b'Application of Conflict of Interest Rules to the Conduct of\nGovernment Litigation by Private Attorneys\nW h e th e r th e A m erican B ar A sso ciatio n \'s C o d e o f P rofessional R esponsibility w o u ld bar\np riv a te a tto rn e y s, retain ed as c o n tra c to rs to rep re se n t the interests o f th e U nited S tates\nin railro ad litig ation, from sim u ltan eo u sly re p re se n tin g o th e r p arties w h o se interests are\na d v e rse to th o se o f th e U n ited S tates, d ep e n d s on the facts o f each situation.\nE th ic a l co n stra in ts on p riv a te a tto rn e y s retain ed to c o n d u c t railro ad litigation on b e h a lf\no f th e U n ited S tates d o not end w ith th e term in a tio n o f th e railro ad litigation itself.\nT h e m aking o f litig ation ju d g m e n ts is a fu n ctio n at the c o re o f the P re sid e n t\xe2\x80\x99s A rtic le II\nd u ty to tak e c a re th at th e law s be faithfully ex ecu ted , and m ust, th e re fo re , be p e r\xc2\xad\nfo rm ed b y th o se w h o se rv e u n d er, and are responsible ultim ately to, the P resident.\nT h e sc o p e o f eth ical restrain ts on p riv a te a tto rn e y s retain ed by th e U n ited S tates d ep en d s\nupon extent o f n ecessa ry in teractio n w ith an d su p erv isio n by g o v e rn m e n t officials; if\nclo se in te ra c tio n an d su p e rv isio n can be an ticip ated , likelihood o f eth ical problem s\nd e v e lo p in g increases.\nA p p en d ix id entifies and discusses issues u n d e r th e co n flict o f interest law s ap p licab le to\nth e te m p o ra ry a p p o in tm e n t o f an a tto rn e y in p riv a te p ra c tic e as a g o v e rn m e n t a tto rn e y .\n\nFebruary 22, 1980\nM EM O R A N D U M O P IN IO N FO R T H E S P E C IA L A S S IST A N T\nTO T H E A TTO RNEY G EN E R A L\nThis responds to your request for our discussion o f the possible\napplication o f the Am erican Bar A ssociation\xe2\x80\x99s Code o f Professional\nResponsibility (ABA C ode) to a transfer o f litigation from the United\nStates Railway Association (U SRA ) to a departm ent or agency, such as\nthe D epartm ent o f Justice. This issue has arisen in the course o f this\nD epartm ent\xe2\x80\x99s preparation o f a feasibility study for Congress on the\ntransfer of U SR A \xe2\x80\x99s litigation to an agency o f the governm ent. This\nOffice has w ritten tw o earlier m em oranda that bear on that subject.1 At\nthis time, you have requested our discussion o f the following question.\nAssuming that USRA is abolished and its litigation w ere transferred\n1\nO ne m em orandum deall directly w ith the issue o f possibly transferring U S R A \xe2\x80\x99s litigation to the\nD eparim ent o f Justice. See m em orandum o f A pril 11, 1979, for the D eputy A ssociate A ttorney\nG eneral, \xe2\x80\x9c Possibility o f Transferring the Litigating Functions o f the United Stales R ailw ay A ssocia\xc2\xad\ntion to the D epartm ent o f Justice." A second m em orandum discussed at a general level the application\no f conflict o f interest statutes and principles to the conduct o f governm ent litigation by private\ncounsel. See m em orandum o f M arch 23, 1979, for the D eputy A ssociate A ttorney G eneral, \xe2\x80\x9cQuestions\nRaised by Proposed A ppointm ent o f L aw yer in Private Practice as a G overnm ent A ttorney for\nPurposes o f Trying Selected Civil C ases." [Note: T he M arch 23, 1979, m em orandum is published as an\nappendix to this opinion at p. 441, infra. Ed.)\n\n434\n\n\x0cpursuant to statute to the D epartm ent o f Justice, and assuming that the\nDepartm ent received authority to hire private attorneys as contractors\nto represent the interests o f the United States in litigation,2 w ould the\nCode bar such private attorneys from simultaneously representing in\nother litigation corporations or other parties whose interests are adverse\nto those o f the United States?\nWe should stress at the outset that the application o f the ABA Code\nin this situation, as in others, depends on the particular facts o f each\ncase. O f crucial importance, o f course, is the nature o f the representa\xc2\xad\ntion which the private attorneys may seek to undertake or have already\nundertaken. These facts are, in the first instance, peculiarly within the\nknowledge o f the private attorneys. Therefore, in this discussion we\ncan only identify the general principles that would apply in a particular\ncase.\nT hree o f the ABA C ode\xe2\x80\x99s canons o f ethics may bear on a situation in\nwhich a private attorney is to be engaged as an independent contractor\no f the D epartm ent to conduct railroad litigation. Canon 4 provides that\na law yer should preserve the confidences and secrets o f a client learned\nwhile representing the client. Canon 5 establishes that a law yer should\nexercise independent professional judgm ent on behalf o f a client. In\nparticular, such judgm ent should be exercised \xe2\x80\x9csolely for the benefit of\n[the] client and free of compromising influences and loyalties.\xe2\x80\x9d Ethical\nConsideration 5-1. Canon 9 directs that a law yer should avoid even the\nappearance o f professional im propriety. W e will focus here on Canon 5.\nIt states explicitly the principle that is most directly relevant to your\nquestion, namely, that an attorney should not compromise his independ\xc2\xad\nent professional judgm ent by \xe2\x80\x9cserving tw o masters\xe2\x80\x9d and is obligated to\nrepresent each client with undivided loyalty.\nT he applicable disciplinary rule, D R 5-105, reads as follows:\n(A)\n\nA lawyer shall decline proffered em ploym ent if\nthe exercise o f his independent professional ju d g \xc2\xad\nment in behalf o f a client will be or is likely to be\nadversely affected by the acceptance o f the prof\xc2\xad\nfered em ployment, or if it would be likely to\ninvolve him in representing differing interests,\nexcept to the extent permitted under D R 5105(C).\n\n2\nW e believe lhat under existing statutes the A ttorney G eneral w ould not have such authority. T he\nissues surrounding the authority o f the A ttorney G eneral to hire counsel outside the D epartm ent, and\nthe A ttorney G eneral\'s duty to supervise litigation involving the interests o f the U nited States, are\ndiscussed in o u r A pril II, 1979, m em orandum for the D eputy A ssociate A ttorney G eneral.\n\n435\n\n\x0c(B)\n\nA law yer shall not continue multiple em ploy\xc2\xad\nment if the exercise o f his independent profes\xc2\xad\nsional judgm ent in behalf o f a client will be or is\nlikely to be adversely affected by his representa\xc2\xad\ntion o f another client, or if it would be likely to\ninvolve him in representing differing interests,\nexcept to the extent perm itted under D R 5105(C).\n\n(C)\n\nIn the situations covered by D R 5 - 105(A) and\n(B), a lawyer may represent multiple clients if it\nis obvious that he can adequately represent the\ninterest o f each and if each consents to the repre\xc2\xad\nsentation after full disclosure o f the possible\neffect o f such representation on the exercise of\nhis independent professional judgm ent on behalf\no f each.\n\n(D )\n\nIf a law yer is required to decline em ploym ent or\nto w ithdraw from employm ent under a Discipli\xc2\xad\nnary Rule, no partner, or associate, or any other\nlaw yer affiliated with him or his firm, may\naccept o r continue such employment.\n\nT he foregoing rule establishes a tw o-part analysis for determining\nw hether, in a particular case, an exception may be made to the princi\xc2\xad\nple that a law yer should not represent multiple clients with \xe2\x80\x9cdiffering\ninterests\xe2\x80\x9d :3 (1) it must be \xe2\x80\x9cobvious\xe2\x80\x9d that the law yer can \xe2\x80\x9cadequately\xe2\x80\x9d\nrepresent each client\xe2\x80\x99s interest, and (2) each client must consent to the\nrepresentation after full disclosure of the facts. This tw o-part analysis is\nalso reflected in the proposed rules o f professional conduct, not yet\nadopted by the ABA, w hich w ere circulated at the ABA m id-winter\nm eeting in a discussion draft dated January 30, 1980. T hat draft enunci\xc2\xad\nates the basic principle that \xe2\x80\x9ca law yer may not act as advocate against a\nperson the law yer represents in some other matter, even if the litigation\nis w holly unrelated.\xe2\x80\x9d {Id. at p. 29.) The draft goes on to say, however,\nthat \xe2\x80\x9c . . . there are circum stances in which a law yer may act as\nadvocate against a client. F o r example, a law yer engaged in a suit\nagainst a large corporation with diverse operations may accept em ploy\xc2\xad\nment by the corporation in an unrelated m atter if doing so will not\naffect the law yer\xe2\x80\x99s conduct o f the suit and if both the litigant and the\ncorporation consent upon adequate disclosure.\xe2\x80\x9d {Id.) Accordingly, the\nproposed ethical rules maintain both the requirem ent that dual represen\xc2\xad\ntation would \xe2\x80\x9cnot affect the law yer\xe2\x80\x99s conduct of the suit\xe2\x80\x9d and, thus,\n3\nT h e phrase, \xe2\x80\x9cdiffering interests,\xe2\x80\x9d is defined rath er broadly in the A B A C ode. It includes \xe2\x80\x9cevery\ninterest that will adversely affect eith er the ju dgm ent o r the loyally o f a law yer to a client, w hether it\nbe a conflicting, inconsistent, diverse, o r o th er interest."\n\n436\n\n\x0cthat the lawyer can adequately represent the client\xe2\x80\x99s interests and the\nrequirement that each client must consent to such representation.\nT he principles o f Canon 5 w ould apply to the governm ent\xe2\x80\x99s inde\xc2\xad\npendent contractor that sought simultaneously to represent both the\nUnited States, and in other litigation another party with interests ad\xc2\xad\nverse to those o f the United States. In such a situation, a court will\nconsider not just w hether the tw o matters as to which simultaneous\nrepresentation is to be undertaken are substantially related, but also\nw hether \xe2\x80\x9cthe duty o f undivided loyalty w hich an attorney owes to\neach of his clients\xe2\x80\x9d may be discharged. Cinema 5, Ltd. v. Cinerama,\nInc., 528 F.2d 1384, 1385-87 (2d Cir. 1976). At a minimum, a court\nwould normally expect that participation in a lawsuit against a client, or\nsimilar adverse representation, had been fully disclosed to and con\xc2\xad\nsented to by all concerned clients. See id. at 1386; see also IB M v. Levin,\n579 F.2d 271, 280 (3d Cir. 1978) (an attorney \xe2\x80\x9cmust resolve all doubts\nin favor o f full disclosure to a client o f the facts o f the attorney\xe2\x80\x99s\nconcurrent representation o f another client in a lawsuit against him.\xe2\x80\x9d).\nM oreover, a court may well take an independent look at the underlying\nfacts o f the dual representation. As the C ourt of Appeals for the\nSecond Circuit has written:\nW here the relationship is a continuing one, adverse repre\xc2\xad\nsentation is prim a facie im proper . . . and the attorney\nmust be prepared to show, at the very least, that there\nwill be no actual or apparent conflict in loyalties o r dimi\xc2\xad\nnution in the vigor o f his representation.4\nIn view o f these principles, as a practical m atter tw o different steps\nwould have to be taken in the present situation. First, before any\nprivate firm w ere retained to represent the United States in the railroad\nlitigation, it would be necessary for the United States to know about\ncases\xe2\x80\x94involving litigation, counseling or other aspects o f representa\xc2\xad\ntion\xe2\x80\x94that the firm presently has in which the interests o f the United\nStates in the railroad litigation would be implicated. Then, each o f the\ncases should be studied in order to determ ine w hether the representa\xc2\xad\ntion called for by them would make it unlikely that the private atto r\xc2\xad\nneys could also represent with undivided loyalty the interests o f the\nUnited States in the railroad litigation. If agencies or instrumentalities\no f the United States other than the D epartm ent o f Justice w ere in\xc2\xad\nvolved in the firm\xe2\x80\x99s other cases, those agencies should be consulted in\ndetermining w hether a conflict of interest would arise from engaging\nthe firm in the railroad litigation.\nSecond, both the United States and the law firm\xe2\x80\x99s other present\nclients would have to agree to its representation o f the United States in\nthe railroad litigation. And, w henever the firm sought to engage a new\n4 Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976) (emphasis in original).\n\n437\n\n\x0cclient in a m atter involving the United States, the firm would have an\nobligation to inform the United States o f that fact. In that way, the\nUnited States would be able to determ ine w hether it should continue to\nconsent to representation by the private attorneys o f its interests in the\nrailroad litigation.\nAlso, the ethical constraints would not end w ith the termination o f\nthe railroad litigation itself. Even after the attorney-client relationship\nbetw een private attorneys and the United States ended, the private\nattorneys w ould be bound not to reveal confidences o f the United\nStates gained as its lawyer. T he \xe2\x80\x9cclearly settled test\xe2\x80\x9d in disqualification\nm atters w here the adverse party is the attorney\xe2\x80\x99s form er client is the socalled \xe2\x80\x9csubstantial relationship\xe2\x80\x9d test: \xe2\x80\x9c . . . the attorney will be\ndisqualified if the subject m atter o f the tw o representations are \xe2\x80\x98substan\xc2\xad\ntially related.\xe2\x80\x99 \xe2\x80\x9d Westinghouse Elec. Corp. v. G u lf O il Corp., 588 F.2d\n221, 223 (7th Cir. 1978); see also T.C. & Theatre Corp. v. Warner Bros.\nPictures, Inc., 113 F. Supp. 265, 268 (S.D .N.Y. 1953). This test \xe2\x80\x9c em\xc2\xad\nbodies the substance o f Canons 4 and 9 o f the A B A Code o f Profes\xc2\xad\nsional Responsibility,\xe2\x80\x9d 588 F.2d at 224. It turns on \xe2\x80\x9cthe possibility, or\nappearance thereof, that confidential inform ation m ight have been given\nto the attorney in relation to the subsequent m atter in w hich disqualifi\xc2\xad\ncation is sought.\xe2\x80\x9d Id.; see also Westinghouse Elec. Corp. v. Kerr-M cGee\nCorp., 580 F.2d 1311, 1322 (7th Cir. 1978).5\nIn addition to the foregoing, we think a w ord is in order on a related,\nbut som ewhat distinct, set o f issues. T here has always been in this\nOffice a basic question w hether it is appropriate for the A ttorney\nG eneral (or the President) to contract out the litigation responsibility of\nthe United States. T he question has both a constitutional and a policy\naspect. First, on the constitutional level, we have long asserted that the\nmaking o f litigation judgm ents (variously described as prosecutorial\ndiscretion or litigation m anagem ent) is a function at the core o f the\nPresident\xe2\x80\x99s A rticle II duty to take care that the laws be faithfully\nexecuted, and must, therefore, be perform ed by those w ho serve under,\nand are responsible ultim ately to, the President. Second, on the policy\nlevel, w e have enunciated the view that the perform ance o f this func\xc2\xad\ntion is best assured by centralizing all litigation in one agency under\none Cabinet official. W e have long defended the essentiality o f A tto r\xc2\xad\nney G eneral \xe2\x80\x9csupervision\xe2\x80\x9d and \xe2\x80\x9ccontrol\xe2\x80\x9d o f litigation involving the\nUnited States.\nO f course, at the same time, this D epartm ent has often acknowledged\nthe m erit\xe2\x80\x94o r at least the tolerability\xe2\x80\x94o f allowing the independent\nregulatory commissions and governm ent chartered corporations to\n*\nA num ber o f steps should also be taken by a law firm d uring the course o f representing the United\nStates to p ro tect any confidences gained during that representation from o th e r attorneys in the firm\nw h o may be involved in cases involving the U nited States, such as assuring that the files o f the\nrailroad case will only be accessible to certain attorneys and those attorneys will have no contacts\nw ith o th ers in the firm w ith respect to o th e r cases involving the U nited States.\n\n438\n\n\x0cretain independent litigating authtirity. (Indeed, USRA was one o f these\nindependent entities.) O ur acceptance o f that independence has grow n\nout o f an appreciation o f the rather distinct nature o f these entities; they\nwere created by Congress to function to some extent beyond the\ncontrol of the President. As long as their functions are not controllable\nin the normal m anner by the Executive Branch, it makes at least\nreasonably good sense to allow their litigation judgm ents to go forw ard\noutside the President\xe2\x80\x99s and the A ttorney G eneral\xe2\x80\x99s control. H ow ever,\nthe abolition of the independent entity and its incorporation into the\nstructure o f the Executive Branch w ould remove the only legitimate\ntraditional reason for independent litigation responsibility.\nIf the USRA is to be no longer a party to the litigation, and if the\nUnited States is to be the only party having an interest in the outcom e\no f the pending valuation cases, our knee jerk response ordinarily would\nbe that there is no cause for having lawyers other than those supervised\nby the A ttorney G eneral making the litigation judgm ents and arguing\nthe United States\xe2\x80\x99 cause in court. T he question you have posed as an\nethical issue has, candidly, given us considerable concern because it\ninvolves a proposal that is alien to our experience and contrary to this\nD epartm ent\xe2\x80\x99s usual stance on questions o f litigation supervision. H ow\ncan a lawyer represent the United States in court if he or she is not\naccountable to the United States? H ow can that law yer divine w hether\nthe position he or she intends to take in court\xe2\x80\x94both on questions o f\nprocedure and substance\xe2\x80\x94is the view o f the United States? A t the least,\nunless there is central supervisory authority, the positions taken in these\ncases could only reflect the position of the United States in these cases\nand not in other cases litigated by this Departm ent.\nO ur study o f the ethical question you posed has led us to the view\nthat the ethical inquiry inevitably merges with these overarching ques\xc2\xad\ntions o f policy. They m erge for this reason: T he extent to w hich a\nprivate law yer or firm can both represent the United States and litigate\nagainst it may depend upon the extent to which the w ork done on\nbehalf of the United States can take place in a sterile environm ent\nremoved from the usual exchange of information and personal inter\xc2\xad\nchange that characterizes our litigation practice. T hat is, if the repre\xc2\xad\nsentational activity could be perform ed w ithout consultation and ex\xc2\xad\nchange within this Departm ent, it might be fairly easy to conclude that\nthere is less reason to believe that client confidences will be misused or\nthat loyalty will be undercut. The fully independent contractor probably\nfits well within that structure. Such a contractor would receive an\nassignment and carry it out w ithout further input or second-guessing by\nthe Departm ent. Thus, if we w ere to retain a law firm to perform a\nstudy on behalf o f the Departm ent, the perform ance o f that segregable\nactivity would probably not jeopardize the firm\xe2\x80\x99s ability to litigate\nagainst this D epartm ent in cases unrelated to that subject matter.\n\n439\n\n\x0cT he question that we find especially troubling here is w hether that\nsame firm can, realistically and consistently with our traditional under\xc2\xad\nstanding o f the role o f this D epartm ent, undertake a contract to litigate\non behalf of the United States that will not force it to interact closely\nwith this D epartm ent. If the answ er is that interaction and supervision\nare to be anticipated, then to that extent the likelihood o f ethical\nproblems correspondingly increases. In this same vein, one additional\npoint should be reemphasized. It will not suffice for this D epartm ent\nalone to make the judgm ents w hether ethical problems appear in other\ncases in w hich the law yer o r firm may be involved. In those cases the\nviews o f our client agencies will have to be seriously evaluated, and we\nsee no way in advance o f consultation with those agencies that this\nD epartm ent can pass on w hether disqualification would be required in\nsome other cases.\nT he question you raise is obviously a difficult one, and we w ould not\nw ant our discussion here to suggest that the ethical dilemma presents an\ninsurm ountable obstacle. W e w ould be pleased to address this question\nfurther as m ore concrete facts becom e available.\nL arry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n440\n\n\x0cA P P E N D IX\nM arch 23, 1979\nM EM O R A N D U M O P IN IO N F O R T H E D E P U T Y A S S O C IA T E\nATTORNEY G EN ERA L\nThis responds to your request for advice regarding problem s that\nwould be raised under the conflict o f interest laws in connection w ith a\nproposed tem porary appointm ent o f a law yer (L) in private practice as\na governm ent attorney for the purpose o f trying selected civil cases.\nYou stated that a num ber o f alternatives are being considered: service\nwith or w ithout compensation, on a part- or full-time basis, with or\nwithout continuing affiliation with a private firm, for a period o f time\nof a few months to about tw o years. In this m em orandum we discuss\nthe principal questions raised by these alternative proposals: (1) w hether\nthe lawyer may be hired as an independent contractor rather than as a\ngovernm ent employee; (2) the compensation he can be paid; (3) the\nextent to w hich his disqualification would be necessary pursuant to 18\nU.S.C. \xc2\xa7 208; (4) other limitations applicable to the law yer and his\npartners during the law yer\xe2\x80\x99s tenure with the governm ent; (5) restric\xc2\xad\ntions on post-em ploym ent activities applicable to the law yer and his\npartners; and (6) issues raised under the A B A C ode o f Professional\nResponsibility in connection with the proposed appointm ent. As you\nknow, and as our com m ents in this m em orandum dem onstrate, the\nrelevant federal personnel, conflict o f interest, and ethical requirem ents\nconstitute a formidable body o f regulation. In our w ork in these areas\nwe have frequently found that there is no reasonable substitute for\ncareful case-by-case assessments. A t the level o f generality called for by\nyour request we can do little m ore than identify the m ajor consider\xc2\xad\nations and suggest how they have been resolved in the past. W e would,\no f course, be pleased to elaborate on any o f these m atters, o r to provide\nspecific advice on any particular arrangem ents as you may deem\nhelpful.\n\n1. Independent Contractor or Government Employee\nOfficers and em ployees in the Executive Branch are covered by the\nconflict o f interest laws; independent contractors are not. O ne w ho in\nfact will serve as a governm ent em ployee may not, how ever, be hired\nas an independent contractor to avoid the application o f the conflict o f\n\n441\n\n\x0cinterest laws. T he term s \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cem ployee\xe2\x80\x9d are not defined in\nthe conflict o f interest laws themselves. T he definitions o f these terms\nprovided by \xc2\xa7\xc2\xa72104 and 2105 o f Title 5 are ordinarily referred to for\nguidance. T hree elements are regarded as having critical significance:\n(1) appointm ent in the civil service by one o f the federal officers or\nem ployees specified; (2) perform ance o f a federal function under au\xc2\xad\nthority o f law or an \xe2\x80\x9cexecutive act\xe2\x80\x9d ; \xe2\x80\x98 and (3) supervision by a federal\nofficial o f the perform ance o f the duties o f the position.2 In this case, L\nwould seem plainly to be an employee: he would be formally ap\xc2\xad\npointed, w ould perform services ordinarily perform ed by D epartm ent\nemployees pursuant to 28 U.S.C. \xc2\xa7 516,3 and w ould be under the super\xc2\xad\nvision o f D epartm ent officials w ho would remain responsible for the\nconduct o f the litigation in question.4 In addition, \xc2\xa7 516 o f Title 28\nreserves to \xe2\x80\x9cofficers\xe2\x80\x9d o f the D epartm ent o f Justice the authority to\nconduct litigation in w hich the United States is a party. F or both these\nreasons, we believe L must be appointed as an employee, rather than as\nan independent contractor.\n\n2. Compensation\nW e assume that L w ould be em ployed on a tem porary basis either as\na Special Assistant United States A ttorney pursuant to 28 U.S.C. \xc2\xa7543,\nor as a special attorney or special assistant to the A ttorney General\npursuant to 28 U.S.C. \xc2\xa7 515(b).5 If appointed as a Special Assistant\n\'T h e meaning o f the phrase \xe2\x80\x9cexecutive a ct,\xe2\x80\x99* used in 5 U.S.C. \xc2\xa7 2105(a)(2), is unclear. Perform ance\no f executive functions w ould, how ever, clearly com e w ithin the term s o f the statute.\n2 T h e Civil Service Commission has developed a m ore lengthy list o f indicia o f em ployee status:\nservice under the supervision o f a federal em ployee; w ork in governm ent space w ith governm ent\nequipm ent; access to governm ent files; handling o f specific agency problems; service on m ore than one\noccasion on the same project; w ork on dates and hours requjred to be reported to the agency. See\nFederal Personnel Manual, ch. 304. See also Lodge 1858. Am . Fed. o f Gov\'t Emp. v. Administrator,\nN A SA , 424 F. Supp. 186 (D .D .C . 1976); B. M anning, Federal Conflict o f Interest Law 27-34 (1964).\n3 H e w ould not, therefore, qualify as an expert o r a consultant w hose services may be procured by\nc on tract pursuant to 5 U.S.C. \xc2\xa73109 as authorized by \xc2\xa7 4 (c), D epartm ent o f Justice A ppropriation\nA uthorization A ct, Fiscal Year 1979, Pub. L. No. 95-624, 92 Stat. 3459, 3462.\n4 T h e C o m p tro ller G enera) has recognized that notw ithstanding the general rule that purely per\xc2\xad\nsona) services must be perform ed by regular governm ent em ployees, there may be unusual circum \xc2\xad\nstances w h ere\xe2\x80\x94because o f the nature o f the w ork o r the existence o f conditions not perm itting its\nperform ance in the usual m anner (such as w here regular em ployees are not qualified o r are not\navailable)\xe2\x80\x94co n tractin g for personal services may be perm itted. Such circum stances exist w here, in\no rd e r to avoid the appearance o f conflict o f interest, it becom es necessary to retain private counsel to\ndefend a federal em ployee sued in his individual,* rath er than official, capacity in a civil proceeding\nw hich arises out o f his perform ance o f official duties at the same tim e that the em ployee is the target\no f a crim inal investigation concerning the act o r acts for w hich he seeks representation. See 28 C .F.R .\n\xc2\xa7\xc2\xa7 50.15, 50.16 (1978). N o such unusual circum stances appear to exist in the instant case.\n5 N otw ithstanding the existence o f this authority, governm ent*w ide lim itations on hiring may be in\neffect at the tim e o f the proposed appointm ent. A general freeze on perm anent hiring could continue\nin effect in o rd e r to im plem ent the requirem ents o f \xc2\xa7 3 1 1(a) o f the Civil Service R eform A ct o f 1978,\nPublic Law No. 95-454, 92 Stat. 1111, 1153, w hich provides that the total num ber o f federal civilian\nem ployees on Septem ber 30, 1979, may not exceed the num ber on Septem ber 30, 1977. T em porary\nhiring m ay not be used to circum vent such a freeze. See O M B Bulletin 79-2, H 3, (O ctober 27, 1978).\nIn addition, it is no tew o rth y that the em ploym ent ceiling on total em ployees, imposed by O M B on\neach agency, encom passes tem porary employees.\n\n442\n\n\x0cUnited States A ttorney, L \xe2\x80\x99s salary would be adm inistratively deter\xc2\xad\nmined pursuant to 28 U.S.C. \xc2\xa7 548. Because o f the ceiling now imposed\nby 5 U.S.C. \xc2\xa75308, the maximum per diem rate paid Special Assistant\nUnited States A ttorneys is $182. Since no minimum salary is established\nby law for such positions, L might also be appointed w ithout com pen\xc2\xad\nsation should he so desire.6 If appointed as a special assistant or special\nattorney, L could be paid an annual salary fixed by the A ttorney\nG eneral at not more than $12,000. 28 U.S.C. \xc2\xa7 515(b). W e have previ\xc2\xad\nously opined that this provision permits com pensation at a per diem\nrate o f V360 of $12,000, rather than payment at a greater rate so long as\nhis total compensation for the year does not exceed the $12,000 ceiling.\nLike \xc2\xa7543, \xc2\xa7 5 15(b) does not establish a minimum salary; service w ith\xc2\xad\nout compensation would thus for similar reasons be permissible.\nW hether additional payments may be made by his firm to supplement\nL \xe2\x80\x99s governm ent salary, and the extent to w hich com pensation reflecting\nhis or his partners\xe2\x80\x99 earnings unrelated to his governm ent service may be\nreceived by him to supplement his governm ent salary, depends on\nw hether L will qualify as a special governm ent employee within the\nterms o f \xc2\xa7 202(a) o f Title 18. T he term \xe2\x80\x9cspecial G overnm ent em ployee\xe2\x80\x9d\nis there defined to include \xe2\x80\x9can officer o r em ployee o f the executive or\nlegislative branch o f the United States G overnm ent, . . . w ho is re\xc2\xad\ntained, designated, appointed, or em ployed to perform , with or w ithout\ncompensation, for not to exceed one hundred and thirty days in any\nperiod o f three hundred and sixty-five days, tem porary duties either on\na full-time or interm ittent basis.\xe2\x80\x9d F or an individual to be appointed as a\nspecial governm ent employee, the D epartm ent must in good faith esti\xc2\xad\nmate in advance o f the appointm ent that he will serve for no m ore than\n130 days in the 365-day period beginning on the day o f his appoint\xc2\xad\nment. In estimating the num ber o f days to be served, a part o f a day\nmust be counted as a full day, and a Saturday, Sunday, or holiday on\nwhich duties are to be perform ed must be counted equally w ith a\nregular w ork day. Federal Personnel Manual, ch. 735, Appendix C. If\nan employee does, how ever, serve for m ore than 130 days in a 365-day\nperiod, he will nevertheless continue to be regarded as a special g o v \xc2\xad\nernm ent employee so long as the original estimate was made in good\nfaith. Id. Once an individual is appointed as a special governm ent\nemployee, the restrictions imposed by the conflict o f interest laws apply\neven on days he does not serve the governm ent. Id.\nSections 203 and 209 o f Title 18 limit the com pensation employees\nmay receive in addition to their governm ent salary. Section 209, w hich\nprohibits receipt o r paym ent o f any salary, contribution to or\n6\nSection 663(b) o f title 31 prohibits the acceptance o f \xe2\x80\x99\'v o lu n tary s e rv ic e /\xe2\x80\x99 T his prohibition w as not\nintended to preclude acceptance o f \xe2\x80\x9cgratuitous\xe2\x80\x9d services rendered in an official capacity under regular\nappointm ent otherw ise perm itted by law to be nonsalaried w here an agreem ent is reached p rio r to\nappointm ent that the em ployee is to serve w ithout com pensation. 30 Op. A tt\xe2\x80\x99y G en. SI (1913).\n\n443\n\n\x0csupplem entation o f salary as com pensation for an em ployee\xe2\x80\x99s services as\nan em ployee o f the Executive Branch, is expressly not applicable to\nspecial governm ent employees. 18 U.S.C. \xc2\xa7 209(c). Section 203 prohibits\nreceipt or paym ent o f any com pensation for services rendered or to be\nrendered either by a special governm ent em ployee currently employed\nin the Executive Branch or by \xe2\x80\x9canother\xe2\x80\x9d (such as his law partner) only\nin relation to a particular m atter involving a specific party or parties in\nw hich he has at any time participated personally and substantially as a\ngovernm ent em ployee o r w hich is pending in the departm ent in which\nhe is serving. M oreover, the D epartm ent-w ide ban applies only where\nhe has served in the D epartm ent for at least 61 days during the\nimmediately proceeding 365 days. A special governm ent employee\nw ould therefore be free to receive and to share in fees generated by his\npartners except as to a limited class o f m atters such as, for example,\nrepresentation in connection with a criminal investigation that has not\nyet resulted in an indictm ent and is therefore still pending in the\nD epartm ent. Section 203 does not, how ever, bar receipt o f fees in\nrelation to representation before the federal courts even though the\nm atter may incidentally be pending in the D epartm ent because o f the\nD epartm ent\xe2\x80\x99s role in the court proceeding.\nB roader restrictions on receipt o f outside com pensation w ould apply\nif L does not qualify as a special governm ent employee, i.e., if he\nw ould be a regular employee. If L w ere to serve w ithout com pensa\xc2\xad\ntion, \xc2\xa7209 would still be inapplicable. 18 U.S.C. \xc2\xa7 209(c). H owever,\n\xc2\xa7 203 w ould prohibit receipt o r paym ent o f com pensation for any serv\xc2\xad\nices rendered or to be rendered by another before any departm ent,\nagency, court-m artial, officer, civil, military or naval commission in\nrelation to any particular m atter in w hich the United States is a party\no r has a direct and substantial interest. L could not, therefore, share in\nfees for representational services rendered under such circumstances.\nW hile he could share in fees received by his partners for services\nrendered in co u rt,7 he could not him self act as agent or attorney for\nanyone in court in connection w ith any particular m atter in w hich the\nU nited States is a party o r has a substantial interest.8 Thus his income\nw ould be limited accordingly.9\nFinally, if L is a regular employee, but does receive compensation\nfrom the governm ent for his efforts, he w ould be subject both to the\n7\nH e could not, how ever, receive any gratuity, o r any share o f o r interest in any claim against the\nU nited States in consideration o f assistance in the prosecution for such claim. 18 U.S.C. \xc2\xa7205(1).\n* 18 U .S .C \xc2\xa7205(2).\n9\nD ep artm en t regulations also prohibit private professional practice by other than special go v ern \xc2\xad\nm ent em ployees. 28 C .F .R . 45.735-9(a) (1978). T his requirem ent has been interpreted to require\nregular governm ent em ployees to resign from private practice during their period o f governm ent\nservice. T h e A ssociate A tto rn ey G eneral may make exceptions to this requirem ent in unusual circum \xc2\xad\nstances. 28 C .F .R . 45.735(c) (1978). O utside em ploym ent that w ould interfere w ith the proper perform \xc2\xad\nance o f an em ployee\xe2\x80\x99s duties, create o r ap p ear to create a conflict o f interest, o r reflect adversely on\nthe D epartm ent o f Justice, is in any event barred. 28 C .F .R . 45.735-9(d) (1978).\n\n444\n\n\x0crestrictions imposed by \xc2\xa7 209 and those imposed by \xc2\xa7 203. He thus\ncould not receive supplemental compensation from his firm for per\xc2\xad\nforming his government job. And if he were to work for the govern\xc2\xad\nment on a full-time basis, he would probably be treated by the firm as\nhaving gone on a leave of absence from the firm and hence would be\nbarred altogether from sharing in firm profits unless under established\nfirm policy persons having such a status would be entitled to certain\ncompensation regardless of their efforts on behalf of the firm. If L as a\nregular employee were to work only part-time for the government, an\neven more knotty problem of accounting would be posed. To satisfy\nthe requirements of \xc2\xa7 209, his share in firm profits would have to be\nreduced to reflect his more limited participation in the firm\xe2\x80\x99s business;\nto satisfy \xc2\xa7 203, his share would have to be further reduced in light of\nhis inability to share in fees for representational services performed by\nanother as outlined above.10 Perhaps the most workable solution to this\nproblem would be for L to receive a salary reflecting the value of\nservices he would render to the firm while working on a part-time\nbasis. Any definite conclusion as to the compensation that might be\nreceived in these circumstances must, in any event, be deferred until\nmore specific facts are presented.\n3. Disqualification Pursuant to Section 208\nThe feasibility of your proposal may well ultimately turn on the\napplication of \xc2\xa7208 of Title 18 to the facts of each particular case.\nSection 208 requires an officer or employee (including a special govern\xc2\xad\nment employee) to disqualify himself from participating in decisions\nwith regard to particular matters where he, his spouse, minor child,\npartner, organization in which he is serving as officer, director, trustee,\npartner or employee or any person or organization with whom he is\nnegotiating or has any arrangement concerning prospective employ\xc2\xad\nment has a financial interest. So long as L is affiliated with his firm,11\nand the firm, through its representation of certain clients, has a financial\ninterest in decisions he might make in the course of his government\nservice, disqualification would be necessary unless a waiver could be\nobtained under \xc2\xa7 208(b).12 A waiver is available on an ad hoc basis\nwhere an employee receives in advance a written determination that\nthe interest is not so substantial as to be deemed likely to affect the\nintegrity of the services which the government may expect from that\nemployee. Decisions in the situation you have described would not,\n10 H e could, how ever, continue to participate in bona Tide pension, retirem ent, group life, health, or\naccident insurance, profit-sharing, stock bonus, o r o th er em ployee w elfare o r benefit plans. 18 U.S.C.\n\xc2\xa7 209(b).\n11 A leave o f absence is regarded as a continuation o f em ploym ent w ithin the term s o f \xc2\xa7 208.\nlz\xe2\x80\x9eThus, w here his law partn er perform s a significant am ount o f w ork on behalf o f client X, L\nw ould be required to refrain from participating in a decision that w ould significantly affect client X \xe2\x80\x99s\nbusiness.\n\n445\n\n\x0chowever, appear to fall within this de m inimus exception at least where\nclients of a major law firm are involved. Careful consideration would\ntherefore have to be given to the circumstances in which decisions by\nL in the course of his government employment would affect clients of\nhis firm, and thus, the financial interests of himself or his partners.\nAlthough \xc2\xa7 208 does not, in terms, prohibit an individual\xe2\x80\x99s appointment,\nif disqualification will frequently be required, the appointment may at\nthe outset be futile.\n4. Other Restrictions Under the Conflict of Interest Laws Applicable\nDuring Government Tenure\na. Restrictions on L. We have previously discussed the restrictions on\nreceipt of compensation and on participation in decisions affecting a\npersonal financial interest, and have briefly alluded to the prohibition\non certain activities of government employees imposed by \xc2\xa7 205. If L is\na special government employee who serves for at least 61 days, he will\nbe barred by \xc2\xa7 205 from acting as attorney or agent in relation to any\nparticular matter involving a specific party or parties in which he has at\nany time participated in the course of his government service, or which\nis pending in the department in which he is serving. He would not\notherwise be barred from acting as an attorney in court proceedings or\nin proceedings before other agencies. If he does not qualify as a special\ngovernment employee, he must refrain from acting as agent or attorney\nfor anyone before any department, agency, court, court-martial, officer\nor any civil, military or naval commission in connection with any\nparticular matter in which the United States is a party or has a direct\nand substantial interest.\nb. Restrictions on L \xe2\x80\x99s partners. L\xe2\x80\x99s partners are precluded from acting\nas agents or attorneys for anyone other than the United States in\nconnection with any judicial proceeding or other particular matter in\nwhich the United States is a party or has a direct and substantial\ninterest and in which L participates or has participated personally and\nsubstantially as a government employee, or which is under his official\nresponsibility.13 This bar is only effective during the period in which L\nserves as a government employee. Thus, if L remains affiliated with his\nfirm, the firm may not, during his tenure with the government, partici\xc2\xad\npate as attorney for parties to the litigation in which L is involved. L \xe2\x80\x99s\npartners may not be charged on an imputation theory of wrongdoing in\nviolation of \xc2\xa7\xc2\xa7 203 and 205.14\n\n13 18 U .S.C. \xc2\xa7 207(c), redesignated as \xc2\xa7 207(g), effective July 1, 1979.\n14 T h e obligations d irectly imposed on L \xe2\x80\x99s p artners to observe the prohibitions against providing L\nw ith outside com pensation are discussed above.\n\n446\n\n\x0c5. Post-employment Restrictions\nWe assume that L, if appointed, will leave government service some\ntime after the July 1 effective date of the recent amendments to \xc2\xa7 207\nof Title 18. Unless he is designated for coverage under \xc2\xa7 207(d),15 he\nwould not be subject to the aiding and assisting bar of \xc2\xa7 207(b)(ii) and\nthe 1-year bar on contacts with the Department under \xc2\xa7 207(c). He\nwould, however, be permanently barred from acting as attorney or\nagent or otherwise representing any person other than the United States\nin making any communication, with intent to influence, to or in making\nany formal or informal appearance before any department or court in\nrelation to any particular matter in which the United States or the\nDistrict of Columbia is a party or has a direct and substantial interest\nand in which he participated personally and substantially. He would\nalso be prohibited for 2 years from acting as agent or attorney in\nsimilar circumstances with regard to matters under his official responsi\xc2\xad\nbility during the last year of his government service. In all likelihood,\nL\xe2\x80\x99s realm of official responsibility will be no broader than the matter in\nwhich he participates personally and substantially, and he will essen\xc2\xad\ntially be barred simply from switching sides in the case in which he\nserved as government counsel and in closely related cases.\nEthical obligations, rather than statutory requirements, are the source\nof the principal restrictions applicable to L\xe2\x80\x99s partners during the post\xc2\xad\nemployment period.\n6. Ethical Constraints\nWhile we will touch here briefly upon ethical constraints that may be\nof significance, you should be aware that a general discussion of this\nsort is of limited value and adequate guidance can only be given where\nreference can be made to particular facts and circumstances.\na.\nRestraints on L \xe2\x80\x99s service with the government. If L or his firm has\npreviously represented any of the defendants in the case he will be\ntrying for the government, he may be subject to a motion to disqualify\nbased on the American Bar Association\xe2\x80\x99s Canon 4 directive to preserve\nthe secrets and confidences of a client unless he could demonstrate that\nhe never received confidential information in a case substantially relat\xc2\xad\ned to the case he handles for the government. Even were the former\nclient to waive such disqualification, a question would be presented\nwhether the United States should accept such a waiver, particularly in\na case in which the United States is suing the client, since the govern\xc2\xad\n15\nPersons paid al Che executive level are autom atically covered. T hose paid at a rate o f G S -1 7 or\nabove w ho have significant decisionm aking o r supervisory responsibility and others in positions w ith\ncom parable decisionm aking authority are to be designated for coverage by the D irecto r o f the Office\no f G overnm ent Ethics.\n\n447\n\n\x0cment should be above reproach and should avoid even the appearance\nof impropriety.\nb.\nRestraints on L \'s firm following his service with the government.\nFollowing his government service, L would be obliged, pursuant to\nD R 9 - 101(B) of the ABA Code of Professional Responsibility, to de\xc2\xad\ncline private employment in a matter in which he had substantial\nresponsibility while he was a public employee. His disqualification\nwould also be imputed to his firm pursuant to DR 5 - 105(D) of the\nABA Code of Professional Responsibility. This Department has taken\nthe position, approved in ABA Formal Opinion 342, that the disqualifi\xc2\xad\ncation of a firm may be waived by the government whenever effective\nscreening measures by the firm will effectively isolate the lawyer who\nis personally barred from participating in the particular matter and\nsharing in the fees attributable to it, so long as there is no appearance of\nsignificant impropriety affecting the interests of the government.16\n7. Conclusions\nThe above discussion has necessarily been rather general in nature.\nShould you determine that as a policy matter appointment of L would\nbe appropriate, a more detailed review of the conflict of interest prob\xc2\xad\nlems likely to be presented would certainly be advisable. For present\npurposes, however, the following conclusions are perhaps the most\nsignificant.\na. L could be appointed as a Special Assistant United States Attorney\nto be paid at a per diem rate of up to $182. If he is appointed as a\nspecial government employee or serves without compensation, his firm\nmay supplement his salary.\nb. For L to qualify as a special government employee the Depart\xc2\xad\nment would be required to estimate in good faith that he would serve\nthe government on no more than 130 out of the 365 consecutive days\nbeginning with the day of his appointment. Days on which only part of\nhis time was devoted to government service would count as days\nworked for purposes of this estimate.\nc. Unless L qualifies as a special government employee, he may as a\nregular employee be required significantly to limit his activities in\nprivate practice pursuant to 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205.\nd. Depending on the facts of the case on which L will be working\nand the clients of the firm with which he is affiliated, L may be\nseriously handicapped in his performance of his governmental duties\nbecause of his obligation under \xc2\xa7 208 to refrain from participating in\ndecisions with regard to a matter in which he or his partners have a\nfinancial interest or in which his law firm has a financial interest\n16 T h e cu rren tly pending proposal for revision o f the D istrict o f C olum bia Bar\xe2\x80\x99s C ode o f Profes\xc2\xad\nsional Responsibility also addresses this question.\n\n448\n\n\x0cbecause of it representation of a party in the matter. If so, he should\nprobably not be appointed.\ne. L may not subsequently serve as agent or attorney in a particular\nmatter in which he personally and substantially participated while in\nthe government.\nf. During L\xe2\x80\x99s tenure with the government, L \xe2\x80\x99s partners are barred\nfrom serving as attorneys in a particular matter in which L participates\npersonally and substantially. Following his return to private practice,\ntheir obligations would be ethical in nature.\nL arry\n\nA. H a m m o n d\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n449\n\n\x0c'


b"January 16, 1979\n\n79-3\n\nMEMORANDUM OPINION FOR THE\nASSISTANT DIRECTOR, CRIMINAL\nINVESTIGATIVE DIVISION, FEDERAL\nBUREAU OF INVESTIGATION\nPrivacy Act (5 U.S.C. \xc2\xa7 552a(c))\xe2\x80\x94Federal Bureau\nof Investigation\xe2\x80\x94Transmission of Information\nCollected by FBI to State or Local Law\nEnforcement Agencies\n\nThis is in response to your request for our opinion whether the Federal\nBureau of Investigation\xe2\x80\x99s (FBI\xe2\x80\x99s) disclosure to a local or State law enforce\xc2\xad\nment agency of personal information obtained from another law enforce\xc2\xad\nment agency would be subject to the accounting requirements of the\nPrivacy Act, 5 U.S.C. \xc2\xa7 552a(c). This memorandum will address not only\nthis question, but also the question whether the Privacy Act permits these\ndisclosures at all.\nAs we have previously advised you, the FBI may legitimately acquire in\xc2\xad\nformation from one State or local agency and pass it to a different State or\nlocal agency. See 28 U.S.C. \xc2\xa7 534(a). We understand that the FBI\xe2\x80\x99s cur\xc2\xad\nrent practice is to retain a copy of the transferred records for 6 months in\nthe field office that handled the liaison work. The copies of the documents\nare kept in one file jacket; they are not indexed, but are retrievable by the\nindividual\xe2\x80\x99s name.\nWe believe that under the FBI\xe2\x80\x99s current practices, the handling and\ntransfer of the documents in question would be subject to the require\xc2\xad\nments of the Privacy Act. This Act generally applies to a \xe2\x80\x9c system of\nrecords,\xe2\x80\x9d defined in the Act as\na group of any records under the control of any agency from\nwhich information is retrieved by the name of the individual or\nby some identifying number, symbol, or other identifying par\xc2\xad\nticular assigned to the individual. [5 U.S.C. \xc2\xa7 552a(5).]\nSince the documents in question appear to constitute a \xe2\x80\x9c group of\nrecords,\xe2\x80\x9d under the control of the FBI, and may be retrieved by resort\n12\n\n\x0cto the use of an individual\xe2\x80\x99s name, they would seem to come within this\ndefinition' and hence within the general requirements of the Privacy Act.\nBefore addressing your inquiry whether an accounting of the disclosure\nof such records is required under the Privacy Act, we believe it is first\nnecessary to determine whether the Act allows a disclosure of these records\nat all. The Act generally prohibits Federal agencies from disclosing any in\xc2\xad\nformation from a system of records without the consent of the subject in\xc2\xad\ndividual, unless the disclosure falls within a specific exception.2 5 U.S.C.\n\xc2\xa7 552a(b). The only relevant exception would be a disclosure \xe2\x80\x9c for a\nroutine use.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552a(b)(3). Federal agencies may use this excep\xc2\xad\ntion, however, only if the statutory definition of a \xe2\x80\x9c routine use\xe2\x80\x9d has been\nsatisfied, see 5 U.S.C. \xc2\xa7 552a(a)(7), and the procedural requirements for\ndelineating and establishing a routine use are met. 5 U.S.C.\n\xc2\xa7 552a(e)(4)(D) and (e)(l 1); Privacy Act Guidelines, 40 F.R. 28949, 28954\n(1975).\nWe believe that disclosure in this situation would satisfy the definition\nof a \xe2\x80\x9c routine use.\xe2\x80\x9d That term is defined as \xe2\x80\x9c the use of such record for a\npurpose which is compatible with the purpose for which it is collected,\xe2\x80\x9d\nand the records in question are collected by the FBI for the purpose of dis\xc2\xad\nclosing them to the pertinent State or local agency. However, we believe\nthat a serious legal question exists whether the FBI has established a\n\xe2\x80\x9c routine use\xe2\x80\x9d under the procedural requirements of the Act. Federal\nagencies that maintain a system of records are required to:\n* * \xe2\x80\x98 Publish in the Federal Register at least annually a notice of\nthe existence and character of the system of records, which notice\nshall include\xe2\x80\x94\n(A) the name and location of the system;\n(B) the categories of individuals on whom records are main\xc2\xad\ntained in the system;\n(C) the categories of records maintained in the system;\n(D) each routine use of the records contained in the system,\nincluding the categories of users and the purpose of such use.\n* * * * * * *\n\n* * *At least 30 days prior to publication of information under\nparagraph [4](D) of this subsection, publish in the Federal\nRegister notice of any new use or intended use of the information\n\n1 While the records appear to be maintained only on an informal and temporary basis, the\nfact that the records are maintained in a file available to all for a period of 6 months\nprecludes any determination on our part that the records do not come within the definition of\na \xe2\x80\x9c system of records.\xe2\x80\x9d\n2 Although the Privacy Act does not define the term \xe2\x80\x9c disclosure,\xe2\x80\x9d it seems clear to us that,\nsince the FBI\xe2\x80\x99s transmittal of the records to the State or local agency would impart to that\nagency information \xe2\x80\x9c which in itself has meaning and which was previously unknown to the\n[agency] to whom it is imparted,\xe2\x80\x9d Harper v. United States, 423 F. Supp. 192, 197 (D.S.C.\n1976), the FBI would be \xe2\x80\x9c disclosing\xe2\x80\x9d information within the meaning of the Act.\n\n13\n\n\x0cin the system, and provide an opportunity for interested persons\nto submit written data, views, or arguments to the agency. [5\nU.S.C. \xc2\xa7 552a(e)(4)(A)-(D), e(l 1).]\nThe delineation of the FBI central records system, 43 F.R. 44683 (1978),\nthe only system which, as we are informed, is relevant at all to this type of\ninformation, contains no indication that the FBI, in the course of\nfacilitating State or local investigations, maintains files of information on\nthose who are the subject of those investigations.3 Even though this system\nof records provides for a broad routine use,4 we do not think that this\nbroad provision can apply to records that are not encompassed in the\ndescription of the records in the system. Since no routine use has been\nestablished, and since no other exception would allow disclosure, it would\nappear to us that disclosure is prohibited by the Privacy Act.\nThe underlying purpose of these provisions support our conclusion.\nCongress intended the requirements of disclosure set forth above to enable\nindividuals to determine whether Federal agencies hold information on\nthem, H. Rept. 1416, 93rd Cong., 2d sess. 2, 15 (1974). Also, the aim was\nto inform the public of the proposed uses of the information. Id. at 15;\nPrivacy Act Guidelines, 40 F.R. 28949, 28966 (1975). The failure to iden\xc2\xad\ntify the information in question in any system of records undermines both\nof these goals, because the public would have no knowledge of the fact\nthat the information is stored or of the uses to which it is put. Since Con\xc2\xad\ngress intended that the \xe2\x80\x9c routine use\xe2\x80\x9d exception would apply only if such\nconditions were met, H. Rept. 1416, 93d Cong., 2d sess. 16 (1974), we do\nnot believe that this exception may justify a transfer of the pertinent\ninformation.\nWe suggest several ways to alleviate the problem. The first would be to\nidentify these records in the FBI Central Records System so that the\nroutine use provision for that system could apply to these records.\nAnother solution would be avoiding a \xe2\x80\x9c system of records\xe2\x80\x9d format of\norganizing the information transferred to the States or localities. This\ncould be done, first, by not retaining any copies of the information; in this\nway there would be no file of records, and hence no \xe2\x80\x9c system of records\xe2\x80\x9d\nwould exist, and therefore the Privacy Act would not apply.5 A simpler\nway may be not to handle the records at all, and let the information be\ntransferred directly from one State agency to another.\nThis question whether the accounting requirements of the Privacy Act\napply to transfers under the suggested plans would depend on which plan\n\n\xe2\x80\x99 The reference to \xe2\x80\x9c Domestic Police Cooperation,\xe2\x80\x9d 43 F.R. 44684, does not, in our view,\nindicate that the FBI maintains such files.\n4 \xe2\x80\x9c Information from these files is disseminated to appropriate Federal, State, local and\nforeign agencies where the right and need to have access to this information exists.\xe2\x80\x9d 43 F.R.\n44693 (1978).\n\xe2\x80\x99 The definition o f \xe2\x80\x9c system o f records\xe2\x80\x9d refers to \xe2\x80\x9c a group of any records\xe2\x80\x9d [emphasis\nadded], and this would clearly suggest that a single record does not by itself constitute a\nsystem of records.\n\n14\n\n\x0cis adopted. If the FBI continues to maintain these files in a system of\nrecords, the accounting requirements in 5 U.S.C. \xc2\xa7 552a(c) would apply to\na disclosure of any record contained in that system. Since 5 U.S.C.\n\xc2\xa7 552a(c) applies only to a \xe2\x80\x9c system of records,\xe2\x80\x9d however, the re\xc2\xad\nquirements of that section would not apply if the FBI handles the informa\xc2\xad\ntion so as not to create a system of records.6\nM a ry C. L a w to n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n6 It is to be noted that, pursuant to this memorandum the FBI published in the Federal\nRegister (44 F.R. 58920 (1979)) a modified system notice for its central records system. The\nFBI described its temporary maintenance of records relevant to the domestic police coopera\xc2\xad\ntion program.\n\n\x0c"


b'Cuban Obligation to Accept Returning Nationals\nU n d e r c u sto m a ry in tern atio n a l law , o n e sta te h as a d u ty to a n o th e r sta te to a c c e p t an y o f\nits o w n natio n als w h o h av e been expelled from th e o th e r state. T h is d u ty b etw een\nstates to a cce p t re tu rn in g natio n als is rein fo rced by a n u m b er o f in te rn a tio n a l in stru \xc2\xad\nm en ts u n d e r w h ic h in d iv id u als h av e a rig h t to re tu rn to th e ir o w n c o u n try .\nC u b a \xe2\x80\x99s o b lig atio n to a c c e p t its re tu rn in g natio n als is intensified by e v id e n c e th at it\nv io lated in tern atio n al law in exp ellin g them in th e first place.\n\nJune 6, 1980\nMEMORANDUM OPINION FOR T H E ATTORNEY G EN ER A L\nThis responds to your request for our views, on an urgent basis, on\nCuba\xe2\x80\x99s obligation to accept the return of Cuban nationals who have\nbeen excluded from the United States.\nOur examination of authorities indicates that a case can be made that\nCuba has a duty to take any of its nationals that we may expel. A\nleading international law treatise states the obligation quite clearly:\nThe duty [of the State] is that of receiving on its territory\nsuch of its citizens as are not allowed to remain on the\nterritory of other States. Since no State is obliged by the\nLaw of Nations to allow foreigners to remain within its\nboundaries, it may, for many reasons, happen that certain\nindividuals are expelled from all foreign countries. The\nhome State of expelled persons cannot refuse to receive\nthem on the home territory, the expelling States having a\nright to insist upon this.\n1 Oppenheim, International Law \xc2\xa7 294 (Lauterpacht ed. 1948).\nThis duty between states is reinforced by a number of international\ninstruments adopted in recent years concerned with the rights of indi\xc2\xad\nviduals.\nIn 1948 the United Nations faced this question when the General\nAssembly adopted, without dissent,1 the Universal Declaration of\nHuman Rights. Article 13(2) provides:\nEveryone has the right to leave any country, including\nhis own, and to return to his country.\nG.A. Res. 217A(III), 1948-49 U.N.Y.B: 535-37.\n1 Cuba w as a U.N. m em ber at that time.\n\n677\n\n\x0cAlthough the Declaration is not a binding treaty, it has frequently been\ncited as a source of customary international law.\nSimilarly, two major human rights treaties provide that a national\ncannot be deprived of the right to enter his own country, the American\nConvention on Human Rights \xe2\x80\x9cPact of San Jose, Costa Rica,\xe2\x80\x9d Art.\n22.5 2 and the International Covenant on Civil and Political Rights,\nArt. 12.4.3 Cuba is not a party to either; President Carter has signed\nboth and sent them to the Senate but the United States is not a party.\nEx. E, 95th Cong., 2d Sess., Ex. F, 95th Cong., 2d Sess., Feb. 28, 1978.\nThe treaties are both in force, however, and have been ratified by a\nsignificant number of countries. In such a situation it can be argued that\nthe right to return to a national\xe2\x80\x99s own country has been established by\ncustomary international law even as to non-parties. Cf. The Paquete\nHabana, 175 U.S. 677 (1900).\nAnother treaty of possible relevance is the International Convention\non the Elimination of All Forms of Racial Discrimination (Ex. C, 95th\nCong., 2d Sess.). Article 5 provides that parties undertake to eliminate\nracial discrimination in all its forms\nand to guarantee the right of everyone, without distinc\xc2\xad\ntion as to race, colour, or national or ethnic origin, to\nequality before the law, notably in the enjoyment of the\nfollowing rights:\n*\n\n*\n\n*\n\n*\n\n*\n\nThe right to leave any country, including one\xe2\x80\x99s own,\nand to return to one\xe2\x80\x99s country.\nCuba became a party to this treaty in 1972. President Carter signed it\nbut the Senate has not approved it. One problem in citing this provision\nis that the Administration has taken the position that this obligation is\nnot primarily to protect the rights included as such \xe2\x80\x9cbut rather to\nassure equality and nondiscrimination in the enjoyment of those rights.\xe2\x80\x9d\nLetter of Submittal to the President from Warren Christopher, sent to\nSenate with Ex. C, 95th Cong., 2d Sess. at VII. Thus, it does not\nappear that Cuba would violate this treaty unless it discriminated on\nracial and ethnic grounds in expulsion and acceptance of the return of\nnationals.\nThe obligation of Cuba to accept its nationals is intensified by evi\xc2\xad\ndence that it violated international law in expelling nationals. There is\nevidence that some of the persons leaving Cuba, and whom we wish\ndeported, were forced out of Cuba in the first place. The American\n2 \xe2\x80\x9c N o one can be expelled from the territo ry o f the State o f w hich he is a national o r be deprived\no f the right to en ter it.\xe2\x80\x9d\n3 H andbook o f Existing Rules Pertaining to H um an R ights in the Inter-A m erican System, 29 (1983)\n(O .A .S. Inter-A m erican Com m ission on H um an Rights). \xe2\x80\x9c N o one shall be arbitrarily deprived\no f the right to en ter his ow n c o u n try .\xe2\x80\x9d Official R eco rd s o f the G eneral Assem bly, 21st Sess.,\nSupp. No. 16, 52.\n\n678\n\n\x0cConvention, supra (Art. 22(5)), provides that no one can be expelled\nfrom the state of which he is a national, as does the American Declara\xc2\xad\ntion of the Rights and Duties of Man, Art. VIII. The Declaration is\nenforceable by the Organization of American States (OAS) Human\nRights Commission, which is given its status under the OAS Charter.\nSee T. Buergenthal, The Revised OAS Charter and the Protection o f\nHuman Rights, 69 Am. J. Int\xe2\x80\x99l L. 828 (1975). Despite Cuba\xe2\x80\x99s suspension\nfrom OAS activities, it is still a member and the United States has taken\nthe position that Cuba is still subject to human rights obligations.\nThe human rights instruments discussed are basically for the protec\xc2\xad\ntion of the individual rather than other states. All of them recognize the\npossibility, however, that states may complain of violations against\npersons who are not its nationals.\nJ o h n M. H a r m o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n679\n\n\x0c'


b'Authority of the Comptroller General to Appoint an Acting\nComptroller General\nT h e C o m p tro lle r G e n e ra l is a u th o riz e d to d esig n ate an em p lo y ee o f th e G e n e ra l A c \xc2\xad\nco u n tin g O ffice to a ct as C o m p tro lle r G e n e ra l in his absence, e v e n if the O ffice o f\nD e p u ty C o m p tro lle r G e n e ra l is v acant.\nA c tin g h eads o f ag en cies h a v e p o w e rs th at are c o m m e n su ra te w ith th o se o f a g e n c y heads\nw h o h a v e b een co n firm ed b y th e S enate.\n\nJune 13, 1980\nM EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL,\nD E PA R TM EN T O F TH E TREASURY\nThis responds to your inquiry whether the Comptroller General may\ndesignate an employee of the General Accounting Office (GAO) to act\nas Comptroller General during his absence.1 In particular, you have\nasked whether a GAO employee may be designated to serve as Comp\xc2\xad\ntroller General for purposes of action taken by the Chrysler Corpora\xc2\xad\ntion Loan Guarantee Board, of which the Comptroller General is a\nmember.\nThe core issue here is whether the Comptroller General may desig\xc2\xad\nnate an employee of the General Accounting Office to act as Comptrol\xc2\xad\nler General pursuant to 31 U.S.C. \xc2\xa7 43a, which provides:\nThe Comptroller General shall designate an employee of\nthe General Accounting Office to act as Comptroller\nGeneral during the absence or incapacity o f the Comptroller\nGeneral and the Deputy Comptroller General, or during a\nvacancy in both o f such offices. (Emphasis added.)\n\nIt might be argued that the italicized language signals Congress\xe2\x80\x99 intent\nonly to authorize the designation of an Acting Comptroller General in\ntwo situations: when both the Comptroller General and Deputy Comp\xc2\xad\ntroller General are absent or incapacitated, or when both offices are\nvacant. On this reading, the provision would not cover the present\ncase, in which the Comptroller General is absent and the office of\nDeputy Comptroller General is vacant.\n1\nYou have m ade this inquiry in your capacity as G eneral Counsel to the C hrysler C orporation\nLoan G u aran tee Board, established pursuant to Pub. L. No. 96\xe2\x80\x94185, \xc2\xa7 3 , 93 Stat. 1324, 15 U.S.C.\n\xc2\xa7\xc2\xa7 1861 et seq.\n\n690\n\n\x0cHowever, such a narrow interpretation ignores the well-established\nprinciple of statutory construction that literal interpretations of statutes\nare not to be favored at the expense of the statute\xe2\x80\x99s evident purpose and\nhistory. See, e.g., Train v. Colorado Public Interest Research Group, Inc.,\n426 U.S. 1, 9-10 (1976); United States v. Public Utilities Commission. 345\nU.S. 295, 315 (1953); Church o f the Holy Trinity v. United States, 143\nU.S. 457, 459 (1892). The evident aim of 31 U.S.C. \xc2\xa7 43a is to provide a\nmechanism whereby an Acting Comptroller General may be designated\nwhen the Comptroller General and Deputy Comptroller General are\nunavailable to perform the Comptroller General\xe2\x80\x99s duties. This purpose\nis not served by distinguishing between situations in which the Comp\xc2\xad\ntroller General and Deputy Comptroller General are both either absent\nor incapacitated or in which both offices are vacant, on the one hand,\nand situations in which one of the officers is absent or incapacitated and\nthe other office is vacant, on the other hand.\nFurthermore, the legislative history confirms that Congress did not\nintend to so limit the provision\xe2\x80\x99s application. The provision\xe2\x80\x94enacted as\npart of the Independent Offices Appropriation Act of 1945, June 27,\n1944, ch. 286, Title I, 58 Stat. 371\xe2\x80\x94was introduced as a floor amend\xc2\xad\nment at the urging of the Comptroller General. See 90 Cong. Rec.\n3069-70 (1944). The clearest statement of its purpose appears in the\nComptroller General\xe2\x80\x99s letter proposing it, which states in pertinent part:\nThe need for legislation of the character here proposed\nis apparent in the recent history of the General Account\xc2\xad\ning Office. During the period from July 1, 1936, to April\n10, 1939, and for a considerable period in 1940, the office\nof Comptroller General was vacant. The then Assistant\nComptroller General [now the Deputy Comptroller Gen\xc2\xad\neral 2] acted as Comptroller General, pursuant to law, but\nthere was no other officer specifically authorized by law\nso to act in the event o f his absence or incapacity or in the\nevent he had resigned or retired or his term had ended. . . .\n(Emphasis added.)3\nThe provision thus was designed specifically to cover a situation in\nwhich the office of the Comptroller General was vacant and it was\nfeared that the Assistant (now Deputy) Comptroller General might\nbecome absent or incapacitated or that he might resign or retire. It was\nplainly not intended to be confined to situations in which both officers\nwere either incapacitated or absent, or in which both offices were\nvacant.4\n2 T he Assistant C om ptroller G eneral was designated D eputy C o m ptroller G eneral pursuant to\nPub. L. No. 92-51, 85 Stat. 125, 143 (1971).\n3 90 C ong. Rec. 3070 (1944).\n4 See also 90 C ong. Rec. 5171 (1944).\n\n691\n\n\x0cWe therefore conclude that 31 U.S.C. \xc2\xa7 43a authorizes the Comptrol\xc2\xad\nler General, in present circumstances, to designate an employee of the\nG A O to act as Comptroller General during his absence. It is established\nthat acting heads of agencies have powers that are commensurate with\nthose of agency heads who have been confirmed by the Senate. See,\ne.g., Ryan v. United States, 136 U.S. 68, 81 (1890); Marsh v. Nichols,\nShepard & Co., 128 U.S. 605, 615 (1888); Shafer v. United States, 229\nF.2d 124, 129 (4th Cir. 1956); Anderson v. P.W. Madsen Investment Co.,\n72 F.2d 768, 770-71 (10th Cir. 1934); Aderhold v. Menefee, 67 F.2d 345,\n346 (5th Cir. 1933); cf. Keyser v. Hitz, 133 U.S. 138, 145-46 (1890).\nThere is no indication in the language of the Chrysler Corporation\nLoan Guarantee Act of 1979, Pub. L. No. 96-185, 93 Stat. 1324, 15\nU.S.C. \xc2\xa7 1861 et seq. (1980), that Congress intended to create an excep\xc2\xad\ntion to this fundamental precept in the context of the Chrysler Corpora\xc2\xad\ntion Loan Guarantee Board.5 Accordingly, we believe that the Acting\nComptroller General is legally authorized to serve as Comptroller Gen\xc2\xad\neral in the context of actions taken by that Board during the Comptrol\xc2\xad\nler General\xe2\x80\x99s absence.6\nL arry A. H am m ond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n*\nSection 3 o f the A ct establishes the C h ry sler C orp o ration Loan G u arantee Board, "w hich shall\nconsist o f the Secretary o f the T reasu ry w ho shall be the C hairperson o f the Board, the C hairm an of\nthe Board o f G o v ern o rs o f the Federal R eserve System, and the C om ptroller G eneral o f ihe United\nStates.\xe2\x80\x9d IS U.S.C. \xc2\xa7 1862. T his provision contains no limiting language indicating, for instance, that the\nC o m p tro ller G eneral o r o th e r Board m em bers must personally appear at Board meetings. N o other\nsection o f the A ct w ould ap p ear to impose any such requirem ent.\nN or are w e aw are o f any such indication in the legislative history. T h e provision establishing a\nthree-m em ber C hrysler C orporation Loan G u aran tee Board originated in the Senate bill, S. 2094, and\nits purpose is thus described in the R eport o f the Senate C om m ittee on Banking, Housing, and Urban\nAfTairs, 96th C ong., 1st Sess. 17 (1979):\nT h e A dm inistration bill w ould have had the Secretary o f the T reasury be the sole\nadm inistrator o f the loan guarantees for C hrysler. T h e C om m ittee believes that a threeperson board ofTers m ore balance and that the addition o f tw o mem bers w ho are\nindependent o f the Executive, the Federal R eserve Board C hairm an and the C om ptrol\xc2\xad\nler G eneral, will enable the Board to make tough decisions on the m erits o f the issues\nw ithout undue pressure from political considerations.\nT he aim o f providing for a three-person Board in o rd e r to establish balance and independence would\nnot be undercut by the participation, pursuant to lawful designation, o f an A cting C om ptroller\nG eneral rath er than the C o m p tro ller G eneral d uring the latter\'s absence. See also H.R. Rep. No. 96730, 96th Cong., 1st Sess. 17 (1979) (confirm ing that the conference adopted the Senate provision\nregarding m em bership o f the board).\n6\nW e have confirm ed that o u r conclusion is consistent w ith the practice and view s o f the G eneral\nA ccounting Office.\nfA \'J\n\n\x0c'


b"Removal of Presidentially Appointed Regents of the\nUniformed Services University of the Health Sciences\nThere is no statutory lim itation on the President's pow er to remove his appointees to the Board of\nRegents of the U niform ed Services University of the Health Sciences, and any such lim itation\nwould in any event be unconstitutional in light of the purely executive functions perform ed by\nthese individuals.\n\nJanuary 18, 1982\nM EM ORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis responds to your inquiry as to whether the President has the power to\nremove the persons appointed by him to the Uniformed Services University of\nHealth Sciences pursuant to 10 U .S .C . \xc2\xa7 2113(a)(1) (1976). It is our conclusion\nthat the President has this power.\nThe Uniformed Services University of Health Sciences (University), autho\xc2\xad\nrized to grant appropriate advanced degrees, has been established by 10 U .S.C .\n\xc2\xa7 2112. The business of the University is conducted by a Board o f Regents\n(Board). 10 U .S .C . \xc2\xa7 2 1 13(a). The Board consists of nine persons appointed by\nthe President with the advice and consent of the Senate (10 U .S.C . \xc2\xa7 2 1 13(a)( 1)),\nand several ex officio members. 10 U .S .C . \xc2\xa7 2113(a)(2)-(4), (d). The members\nof the Board other than the ex officio members, i.e ., the persons appointed to the\nBoard by the President pursuant to \xc2\xa7 2 1 13(a)(1), have staggered six-year terms;\nmembers appointed to fill a vacancy are appointed for the remainder of the\nunexpired term. \xc2\xa7 2113(b).\nWe believe the President has the power to remove the presidentially appointed\nmembers of the Board for several reasons. First, according to the basic rule of\nconstruction announced by James Madison during the first session of the First\nCongress, \xe2\x80\x9c the power of removal result[s] by a natural implication from the\npower of appointment.\xe2\x80\x9d 1 Ann. Cong. 496. The courts have consistently upheld\nthe general validity of that rule. M atter o f Hennen, 38 U .S. (13 Pet.) 2 3 0 ,2 5 9 -6 0\n(1839); Blake v. U nited States, 103 U.S. 227, 231 (1880); M yers v. U nited\nStates, 272 U.S. 52, 1 19 (1926).\nSecond, there is no indication in the statute that Congress intended to limit the\nPresident\xe2\x80\x99s removal power. The provision that the presidential appointees to the\nBoard shall serve staggered six-year terms is not indicative of a congressional\nintent that they have the right to serve out their terms. It has been established\n81\n\n\x0csince P arson s v. U n ited States, 167 U .S. 324, 338 (1897), that a provision for a\nterm m erely m eans that the officer cannot serve beyond his term without reap\xc2\xad\npointm ent which would subject him to the scrutiny of the Senate. In other words,\na provision for a term is an act of limitation and not of a grant.\nT hird, assum ing, arguendo, that it were possible to find a congressional intent\nto lim it the P resident\xe2\x80\x99s removal power in the prem ises, such limitation would be\nclearly unconstitutional in view of the functions vested in the Board. It has been\nfirmly established that the President\xe2\x80\x99s power to remove purely executive officers\nfollows the pow er to appoint and cannot be limited by Congress. M yers v. U nited\nS tates, su pra. Congressional limitations on the power of the President to remove\nhis appointees have been upheld only in the cases of officers performing quasi\xc2\xad\njudicial o r quasi-legislative functions. H um phrey\xe2\x80\x99s Executor v. U nited States,\n295 U .S . 602 (1935); W iener v. U nited States, 357 U .S. 349 (1958). The\noperation of a University, however, is a purely executive function, and cannot\nu n d e r any circum stances be considered to have a quasi-judicial or q u asi\xc2\xad\nlegislative character.\nL a r r y L . S im m s\n\nD epu ty A ssistan t A ttorn ey G eneral\nOffice c f L egal Counsel\n\n82\n\n\x0c"


b'The Attorney General\xe2\x80\x99s Authority to Represent the Roosevelt\nCampobello International Park Commission\nUnder the international agreement creating the Roosevelt Campobello International Park\nCommission and its implementing legislation, the A ttorney General may provide free\nlegal representation to the Commission. However, he is under no obligation to do so,\nparticularly w here a conflict of interest would make questionable the appropriateness of\nsuch representation.\nT he A ttorney G eneral\xe2\x80\x99s statutory obligation to \xe2\x80\x9csupervise and control\xe2\x80\x9d litigation o f the\nCommission in courts of the United States does not require him to conduct such\nlitigation, or retain private counsel on behalf of the Commission, any more than it\nempowers him to control access by this international body to U.S. courts. It only\nmeans that when the A ttorney General does conduct or finance litigation of the\nCommission, he must retain supervision and control over it.\nIn cases w here the Commission is suing an agency of the United States, it is appropriate\nfor the Departm ent to refuse the Commission\xe2\x80\x99s request for representation. The Depart\xc2\xad\nment also may withdraw from representation o f the Commission that has already been\nundertaken, as long as such withdrawal is accomplished in accordance with applicable\nAmerican Bar Association standards.\n\nJuly 6, 1981\nM EM ORANDUM O PIN IO N FO R T H E ASSISTA N T ATTORNEY\nG E N E R A L , LAND A N D N A TU R A L RESOURCES D IV ISIO N\nThis responds to your request for an opinion clarifying the Attorney\nG eneral\xe2\x80\x99s authority and responsibility to provide legal representation to\nthe Roosevelt Campobello International Park Commission. You have\nexpressed special concern about pending and prospective litigation by\nthe Commission against the United States government. Our advice can\nbe summarized as follows:\n(1)\n\n(2)\n\nThe A ttorney General is under no legal obligation to\nconduct or finance new litigation brought by or against\nthe Commission.\nThe A ttorney General does have the authority, subject\nto his other responsibilities, to conduct or finance litiga\xc2\xad\ntion on behalf of the Commission.\n\n218\n\n\x0c(3)\n\n(4)\n\nThe Attorney General should not attempt to prevent\nthe Commission from using its own funds to sue the\nUnited States. However, the President may prevent the\ninitiation of such suits in the future by directing the\nUnited States members of the Commission to vote to\noppose suits against the United States.\nSubject to the terms of any binding contractual commit\xc2\xad\nments, the Department may withdraw from financing\nthe Commission\xe2\x80\x99s pending litigation against the United\nStates, but we recommend that it not do so without\ntaking reasonable steps to avoid prejudice to the Com\xc2\xad\nmission.\nDiscussion\n\nThe Roosevelt Campobello International Park Commission was es\xc2\xad\ntablished pursuant to an agreement between the United States and\nCanada to administer the estate once owned by President Franklin\nRoosevelt as an international park. Agreement Between the G overn\xc2\xad\nment of the United States of America and the Government of Canada\nRelating to the Establishment of the Roosevelt Campobello Interna\xc2\xad\ntional Park, Jan. 22, 1964, United States-Canada, 15 U.S.T. 1504,\nT.I.A.S. No. 5631 (1964) [hereinafter cited as Agreement]. The Agree\xc2\xad\nment provides that the Commission shall be composed of six members,\nthree Americans and three Canadians, and that the affirmative vote of\nat least two members from each country is required for any decision to\nbe taken by the Commission. Agreement, Art. 3, at 1505. It also\nprovides that the Commission shall have \xe2\x80\x9cjuridical personality and all\npowers and capacity necessary or appropriate for the purpose o f per\xc2\xad\nforming its functions\xe2\x80\x9d including the powers and capacity to \xe2\x80\x9csue or be\nsued in either Canada or the United States.\xe2\x80\x9d Agreement, Art. 2, at\n1505. In addition, the Agreement provides that the costs of operating\nand maintaining the Park shall be shared equally by the governments of\nthe United States and Canada Agreement, Art. 11, at 1507, and that\n\xe2\x80\x9carrangements\xe2\x80\x9d may be made with the competent agencies o f both\ngovernments for rendering, without reimbursement, such services as the\nCommission may request for the orderly development, maintenance and\noperation of the Park. Agreement, Art. 9, at 1507.\nThe legislation implementing the Agreement which was adopted by\nCongress reiterates the essence of the Agreement. 16 U.S.C. \xc2\xa7\xc2\xa7 11011113. Among other things, it provides that the American members of\nthe Commission shall be appointed by the President and hold office at\nhis pleasure. 16 U.S.C. \xc2\xa7 1104(a). T he \xe2\x80\x9cfunctions\xe2\x80\x9d of the Commission\nare to accept title to the estate, to take the measures necessary to\nrestore the property to its original condition, and \xe2\x80\x9cto administer\xe2\x80\x9d the\nPark \xe2\x80\x9cas a memorial.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 1102. In describing the powers of\n219\n\n\x0cthe Commission, the statute provides that the Commission shall have\n\xe2\x80\x9cjuridical personality and all powers and capacity necessary or appro\xc2\xad\npriate for the purpose o f performing its functions\xe2\x80\x9d including the power\nand capacity\nto sue or be sued, complain and defend, implead and be\nimpleaded, in any United States district court. In such\nsuits, the Attorney General shall supervise and control the\nlitigation.\n\n16 U.S.C. \xc2\xa7 1103(c) (emphasis added).1 The statute also enumerates the\nCommission\xe2\x80\x99s power\nto obtain without reimbursements, for use either in the\nUnited States or Canada, legal, engineering, architectural,\naccounting, financial, maintenance, and other services,\nw hether by assignment, detail, or otherwise, from compe\xc2\xad\ntent agencies in the United States or in Canada, by ar\xc2\xad\nrangements with such agencies.\n16 U.S.C. \xc2\xa7 11030)- I*1 recognition o f this government\xe2\x80\x99s responsibility to\nshare equally in the costs o f developing and operating the Park, the\nstatute also authorizes the appropriation of such sums as may be neces\xc2\xad\nsary to fulfill our obligations under the Agreement. 16 U.S.C. \xc2\xa7 1113.2\nObligation and authority to provide legal services. Both the Agreement\nand the United States legislation contemplate that the Commission may\nmake \xe2\x80\x9carrangements\xe2\x80\x9d w ith United States agencies for free services, and\nthe statute makes it plain that legal services are among the types of free\nservices contemplated. See 16 U.S.C. \xc2\xa7 1103(j). We do not believe that\nthe statute imposes an obligation on any agency of the United States to\nprovide free legal services to the Commission, particularly in litigation\nagainst the United States. Although we recognize an intention in these\nprovisions that government agencies cooperate with the Commission\nwhen feasible, we do not believe that \xc2\xa7 1103(j) or the Agreement\nshould be read to create an obligation for agencies of either govern\xc2\xad\nment to satisfy every request of the Commission.3 Rather, we read\nthese provisions as a grant of authority to government agencies to\ncooperate with the Commission and as an endorsement of such co\xc2\xad\n1 T he italicized language is a substantive addition to the parallel provision in the Agreement. The\nCanadian implementing legislation does not contain a similar provision requiring supervision or control\no f Commission litigation in Canada. Roosevelt Campobello International Park Commission Act, 1964,\nch. 19, 1964-65 Can. Stat. 135.\n2T here have been annual appropriations to the Department of the Interior for this purpose. See\nPub. L. No. 96-514, 94 Stat 2957; Pub. L No. 96-126, 93 Stat. 954; Pub. L. No. 95-465, 92 Stat. 1279;\nPub. L. No. 95-74, 91 Stat. 285; Pub. L. No. 94-373, 90 Stat. 1043; Pub. L. No. 94-165, 89 Stat. 977;\nPub. L. No. 93-120, 87 Stat. 429.\n3T he statement of C P. M ontgomery, Assistant Director, National Park Service, Department o f the\nInterior, before the Senate Foreign Relations Committee, supports our view that these provisions\nshould be read to authorize \xe2\x80\x9ccooperation\xe2\x80\x99* from United States agencies. See S. Rep No. 1097, 88th\nCong., 2d Sess., 9 (1964)\n\n220\n\n\x0coperation, whenever such agencies, in the exercise of their discretion,\nbelieve that such cooperation is lawful and otherwise appropriate.4\nSimilarly, we do not find an obligation to represent the Commission\nin the language of \xc2\xa7 1102(c) of the statute concerning the Attorney\nGeneral\xe2\x80\x99s supervision and control of Commission litigation. As we see\nit, the supervision and control of litigation is not necessarily the same as\nactually conducting the litigation. Although the two functions may be\nperformed by the same person or entity, this need not be the case. In\nthe private sector, for example, it is not uncommon for the general\ncounsel o f a corporation to supervise and control corporate litigation,\nwhile outside counsel actually conducts the litigation. In the govern\xc2\xad\nment context, the authority to conduct and to supervise litigation is\nseparately delineated, see 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519, although both functions\nmost frequently reside in the Department of Justice. There are situa\xc2\xad\ntions, however, where Congress has given another Department the\nauthority to conduct litigation, subject to the supervision and control of\nthe Attorney General. See, e.g., 42 U.S.C. \xc2\xa7\xc2\xa7 717l(i), 7192(c) (involving\nDepartment of Energy litigation). In light of this distinction, we are\npersuaded that Congress would have used different, and more explicit,\nlanguage in \xc2\xa7 1102(c) if it intended to require the Attorney General to\nconduct litigation or retain private counsel on behalf of the Commis\xc2\xad\nsion.\nHaving concluded that \xc2\xa7 1102(c) does not create an obligation to\nconduct litigation for the Commission, we must nonetheless ascribe\nsome intended meaning to the mandate to \xe2\x80\x9csupervise and control\xe2\x80\x9d the\nCommission\xe2\x80\x99s litigation. Reading broadly, the term could imply that the\nAttorney General may prevent the Commission from asserting particu\xc2\xad\nlar positions or that he may deny the Commission access to federal\ndistrict courts altogether.5 Such a construction, however, would give\nthis government more unilateral power than can be found in the A gree\xc2\xad\nment 6 and would tend to conflict with Article 2 of the Agreement\nwhich provides that the Commission shall have \xe2\x80\x9cjuridical personality\xe2\x80\x9d\nand be empowered to \xe2\x80\x9csue and be sued\xe2\x80\x9d in United States district\ncourts.\n4As we indicated in our October 10, 1978, opinion regarding the representation of Campobello, the\nAttorney General\'s authority to conduct litigation includes the authority to retain private counsel at\ngovernment expense when a conflict of interest prevents direct representation\n5We have not been asked to consider whether the particular litigation in which the Commission is\nnow engaged is \xe2\x80\x9c necessary or appropriate for the purpose of performing its functions." 16 U.S.C.\n\xc2\xa7 1103. O f course, this government may express its views on that question through its representatives\non the Commission.\n6 Under the Agreement, the power of one government to control the positions of the Commission\nlies in the exercise of its voting rights. See Article 3. Since the United States members of the\nCommission serve at the pleasure of the President, the President could prevent the problem of\nlitigation against the United States by directing the United States members to vote against the\ninitiation o f such suits. However, once begun, the United States vote would not be sufficient to\nterminate the litigation w ithout the support of two Canadian votes\n\n221\n\n\x0cIt is an established principle of construction that a statute will not be\nread to modify or abrogate obligations under an international agreement\nwithout a clear expression by Congress that such was its purpose. See\nCook v. United States, 288 U.S. 102 (1933). Thus, without a clear\nexpression by Congress that the United States enabling legislation was\nintended to modify the international Agreement by giving a single\nUnited States official the power to limit the Commission\xe2\x80\x99s access to the\nUnited States courts, w e would be disinclined to read \xc2\xa7 1103(c) to\nconfer that power. Since nothing in the enabling legislation or its\nlegislative history indicates such an intent,7 a more narrow construction\no f the term \xe2\x80\x9csupervise and control\xe2\x80\x9d seems appropriate.\nAs mentioned previously, Congress clearly anticipated that the Com\xc2\xad\nmission could arrange for free legal services from the Justice Depart\xc2\xad\nment. W e think that \xc2\xa7 1103 should be read to mean that when the\nUnited States government does provide representation for the Commis\xc2\xad\nsion in federal court, the Attorney General must maintain control of\nthat litigation. Supervision and control of the litigation in these circum\xc2\xad\nstances would be essential to maintain the integrity of the government\xe2\x80\x99s\nlegal position before the federal courts. Section 1103 may also be read\nto require that among federal agencies, only the Justice Department\nmay conduct litigation for the Commission.\nIn sum, we conclude that neither the international agreement nor the\nimplementing legislation require the Departm ent of Justice to provide\nlegal services to the Commission. In cases where the Commission is\nsuing an agency of the United States, it is especially appropriate for the\nD epartm ent to refuse the Commission\xe2\x80\x99s request for representation. Fur\xc2\xad\ntherm ore, in light of our conclusion that there is no underlying obliga\xc2\xad\ntion to provide representation, we believe that the Department also\nmay w ithdraw its personnel or funds from representation of the Com\xc2\xad\nmission that has already been undertaken. However, as discussed below,\nthe D epartm ent should ensure that any withdrawal is accomplished in\nan appropriate and reasonable manner.\nWithdrawal from litigation. The Justice Departm ent applies the Code\no f Professional Responsibility o f the American Bar Association (ABA\nCode) to its legal activities and personnel. See 28 C FR 45.735-l(b). The\nCode generally discourages lawyers from withdrawing from employ\xc2\xad\nm ent absent good cause. See ABA Code D R 2 - 110(C). We believe that\nthe D epartm ent can make a showing of good cause for withdrawal\nunder D R 2 -1 10(C)(6) at least with respect to Commission litigation\nthat involves the assertion of positions that are contrary to those of the\nUnited States, for which Congress has made no specific appropriation\nto retain private counsel. This position would be enhanced in cases\nw here the litigation may be arguably beyond the scope of the Commis\xc2\xad\n7 T he legislative history gives virtually no attention to the question of litigation authority or the\nextent o f the A ttorney General\xe2\x80\x99s mandate to \xe2\x80\x9csupervise and control\xe2\x80\x9d Commission litigation.\n\n222\n\n\x0csion\xe2\x80\x99s responsibilities. Although the ABA standards may not be applica\xc2\xad\nble to a situation where the Department wants to withdraw from\nfinancing rather than conducting Commission litigation, we would\nnonetheless advise you to use the good cause standard as a guide for\nyour conduct in this situation. Cf. ABA Code D R 5 - 107(B) (involving\nthe influence o f professional services by third parties who pay legal fees\non behalf of the client).\nShould you determine that there is good cause and that it is other\xc2\xad\nwise appropriate 8 to withdraw from representing the Commission in a\ngiven case, the ABA Code provides guidance on the manner of with\xc2\xad\ndrawal. D R 2 -1 10(A)(2) provides that\n[A] lawyer shall not withdraw from employment until he\nhas taken reasonable steps to avoid foreseeable prejudice\nto the rights of his client, including giving due notice to\nhis client, allowing time for employment o f other counsel,\ndelivering to the client all papers and property to which\nthe client is entitled, and complying with applicable laws\nand rules.\nWe are aware from the materials you provided that the Department\nhas entered into \xe2\x80\x9ccontracts\xe2\x80\x9d and exchanged other correspondence with\ncounsel retained on behalf of the Commission. It does not appear, from\nour quick review of these materials, that there could be any construc\xc2\xad\ntion of these \xe2\x80\x9ccontracts\xe2\x80\x9d that would bind the Department to pay the\nprivate lawyer beyond the monetary ceiling set for the particular\nmatter or the end of the fiscal year\xe2\x80\x94whichever occurs sooner. How\xc2\xad\never, we think that you are in a better position to assess the D epart\xc2\xad\nment\xe2\x80\x99s \xe2\x80\x9ccontractual\xe2\x80\x9d obligations as an initial matter. In any event, in\nlight of our other advice, you may not be prepared to withdraw\nfinancial support for the employment of private counsel in particular\ncases before the end of this fiscal year. Accordingly, we have not\naddressed the contractual issue at this time. If it becomes necessary to\ndo this in the future, we would be pleased to assist you.\nT h e o d o r e B. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n8 It may be advisable as a matter of policy to consult with the State Department and the National\nPark Service before undertaking a withdrawal from Commission litigation.\n\n223\n\n\x0c'