Ethical Issues Raised by Assistant United States Attorneys'

Representation of Judges

A number of concerns are raised under the American Bar Association’s canons of 

professional ethics when an Assistant United States Attorney (AUSA) is asked to 

represent a judge in his or her district in a suit brought by a private individual. These 

ethical concerns could be handled through disclosure of prior or pending representation to opposing counsel, by arranging to have the judge represented by an AUSA 

from another district, or by retaining private counsel to represent the judge.

November 2, 1981

MEMORANDUM TO THE COUNSEL, OFFICE OF 

PROFESSIONAL RESPONSIBILITY, DEPARTMENT OF

JUSTICE

This responds to your request for our opinion on several questions 

raised by the United States Attorney for the Southern District of 

California, M. James Lorenz.1 These questions center around the ethical 

problems raised when an Assistant United States Attorney (AUSA) 

appears before a federal judge whom he is defending or has defended in 

a suit in which the judge is charged with depriving an individual of his 

constitutional rights. See 42 U.S.C. § 1983.2 On April 13, 1981, this and 

related problems, including that of representing a judge sued for actions 

taken while he was a federal officer but prior to his nomination to the 

bench, were raised at a meeting of the Advisory Committee for United 

States Attorneys held at the Department of Justice. In September, this 

Office received a letter from the United States Attorney in Puerto 

Rico, Raymond L. Acosta, outlining cases in which AUSAs represented judges who had been sued for their handling of administrative 

matters involving the district court.3 We believe that the present system 

of representation for judges by AUSAs raises recurrent ethical concerns 

that should be addressed at the highest levels of the Justice Department. We suggest that your Office convene a meeting that would

1 We have solicited and received the views of the Civil Division on this question.

2 Representation by the AUSA is authorized by the Department of Justice at the request of the 

Administrative Office of United States Courts. United States Attorneys’ Manual, § 1-10.000 (1977).

3 Letter from Raymond L. Acosta, United States Attorney for the District of Puerto Rico, to the 

Office of Legal Counsel, September 11, 1981 (Acosta Letter). F or example, Mr. Acosta described one 

case in which his Office was simultaneously prosecuting a lawyer for trespass against the Navy and 

defending the entire district court from charges that the judge’s refusal to admit the lawyer to the 

Puerto Rican bar was politically motivated.

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involve, at the least, the Executive Office for United States Attorneys, 

the Civil Division, and the Deputy Attorney General, in order to draw 

up a uniform policy that will eliminate, to the greatest extent possible, 

these ethical concerns.

I. Background

Most suits in which representation is requested appear to fall into the 

category outlined by Mr. Lorenz—the judge is sued for actions that are 

alleged to violate an individual’s constitutional rights. Such cases will, 

we assume, be defended on the ground of absolute judicial immunity. 

Others, like Mr. Acosta’s examples, arise in Bivens-type suits and mandamus actions stemming from administrative, rather than judicial, matters. These “demand more involvement on the part of the attorneys 

than is normally required in cases where the absolute immunity doctrine is applicable.” Acosta Ltr., at l.4

Permitting AUSAs to represent federal judges thus raises ethical 

concerns about which cases should be accepted and what, if anything, 

should be said to opposing counsel. These concerns are not matters of 

idle or academic speculation for the attorneys involved. At the Advisory Committee meeting, some of those present argued that a United 

States Attorney’s office is analogous to a firm with one partner and a 

number of associates, and that the same considerations that bind the 

private bar also bind the government. See Roberson v. United States, 249 

F.2d 737, 741 (5th Cir.), cert, denied, 356 U.S. 919 (1958) (United States 

Attorney is “of counsel” to all cases filed in his district). Others noted 

that as long as the judge was an AUSA’s client, it was immaterial 

whether the suit was frivolous or easily defended, since the merit of a 

suit is not the usual test for whether an attomey-client relationship 

exists.5

Mr. Lorenz asked whether the judges should be forced to recuse 

themselves because the situation is one in which the judge’s “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). We do not 

believe that it is appropriate for this Office to issue an opinion instructing the judiciary on its ethical duties. The individual judge, the appeals 

court, and the Administrative Office of the United States Courts, which 

is charged with issuing opinions on the ethical standards of judges, are 

the ultimate authorities for deciding issues of disqualifaction under 28 

U.S.C. § 455. Rather, the issue for this Department is how to resolve

4 We are unable to determine what percentage of requests for representation falls into each 

category, since not all decisions to represent judges are reported to the Civil Division or the

Executive Office for United States Attorneys. Mr. Acosta reported four requests in the last three 

years.

&“ [T]here invariably is at least an intangible interest on the part of any judge in having his actions 

vindicated.” ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1331 (1975), at 1. 

Mr. Acosta expressed a concern that, in the real world, and especially in the administrative actions 

with which he was familiar, judges remembered the AUSAs who had not successfully defended their 

actions.

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the ethical considerations for an AUSA, who, as the Attorney General’s representative, appears before a federal judge whom he is or has 

represented.

II. Tlhe Ethical Considerations

Attorneys employed by the Department are subject to the canons of 

professional ethics of the American Bar Association. 28 C.F.R. 

§ 45.735-l(b). Canon 9 states: “A lawyer should avoid even the appearance of professional impropriety.” To a layman, knowledge that the 

government’s attorney has at some time also been the judge’s attorney 

might well suggest that the AUSA will have an unfair advantage in 

practice before the judge. This was recognized in a recent ethics opinion in which a firm of private attorneys asked whether it could represent state judges “in actions brought against them under various federal 

statutes, including, presumably, [42 U.S.C. § 1983].” ABA Comm, on 

Ethics and Professional Responsibility (ABA Committee), Informal Op. 

1331 (1975), at 1. The situation arose when the state’s attorney general 

“declin[ed] to follow the practice of his predecessors” by providing the 

judges with state attorneys for their defense. Id.

The ABA Committee had some difficulty answering the question, 

noting that there was “no clearly controlling provision” in the Code of 

Professional Responsibility (CPR) and “no reference” in the Code of 

Judicial Conduct that was relevant. Id. at 2. “[I]n light of the sensitive 

problem in question,” however, the ABA Committee turned to the 

ethical considerations of the CPR:

For example, Canon 9 itself admonishes that “A lawyer 

should avoid even the appearance of professional impropriety.” It is debatable whether serving in the capacity 

suggested is to be regarded as fulfilling the role of a parttime public officer. However, it is suggestive of the aspirational level of conduct suggested by the Code of Professional Responsibility that Ethical Consideration 8-8 suggests that “A lawyer who is a public officer, whether full 

or part-time, should not engage in activities in which his 

personal or professional interests are or foreseeably may 

be in conflict with his official duties.” Obviously, contrary 

policy arguments can be made that this practice ought not 

to be discouraged by imposition of undue burdens upon 

counsel willing to undertake a commendable and often 

arduous task.

Under the described circumstances, we conclude that 

the portions of the Code of Professional Responsibility 

relating to the avoidance of the appearance of impropriety 

suggest that in many instances it would be preferable for 

your firm not to appear before a judge who is then being

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represented by you in these circumstances. Of course, it 

would be advisable, if possible, to effect an advance 

agreement with the court administrator establishing a procedure to avoid any conflicting representation.

Id.

In view of the obvious disadvantage to the fashioning of a categorical rule, especially because the factual contexts in which the question 

may arise are so diverse, we hesitate, as did the drafters of Opinion No. 

1331, to assert that one solution or another is best for all the varied 

cases that arise in the United States Attorneys’ Offices around the 

country. There are at least three alternatives that could be adopted. 

First, the AUSA could disclose his prior or pending 6 representation to 

opposing counsel. Disclosure of the representation will sustain the 

public’s confidence in the judicial system by: (1) eliminating the suspicion that something was hidden should the fact of representation come 

to light later on; and (2) demonstrating that the government is willing 

to disclose information which is arguably relevant, even though the 

disclosure might be of use to the other party. Disclosure will also 

sustain the faith of the private bar in the integrity of government 

attorneys.7 These considerations are grounded in the proposition that 

the impartiality of the judiciary is at the heart of its ability to enforce 

its judgments. Government attorneys have a special responsibility, as 

representatives of the Executive Branch in particular and of the government in general, to ensure that that impartiality is maintained.8

Given the sweep of the absolute immunity defense available in most 

cases and the fact that a prolonged attorney-client relationship probably 

will not develop between the AUSA and the judge, the disclosure 

should generally establish the lack of a basis for suspecting prejudice or 

favoritism on the part of the judge. There may well be unusual cases, 

however, in which representation is extensive, see Stump v. Sparkman,

435 U.S. 349 (1978), and the attorney-client relationship has become 

fully developed. Once the fact of representation has been disclosed, it 

would be for opposing counsel to decide whether to file a motion 

alleging bias or prejudice, 28 U.S.C. § 144, or for a judge to determine 

whether to recuse himself. 28 U.S.C. § 455; ABA Code of Judicial 

Conduct, Canon 3.® Another alternative would be for the opposing

6 Whether an AUSA should ever appear before a judge whom he is then representing without 

disclosure to opposing counsel obviously raises a serious ethical question

7 It will also help to prevent those attacks on the judiciary which tend to threaten its dignity and 

integrity. ABA Code of Professional Responsibility, EC 8-6.

8 “Reasons which call for a high standard of conduct on the part of all attorneys are increased in 

the case of counsel for the government.” Fahy, Special Ethical Problems o f Counsel for the Government,

33 Fed. B.J. 331, 332 (1974).

®It should not be too burdensome for an AUSA to keep track of which judges he has represented. 

The disclosure will not violate Canon 4’s injunction to protect client confidences, since the fact of 

representation is presumably a matter of public record. Nevertheless, the Executive Office for United

C ontinued

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counsel to waive his right to seek disqualification of the judge. 28 

U.S.C. § 455(e).10

Second, the judge could be represented by AUSAs from another 

United States Attorney’s office. Since most cases involve motions to 

dismiss based on absolute immunity, which could be handled largely by 

mail, travel costs should be minimal. For those few cases involving 

more extended representation, we believe that the more extensive the 

attorney-client relationship, the more justified the cost would be to 

protect the AUSA and the judge from questions about their integrity.

Finally, the Department could insist that the Administrative Office of 

the United States Courts pay for outside counsel for the judges. See 53 

Comp. Gen. 301 (1973).

We urge that this matter be resolved as promptly as possible in order 

to give the new United States Attorneys uniform guidance on an issue 

that will almost inevitably arise in their offices. Further, it would 

rescue judges from a dilemma in which acceptance of representation 

creates an ethical quandary both for them and for their attorneys.

L a r r y L. S im m s

Deputy Assistant Attorney General

Office o f Legal Counsel

States Attorneys may wish to issue a notice to all judges that' this fact will be disclosed in all future 

cases in order to avoid any embarrassment to the judge.

We do not believe that representation of a judge by one AUSA requires any other AUSA in the 

district to inform opposing counsel o f the representation. The Judicial Conference Advisory Committee on Judicial Activities does not consider the United States Attorney's Office a private law firm. As 

a result, a judge whose son is an AUSA need not recuse himself from cases in which the government 

appears, as would otherwise be mandated by 28 U.S.C. § 455(bX5)(ii). Advisory Committee on Judicial 

Activities, Advisory Opinion No. 38 (1974). See also United States v. Zagari, 419 F. Supp. 494, 505-06 

(N.D. Ca. 1976) (representation by AUSA of judge on motion to quash subpoena does not require 

recusal when either AUSA or any other member o f the United States Attorney’s office appears).

10 “Any justice . . . shall disqualify himself in any proceeding in which his impartiality might 

reasonably be questioned.” 28 U.S.C. § 455(a). The Civil Division has expressed some concern that 

obtaining the waiver creates another set of problems: “It must be noted, however, that waivers will 

probably be closely scrutinized. A request by a judge for a waiver places counsel in the awkward 

position o f acquiescing or openly doubting the court’s impartiality .... Where a waiver is contemplated, then, the best procedure would be for the AUSA and his opponent to work it out among 

themselves at the AUSA’s initiative and then present it to the judge.”

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