April 1, 1977

Standards of Conduct—Service of Assistant Section

Chief as Reporter on American Law Institute Project

You have asked us whether Mr. A, Assistant Chief of a section of a 

Department of Justice Division, may serve as reporter for an American 

Law Institute (ALI) project relating to the development of peer review 

standards. We understand that Mr. A would receive monetary compensation for his services.

Under 28 CFR § 45.735.9(a), no employee of the Department of 

Justice is permitted to engage in the outside practice of law unless he 

first obtains the approval of the Deputy Attorney General. We have 

previously taken the position that teaching does not constitute the 

outside practice of law. We believe that Mr. A ’s proposed service as a 

reporter more clearly resembles teaching than the practice of law, and 

as such, does not require the approval of the Deputy Attorney General. 

There is, moreover, no prohibition against the receipt of compensation 

for the work, assuming that nonpublic official departmental information 

is not used on the project.

In addition, 28 CFR § 45.735.9(d) provides:

No employee shall engage in any employment outside his official 

hours of duty or while on leave status if such employment will:

(1) In any manner interfere with the proper and effective 

performance of the duties of this position;

(2) Create or appear to create a conflict of interest, or

(3) Reflect adversely upon the Department of Justice.

The reference to activities permitted outside one’s “official hours of 

duty” may, by negative implication, be read to mean that no outside 

activities are permitted during regular office hours. Mr. A states in his 

memorandum to you that he believes a minimal amount of reportorial 

work, such as talking to people and mailing drafts, will have to be done 

during regular office hours. In our opinion, 28 CFR § 45.735.9(d) need 

not be construed so narrowly as to prohibit all such incidental activities

77-17 MEMORANDUM OPINION FOR AN

ASSISTANT ATTORNEY GENERAL FOR A

DEPARTMENT OF JUSTICE DIVISION

52
if they in fact take only a small amount of time and if you have no 

objection. However, it may be advisable to make some assurances, 

perhaps through a formal or informal compensatory time arrangement, 

that Mr. A will devote the time required to his official duties. If leave 

is required in connection with his ALI work, we recommend that 

annual leave or compensatory time be used, in view of the fact that Mr. 

A will receive compensation. Use of official or administrative leave 

provides a sufficiently close nexus to his official duties that the receipt 

of compensation from the ALI, in part covering the same activities, 

would raise questions under 18 U.S.C. § 209 and 28 CFR § 45.735.12(a).

We believe that all identifiable expenses of the project such as postage, stationery, and telephone costs should be borne by ALI or some 

other nongovernmental source. Any significant secretarial services 

should also be reimbursed if appropriate arrangements can be made. On 

the other hand, under the unique circumstances present here, the Department’s particular interest in Mr. A’s project might permit limited 

secretarial services to be made available to him for the project.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

53