July 12, 1978

78-38 MEMORANDUM OPINION FOR DEPUTY

ASSISTANT ATTORNEY GENERAL, ANTITRUST

DIVISION

Standards of Conduct (28 CFR Part 45)—Service

of Employee in State Chapter of a National

Organization

This is in response to your request for our opinion regarding the propriety of 

Mr. A, an attorney in your Division, engaging in certain activities as a member 

of a national organization (“ the organization” ).

The principal issue is whether A may serve as chairman of the Legal Affairs 

Committee of his State’s chapter of the organization. The Legal Affairs 

Committee has the responsibility for assisting in litigation undertaken by the 

organization, recommending to the leadership of the State chapter areas of 

potential legal involvement, and representing the State chapter as a party or 

amicus curiae in litigation. In addition, the committee would advise the 

leadership of the State chapter regarding compliance with laws that the 

organization monitors, draft legislation to be supported by the organization at 

the State level, and analyze legislation prepared by others. As chairman, A 

would direct the activities of the committee, handling some work himself and 

delegating other work to members of the committee.

Rendering legal advice and analysis and recommending and conducting 

litigation are traditional activities of a lawyer. It is clear that A’s activities as 

chairman or even as an active member of the Legal Affairs Committee would 

constitute the private practice of his profession and therefore be prohibited by

28 CFR 45.735-9(a).‘ The Associate Attorney General may make specific 

exceptions to this prohibition in “ unusual circumstances,” upon a written 

application from the employee, directed through his superior. 28 CFR 

45.735-9(c). Typically, this exempting power has been exercised with respect 

to individual cases or matters where a need arises, e.g., to permit a lawyer 

joining the Department to complete work on a case that he was handling in 

private practice. Whether an exemption is appropriate in the present situation is

'T he absence of com pensation is immaterial on this point.

158
a matter for the Associate Attorney General. Were the Associate Attorney 

General to grant an exemption, A would nevertheless be prohibited by 18 

U.S.C. § 205 from acting as “ agent or attorney” for the organization in cases 

or other matters in which the United States is a party or has a direct and 

substantial interest.

A also inquires about other activities of the organization unrelated to the 

work of the Legal Affairs Committee that principally derive from his role as 

chairman of the organization’s National Issues Committee for a congressional 

district in his State. These activities include attendance at meetings, educating 

present and prospective members, appearing on radio programs, and lobbying 

elected officials, usually Members of Congress.

The Department’s regulations do not prohibit membership in an outside 

organization or active participation in its affairs. Nor do the regulations 

ordinarily prohibit an employee from petitioning elected officials at the Federal 

or State level on his own behalf or on behalf of an outside organization. See

also 5 U.S.C. § 7102. A should not, however, perform any of these activities 

on official time or allow his position as a Department employee to be used in 

any way in connection with his activities. In addition, if the occasion arises in 

which the organization becomes involved in an issue of particular interest to the 

Antitrust Division, consideration should be given to whether A’s activities 

would create a real or apparent conflict of interest. 28 CFR 45.735-9(d).

L e o n U l m a n

Deputy Assistant Attorney General

Office of Legal Counsel

159