request advice, first, with respect to A’s agreement with his former 

law partner, entered into before he took office as U.S. Attorney, that he 

will rejoin him as a partner after leaving that office. There is no statute or 

administrative regulation that precludes an officer or employee of this 

Department who came to it after departing another place of employment, 

including a law firm in which he was a partner, from returning to that 

place of employment pursuant to a pre-departure agreement to do so. 

Where there is an agreement of that kind, the officer or employee must of 

course comply with the requirement of 18 U.S.C. 208 that he disqualify 

himself from participating in his official capacity in any matter in which 

the other party to the agreement has a financial interest. In A’s case the requirement of the statute applies not only to a matter pending in his Office 

in which his former partner has a financial interest on his own account but 

also to any matter pending there in which the latter appears as counsel.

Your second inquiry is concerned with the law firm’s library, furniture, 

etc., and with the building in which the firm has its offices. The building is 

presumably owned of record by A and his former partner, either in their 

own names or through a corporate entity of some kind. No doubt A’s 

withdrawal from the firm served to relinquish his interest in its law books, 

equipment, and the like. However, it is not apparent that he has given up 

his interest in the building. The last paragraph of his letter may be read as 

a disclaimer of any right to income from that real property during his 

tenure as U.S. Attorney, but it is not a negation of his continuing half

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interest in the property. For purposes of the following discussion I shall attribute ownership of a half interest to him.

The standards of conduct of this Department prohibit a professional 

employee from engaging in the private practice of his profession, including the practice of law, except as specifically permitted by the 

Associate Attorney General “ in unusual circumstances.” 28 CFR 

45.735-9(a), (c). It seems clear that a departmental lawyer who has an interest of some kind in the ongoing earnings of a law firm of which he was 

formerly a member and which he is scheduled to rejoin is, for the purposes 

of this regulation, engaged in the private practice of law even though he is 

completely inactive in the firm. Here, however, it appears that A has relinquished all interest in the income of his former firm earned during his 

Government service. Accordingly, the resolution of the question of the applicability of the regulation to him involves a consideration of—more accurately, perhaps, it hinges on—the nature of his continuing half interest 

in the building where the firm’s offices are located. It is difficult to conceive of that equity interest as anything but an investment in real estate. To 

characterize its continued ownership by A as a means of engaging in the 

practice of law within the meaning of § 45.735-9(a) would be unrealistic.

In sum, we are of the view that A’s agreement with his former partner 

does not cut across any restriction of the conflict of interest laws, subject 

to A’s possible need to disqualify himself from official action under the requirement of 18 U.S.C. 208 noted above, or any restriction of the Department’s standards of conduct, including § 45.735-9(a).

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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