Restrictions on a Federal Appointee’s Continued

Employment by a Private Law Firm

Federal conflict o f interest laws, 18 U.S.C. §§ 202-209, and Department of Justice Standards of 

Conduct, 28 C.F.R. pt. 45, restrict the private practice o f law by an attorney while employed 

by the Department of Justice.

If the attorney is hired as a “regular government employee,” i.e., expected to serve more than 130 

days in any 365-day period, he will be prohibited from acting as an agent or attorney for 

anyone other than the United States in any matter in which the United States is a party or has 

a direct and substantial interest, and from receiving compensation for services rendered by 

himself or another in such matters. In addition, Department regulations prohibit the outside 

practice of law by Department of Justice employees, in the absence of a waiver.

If the attorney is hired as a “special government employee,” i.e., expected to serve 130 days or 

less in any 365-day period, he will be subject to representation and compensation restrictions 

only with respect to matters in which he has participated personally and substantially while in 

government or which are pending in the Department of Justice. The Department's regulation 

prohibiting the outside practice of law does not apply to special government employees.

Under 18 U.S.C. § 208 all government employees must disqualify themselves from participating 

for the government in any matters in which they or their employers, among others, have a 

financial interest.

August 1, 1983

M e m o r a n d u m O p i n i o n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l

We have been asked to advise you whether, from the perspective of conflict 

of interest and professional ethics, Mr. A may continue as a member of his law 

firm once he has been employed by this Department as General Counsel to the 

President’s Commission on Organized Crime. We understand that Mr. A is 

presently a senior partner at a law firm, and that he proposes to remain in the 

employ of that firm on a salaried basis through December 1983. We understand 

that Mr. A expects to be working on essentially three major matters for the firm 

during this period. Two of those matters do not involve the United States. The 

third involves his continued representation of domestic steel producers in steel 

dumping cases. At the same time that Mr. A is handling these private matters 

for the law firm, he proposes to serve in the Department without federal 

compensation. We understand that during this period the Department would

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hire Mr. A as a consultant pursuant to 5 U.S.C. § 3109.1 Mr. A’s proposed 

employment status after December 31, 1983 has not been described to us, but 

we presume that he will continue to serve, in some capacity, in the Department. 

After December 31, 1983, Mr. A believes he will be in a position to adjust his 

relationship with the firm.

In general, we conclude that the ultimate decision in this matter involves 

findings of fact which this Office is not in a position to make. We will therefore 

describe to you the factual test that you should apply and the legal consequences of the two alternative factual outcomes. More specifically, our conclusions can be summarized as follows:

(1) If Mr. A will be a regular government employee (i.e., expected to serve more than 130 days in any period of 365 days), 

his proposed dual employment will present significant and probably insurmountable problems under the conflict of interest 

statutes and the Department’s Standards of Conduct.

(2) If Mr. A will be a “special government employee” {i.e.,

expected to serve 130 days or less during any period of 365 

days) his proposed dual employment can be accomplished without violating the statutes or regulations.

(3) In either event, the Department should consider as a policy 

matter whether it wishes to permit an employee to serve simultaneously in a private law firm and in this Department and it 

should reach an understanding with Mr. A concerning various 

areas where issues of impropriety (actual or apparent) may arise.

I. Rules Applicable To Regular Government Employees

If Mr. A is deemed to be a regular government employee, he will be subject 

to the full restrictions of the Federal conflict of interest statutes, 18 U.S.C. 

§§ 202-209, and this Department’s Standards of Conduct, 28 C.F.R. Part 45. 

Among other things, this will mean that Mr. A will be prohibited from acting as 

agent or attorney for anyone other than the United States in any particular 

matter in which the United States is a party or has a direct and substantial

1 W e have left it to the Justice Management Division to determ ine whether it is appropriate to hire Mr. A as 

a consultant in this context, and we will likew ise leave the adm inistrative aspects of his appointment to their 

charge. See generally Decisions of the C om ptroller General, B -192406 (Oct. 12, 1978) (dealing with the 

hiring o f lawyers under 5 U.S.C. § 3109); B -l 14868-18 (Feb. 10, 1978) (same).

W e also have considered the legality of this D epartm ent's acceptance o f Mr. A ’s voluntary services in light 

of 31 U.S.C. § 1342. In our view, it is appropriate for this D epartm ent to accept the voluntary services of Mr. 

A in this context because 1) he will be serving as a consultant under 5 U.S.C. § 3109, a position for which 

there is no m inimum salary set by law and 2) he will execute a docum ent clearly indicating that he waives any 

right to com pensation from the United States for his services through December 1983. See generally

“Em ploym ent Status o f ‘V olunteers’ Connected With Federal Advisory Committees,” 6 Op. O.L.C. 160 

(1982). If Mr. A is unw illing to execute such a document, the Department may not accept his voluntary 

services.

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interest. See 18 U.S.C. § 205. In addition, he would be prohibited from receiving compensation for services rendered by himself or another in such matters. 

See 18 U.S.C. § 203. As we see it, these provisions will effectively bar Mr. A 

from his proposed participation in the steel dumping cases on behalf of the 

private clients. See also 28 C.F.R. § 45.735-9 (prohibiting the outside practice 

of law by Department of Justice employees, absent a waiver by the Deputy 

Attorney General or the presence of other factors not relevant here).2

Although there are, of course, other conflict of interest and ethical restrictions that would apply to Mr. A as a regular government employee, we have not 

undertaken a full description of them in this memorandum. If you find that Mr. 

A will in fact be a regular government employee, and you are inclined to pursue 

his dual employment proposal despite the restrictions described above, we will 

provide you with materials that describe more fully the ethics requirements for 

regular Department of Justice employees.

II. Rules Applicable to Special Government Employees

The conflict of interest statutes impose fewer and less rigorous restrictions 

on certain short-term or intermittent employees called “special government 

employees.” If Mr. A meets the test for special government employment 

described below, he would be subject only to these less rigorous restrictions 

and he would not be faced with statutory requirements that are necessarily and 

substantially inconsistent with his dual employment proposal.

As a special government employee, Mr. A would be subject to the representation and compensation restrictions of 18 U.S.C. §§ 203 and 205 only with 

respect to matters (1) in which he has participated personally and substantially 

while in government; or (2) which are pending in the Department of Justice.3 

See 18 U.S.C. §§ 203, 205. See also 18 U.S.C. § 209 (exempting special 

government employees from its restriction on private sources of compensation 

for services rendered to the government). Similarly, the Department’s regulation restricting outside professional practice does not apply to special government employees. See 28 C.F.R. § 45.7359(b).

In addition to the limited application of §§ 203 and 205, as a special government employee Mr. A would also be subject to the full disqualification rule of

2 It is not necessary at this point, regardless of the findings of fact made, for us to reach the question of 

w hether Mr. A would qualify for a waiver of the D epartm ent's regulation. If you decide Mr. A will be a 

regular government employee and that the obstacles o f 18 U.S.C. §§ 203 and 205 can be overcome, we would 

be happy to provide the Deputy Attorney General with whatever assistance he requires in considering a 

possible waiver.

3 This latter restriction would not apply until Mr. A had actually served in the Department for sixty-one 

days. See 18 U.S.C. §§ 203(c) and 205. The Department has not generally viewed matters in litigation before 

federal courts to be pending in this Department, but we do consider investigative matters and other prelitigation matters (such as administrative tort claim determinations) to be pending in the Department for 

purposes of these statutes. In light o f these precedents, we would be reluctant to assert that contact by Mr. A 

with this Department relating to the steel cases would violate §§ 203 or 205. Nonetheless, we would 

encourage you as a m atter of discretion to limit the extent of Mr. A’s direct contact with Department officials 

on these cases during the tenure of his government employment.

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18 U.S.C. § 208.4 Section 208 requires employees (including special government employees) to disqualify themselves from participating for the government in any matters in which they or, among others, their employers have a 

financial interest. So long as Mr. A maintains an employment relationship with 

his law firm, he would have to disqualify himself from any government matters 

in which the firm has a client or other financial interest.5 Given the limited 

subject matter of his proposed duties, we would not anticipate that this restriction will present any significant obstacle to Mr. A’s dual employment proposal.6

ML Test for Special Goveriminnieinit Employmeinit

The term “special Government employee” is defined to include “an officer 

or employee of the executive or legislative branch of the United States Government . .. who is retained, designated, appointed, or employed to perform, with 

or without compensation, for not to exceed one hundred and thirty days in any 

period of three hundred and sixty-five days, temporary duties either on a full 

time or intermittent basis.” 18 U.S.C. § 202. To be so appointed, the Department must in good faith estimate in advance of appointment that the individual 

will serve for no more than 130 days in the succeeding 365-day period, 

beginning on the day of appointment. In estimating the number of days to be 

served, the Department must count as a full day any day (including Saturday, 

Sunday or holiday) during which any time is expected to be devoted to 

performing government duties. See Federal Personnel Manual, Ch. 735, Appendix C.

The test for special government employment, of course, must be applied 

without regard to any preferred result. In this case, you must consider Mr. A’s 

anticipated employment through August o f 1984. Although we understand that 

Mr. A’s plans beyond December 1983 may be somewhat vague, this fact does 

not relieve you of responsibility for making a good faith estimate of his 

employment for the entire 365-day period.

As a general matter, employees are presumed to be regular government 

employees unless their appointing Department is comfortable with making an 

estimate that the employee will be needed to serve 130 days or less. The 130- 

day standard can be met because (1) the length of employee’s entire tenure with 

the government will be less than 130 days; (2) the employee is expected to

4 Mr. A will also be subject to the post-employment restrictions o f 18 U.S.C § 207(a) and (b). These postem ploym ent restrictions will be specific to M r. A’s work and responsibilities. In addition, he will be subject 

to the D epartm ent's Standards o f Conduct, 28 C.F.R. Part 45 and the Code of Professional Responsibility of 

the A m erican B ar Association. W e will be available to provide specific ethics and post-employment advice to 

Mr. A upon request.

3 This D epartm ent ordinarily requires disqualification from any m atter in which the law firm represents a 

client having such a financial interest, even though the financial interest in the matter may actually belong to 

the client rather than the firm.

6 O ur anticipation in this regard must be evaluated in the context of our limited knowledge and understanding o f the subject m atter o f Mr. A ’s proposed duties. Mr. A ’s firm is a well-known firm that represents 

essentially Fortune 500 com panies. Your office should consider, based upon your expertise in these matters, 

to w hat extent Mr. A’s clients would potentially be involved. In order to accomplish this consideration, Mr. A 

should probably be required to provide w hatever listing o f clients would be helpful.

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serve only intermittently over a period of more than 130 days; or (3) some 

combination of the above. Although it is possible that the proposed duties will 

not continue for the full three years presently anticipated, we think that you 

must presume that they will. Accordingly, you must presume that Mr. A will be 

needed to serve for the full 365-day period relevant for purposes of the special 

government employee test. This means that Mr. A would only qualify as a 

special government employee, if you can estimate, in good faith, that the 

Department’s need for his services will be so intermittent that they will not 

involve more than 130 days, in whole or in part, during any 365-day period. In 

making this factual determination you should rely on your own view of the 

needs of the Department, rather than on the employee’s views of the time he 

will devote to the job. You should bring to the decision your own knowledge of 

the nature of the work, and the Department’s expectations. You should also 

consult with the relevant Department officials about their expectations for the 

work to be preferred.

IV. Other Considerations

Assuming that you are satisfied that Mr. A’s dual employment proposal can 

be compatible with the statutes described above, you should also consider the 

proposal from a policy perspective. As you know, the Department normally 

requires its lawyers to sever all connections with law firms. See 28 C.F.R. 

§ 45.735-9. We assume that this policy represents an attempt to avoid actual 

and apparent conflicts of interest, and a desire to demand the undivided 

professional attention of the Department’s lawyers. Although the latter policy 

may be less compelling in a case like this where the employee’s services may 

indeed be needed only in a part-time capacity, the concern about actual or 

apparent impropriety persists. For this reason, we would recommend, if you go 

forward with the dual employment proposal, that you reach an understanding 

with Mr. A concerning limiting his contacts with this Department on behalf of 

private clients — for example, that he would not participate in settlement 

discussions in the steel cases nor attempt to gamer the Department’s support of 

legislation that would benefit domestic steel producers.

Although no such problems may in fact arise, it would be prudent to anticipate and avoid them to the extent feasible.7

R a l p h W . T a r r

Acting Assistant Attorney General

Office o f Legal Counsel

7 Along the same lines, you should reach some understanding with Mr. A concerning the problem of using 

support services and legal research assistance from his law firm. As you know, this Department does not have 

statutory authority to accept gifts, and any donation of such services by the law firm would constitute an 

unauthorized augmentation o f this D epartm ent's appropriations. See generally General Accounting Office, 

Principles o f Federal Appropriations Law 5-62, 5 -94 (1982). Moreover, use of the firm ’s associates and 

support staff would constitute a greater commingling of the firm and the Department than we have contem ­

plated in this opinion, and may well extend the potential for conflicts of interest beyond simply those cases 

handled by Mr. A himself.

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