b'Authority of the State Department Office of Security to\nInvestigate Passport and Visa Fraud\nSection 209 o f the Foreign Service Act o f 1980 did not confer on the Inspector General o f the\nDepartm ent o f State the authority to investigate passport and visa fraud by persons uncon\xc2\xad\nnected with the Department o f State, and, accordingly, did not limit any inherent or derivative\nauthority the Secretary of State might have to investigate such fraud.\nSpecial Agents assigned to the Office o f Security of the Department o f State may conduct\nconsensual questioning o f individuals and may request that an individual consent to being\nquestioned elsewhere, provided that a reasonable person would understand that compliance\nwith such a request is voluntary.\n\nAugust 17, 1984\nM e m o r a n d u m O p in io n f o r t h e D e p u t y L e g a l A d v i s e r ,\nD e pa r t m e n t o f Sta t e\n\nThis responds to your request for our opinion on the following questions:\n1. Whether the Secretary\xe2\x80\x99s derivative authority to conduct\ninvestigations which might lead to criminal prosecution (using\nSpecial Agents not assigned to the Inspector General\xe2\x80\x99s Office)\nis in any way limited by the express statutory authority of the\nInspector General of the Department of State to conduct similar\ninvestigations.\n2. If any such limitations are present, what restrictions apply\nto the Secretary\xe2\x80\x99s independent authority to investigate visa and\npassport fraud through the Office of Security?\n3. Whether, and subject to what limitations, if any, Special\nAgents assigned to the Office of Security have legal authority to\napproach an individual suspected of engaging in visa or passport\nfraud and, after presenting their credentials, either request that\nthe individual answer questions on the spot or accompany them\nto another location for questioning.\nI. Background\nThe first question poses a very broad issue regarding congressional intent in\npassing the Foreign Service Act of 1980, 22 U.S.C. \xc2\xa7 3929 (FSA). Rather than\n175\n\n\x0caddress in a factual vacuum the many hypothetical instances in which the\nrelationship of the Inspector General\xe2\x80\x99s authority to that of the Secretary might\nbe examined, we believe that it is more appropriate to confine our examination\nto the specific factual situation described in your letter. Viewed in this light,\nyour first and second questions merge into a single question: whether the\npowers conferred upon the Inspector General by \xc2\xa7 209 of the FSA in any way\nlimit whatever \xe2\x80\x9cinherent authority\xe2\x80\x9d the Secretary may have to investigate\npassport and visa fraud. We understand the term \xe2\x80\x9cpassport and visa fraud\xe2\x80\x9d to\nrefer to criminal deceit in passport or visa acquisition by persons other than\nDepartment of State employees. In contrast, the term \xe2\x80\x9cpassport and visa mal\xc2\xad\nfeasance\xe2\x80\x9d describes malfeasance or criminal activity on the part of Department\nof State employees in obtaining passports or visas for themselves or others. The\nrelevant criminal prohibitions appear to reflect a similar distinction. Compare\n18 U.S.C. \xc2\xa7\xc2\xa7 1542-1546 (fraud and misuse of passports and visas) with id.\n\xc2\xa7 1541 (unauthorized issuance). In addressing your question, we have not\nattempted to analyze the source, validity, or independent scope of the Secretary\xe2\x80\x99s\nasserted authority to investigate passport and visa fraud. Rather, in accord with\nyour request, we have focused our inquiry upon the effect that \xc2\xa7 209 has on\nwhatever authority the Secretary may possess in this area.1\nII. Analysis\nA. The Foreign Service Act o f 1980\n\nWe begin our analysis of the question whether the Inspector General pos\xc2\xad\nsesses investigative authority in the area of passport and visa fraud by examin\xc2\xad\ning the FSA itself. Section 209 of the FSA, which established the Office of\nInspector General of the Foreign Service, centralized primary responsibility in\nthe Department of State\xe2\x80\x99s Inspector General for \xe2\x80\x9caudit\xe2\x80\x9d and \xe2\x80\x9cinvestigative\xe2\x80\x9d\nactivities of the Department. E.g., H.R. Rep. No. 992, 96th Cong., 2d Sess.\n(Part 1) 23 (1980). The FSA charged the Inspector General with responsibility\nfor examining:\n(1) whether financial transactions and accounts are properly\nconducted, maintained, and reported;\n(2) whether resources are being used and managed with the\nmaximum degree of efficiency, effectiveness, and economy;\n1 As a general rule, o f course, violations o f Title 18 o f the U nited States C ode are statutorily com m itted to\nthe investigative ju risd ic tio n o f the A ttorney G eneral. See 28 U .S.C \xc2\xa7 533(1) (A ttorney G eneral may appoint\nofficials to d etect crim es against United S tates); id. \xc2\xa7 533(3) (other investigations regarding official matters\nunder the control o f D epartm ent of Justice and D epartm ent o f State as may be directed by the Attorney\nG eneral). O th er departm ents and agencies m ay investigate federal crim es only \xe2\x80\x9cwhen investigative jurisdic\xc2\xad\ntion has been assigned by law to such departm ents and agencies.\xe2\x80\x9d Id. \xc2\xa7 533. In our view, 28 U.S.C. \xc2\xa7 533\nestablishes that C ongress cannot be deem ed to have intended to confer investigative authority other than by\nan exp ress provision to that effect in a statute. We exam ine the FSA, therefore, in order to determ ine whether\nC ongress therein co n ferred authority upon th e Inspector G eneral to investigate the federal crim es o f passport\nand visa fraud.\n\n176\n\n\x0c(3) whether the administration of activities and operations\nmeets the requirements of applicable laws and regulations and,\nspecifically, whether such administration is consistent with the\nrequirements of section 3905 of this title [the provision govern\xc2\xad\ning personnel practices];\n(4) whether there exist instances o f fraud or other serious\nproblems, abuses, or deficiencies and whether adequate steps\nfor detection, correction, and prevention have been taken; and\n(5) whether policy goals and objectives are being effectively\nachieved and whether the interests of the United States are being\naccurately and effectively represented.\n22 U.S.C. \xc2\xa7 3929(b) (emphasis added).\nThe FSA explicitly incorporated that portion of the Inspector General Act of\n1978, Pub. L. No. 95-452, 92 Stat. 1101 (1978 Act), which grants Inspectors\nGeneral of various agencies certain powers to carry out their statutory duties:\n(1) to have access to records, reports and other materials; (2) to make investiga\xc2\xad\ntions and reports; (3) to request assistance from other government agencies; (4)\nto subpoena documents, except from Federal agencies; (5) to have access to the\nagency head; (6) to appoint employees; (7) to obtain expert and consultant\nservices; and (8) to enter into contracts. 22 U.S.C. \xc2\xa7 3929(e)(1); see 5 U.S.C.\napp. \xc2\xa7 6(a) (Inspector General Act of 1978). In addition to those powers, the\nInspector General of the Foreign Service also has authority to request that\nDepartment of State employees be assigned to him, provided that all individu\xc2\xad\nals so assigned, as well as those appointed under item (6) above, \xe2\x80\x9cbe respon\xc2\xad\nsible solely to the Inspector General.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 3929(e)(2).\nB. Inspector G eneral\xe2\x80\x99s Authority to Investigate Passport and Visa Fraud\n\nOn its face, the FSA confers some type of investigative authority on the\nInspector General of the Foreign Service. What remains to be determined is\nwhether that authority encompasses the investigation of passport and visa\nfraud. Although one of the Inspector General\xe2\x80\x99s primary responsibilities is to\nconduct \xe2\x80\x9cinvestigations,\xe2\x80\x9d that term is not defined in the FSA. Most signifi\xc2\xad\ncantly for our purposes, the language of the FSA does not expressly indicate\nwhether the investigative authority which it conferred was limited to cases of\nmalfeasance committed by Department employees or whether that authority\nalso extended to crimes committed by non-employees. In seeking to resolve\nthis issue, we have identified several passages from the legislative history of\nthe FSA which are of assistance in determining Congress\xe2\x80\x99 intent. In addition,\nwe have examined the legislative history of the 1978 Act, after which the office\nof Inspector General of the Foreign Service was \xe2\x80\x9cpatterned.\xe2\x80\x9d See H.R. Rep. No.\n992 (Part 2), 96th Cong., 2d Sess. 22 (1980). The incorporation of part of the\n1978 Act into the FSA renders that part of the 1978 Act and its history an\n177\n\n\x0cappropriate source of further guidance in interpreting the FSA. See Engel v.\nDavenport, 271 U.S. 33, 38 (1926) (adoption of earlier statute by reference\nmakes it fully a part of later statute); 2A Sutherland Statutory Construction\n\xc2\xa751.08 (Sands 4th ed. 1973).\nThe bill considered by the Senate Committee that reported the 1978 Act\ndefined \xe2\x80\x9cinvestigation\xe2\x80\x9d to include \xe2\x80\x9cinquiries and examinations made to detect,\nor in response to allegations of, irregularities or violations of law, including\nmisconduct, malfeasance, misfeasance, nonfeasance, fraud, or criminal activ\xc2\xad\nity on the part of any employee, person, or firm directly or indirectly connected\nwith the establishment, or operations financed by the establishment.\xe2\x80\x9d E.g.,\nH.R. 8588, \xc2\xa711, 95th Cong., 2d Sess. (1978). This definition was later deleted\nfrom the bill before passage, not because it was inaccurate, but because\n\xe2\x80\x9c \xe2\x80\x98investigation\xe2\x80\x99 is a term with a generally well understood meaning.\xe2\x80\x9d 124\nCong. Rec. 30954 (1978) (statement of Sen. Eagleton). It is apparent that the\ndeletion was effected solely to remove surplus language, so that the deleted\ndefinition can be appropriately used as a guide to determine the scope of the\nauthority that Congress intended to confer upon Inspectors General in the 1978\nAct, and, by incorporation, upon the Inspector General of the Foreign Service\nin the FSA. See Diamond Crystal Salt Co. v. P. J. Ritter Co., 419 F.2d 147,148\n(1st Cir. 1969) (rule inferring legislature\xe2\x80\x99s disapproval of provision deleted\nfrom bill does not apply when omitted provision would have been surplusage).\nAlthough the language of the definition is ambiguous in some respects, to the\nextent that it requires a connection between the person committing the miscon\xc2\xad\nduct and the Department, it strongly suggests that Congress intended that the\nfocus of the Inspector General\xe2\x80\x99s authority be on the conduct of Department\nemployees or contractors as opposed to the conduct of outside persons who\nmay have occasion to deal with the Department. Thus, this definition suggests\nthat Congress intended to authorize the Inspector General to investigate only\npassport and visa \xe2\x80\x9cmalfeasance,\xe2\x80\x9d as opposed to passport and visa \xe2\x80\x9cfraud.\xe2\x80\x9d\nThis suggestion is borne out by several aspects of the legislative history of\nthe FSA. Although none alone is dispositive, the several statements in combi\xc2\xad\nnation provide a persuasive indication that the Inspector General\xe2\x80\x99s powers\nwere directed at the internal conduct of the Department and the Foreign\nService. First, the House Committee on Post Office and Civil Service ex\xc2\xad\nplained that Chapter 2, in which \xc2\xa7 209 is found, \xe2\x80\x9cdeals with the management of\nthe Foreign Service generally .. . . \xe2\x80\x9d E.g., H.R. Rep. No. 992, 96th Cong., 2d\nSess. (Part 2) 22 (1980). That report further declared that a purpose of estab\xc2\xad\nlishing the office of Inspector General would be to \xe2\x80\x9cprovide leadership and\ncoordination and recommend policies for activities designed to promote effi\xc2\xad\nciency and to prevent and detect fraud and abuse in such programs and\noperations.\xe2\x80\x9d Id. (emphasis added). That Committee, therefore, also appears to have\ncontemplated that the Inspector General would confine his investigative activities to\nthe administration of operations as conducted by the Department of State.\nThe House Committee on Foreign Affairs reported that the objectives to be\nmet by the Inspector General \xe2\x80\x9cinclude systematic examinations of whether\n178\n\n\x0cfinancial transactions are properly conducted, whether resources are being used\nefficiently, whether requirements of law are being met (including the antidis\xc2\xad\ncrimination and antireprisal provisions of section 105 of this bill), and whether\nthere are instances of fraud or other irregularities.\xe2\x80\x9d E.g., H.R. Rep. No. 992,\n96th Cong., 2d Sess. (Part 1) 23 (1980). The phrasing of this list of objectives\nplaces an emphasis on employee behavior. For example, the Committee\xe2\x80\x99s\nparenthetical elaboration of its term \xe2\x80\x9crequirements of law,\xe2\x80\x9d which refers to\n\xc2\xa7 105 of the bill, specifies laws applicable solely to Department employees.\nFurther, the reference to \xe2\x80\x9cfraud or other irregularities\xe2\x80\x9d suggests that the fraud\nmentioned is a species of a broader class of \xe2\x80\x9cirregularities\xe2\x80\x9d \xe2\x80\x94 a term which, by\nreferring to departure from established norms, connotes derelictions of official\nduty, rather than deceit worked upon Department officials by non-employees.\nThis Committee, therefore, evidently understood the grant of authority to apply\nto the investigation of acts committed by employees of the Department of State.\nFinally, \xc2\xa7 209 empowers the Inspector General to \xe2\x80\x9creceive and investigate\ncomplaints or information from a member o f the Service or employee o f the\nDepartment concerning the possible existence of an activity constituting a\nviolation of laws or regulations, constituting mismanagement, gross waste of\nfunds, or abuse of authority, or constituting a substantial and specific danger to\npublic health or safety.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 3929(f) (emphasis added). Of the enumer\xc2\xad\nated derelictions, only the first is capable of general applicability outside the\nDepartment. Its context, however, suggests that its purpose, once again, was to\nfacilitate investigations of employees. The articulation of this complementary\npower in terms of complaints of employees is further evidence that Congress\nwas conferring authority over intra-departmental malfeasance, to which em\xc2\xad\nployees would be the most likely witnesses.\nIn light of these considerations and evaluated against the general rule that the\nAttorney General will investigate violations of Title 18 in the absence of a\nstatute expressly delegating authority to another department, see supra note 1,\nwe believe that Congress should not be regarded as having conferred on the\nInspector General, in the FSA, the authority to investigate passport and visa\nfraud that is, fraud committed in passport application or use by persons not\nconnected with the Department of State. Far from constituting an express\ndelegation of such investigative authority, \xc2\xa7 209 and its legislative history\npersuasively suggest that the power to investigate passport and visa fraud was\nnot embraced at all by the statutory grant. It follows that if the Secretary has\nsome derivative source of authority to investigate passport and visa fraud, then\nthat authority was not supplanted, transferred, or limited by the FSA.2\n2 W e have exam ined only the statutory grant o f investigative authority to the Inspector General and,\ntherefore, express no view on the existence o r scope o f independent investigative authority in the Secretary\nwith regard to either \xe2\x80\x9cfraud\xe2\x80\x9d o r \xe2\x80\x9cm alfeasance.\xe2\x80\x99* W e do note, how ever, that if there w ere som e overlap o f\nauthority betw een the Inspector G eneral and the Secretary in the area o f passport or visa m alfeasance, the\nSecretary would not necessarily be ousted o f all such pow er by the FSA. As this O ffice previously stated\ngenerally with respect to the 1978 Inspector G eneral Act, \xe2\x80\x9cthere is no indication in the A ct that C ongress\nintended th e agency head to perform [his supervisory] functions at all times through the Inspector G eneral.\xe2\x80\x9d\nContinued\n\n179\n\n\x0cC. A uthority o f Special Agents\n\nYour inquiry whether Special Agents may conduct questioning and request\nthat an individual accompany them to another spot raises two issues: whether\nthe Office of Security has any authority to investigate passport and visa fraud\nand whether the type of confrontation described in your letter falls within the\nscope of that authority. Any authority possessed by the Office of Security is\nderived either from the Inspector General or from the Secretary, as there does\nnot, to our knowledge, exist any independent grant to that Office concerning\npassport and visa fraud. We have concluded above that the Inspector General\ndoes not have authority under the FSA to conduct investigations of passport\nand visa fraud. Thus, any investigative authority possessed by the Office of\nSecurity in this area must flow from the Secretary. Further, the FSA prohibits\nthe Inspector General\xe2\x80\x99s subordinates from serving two masters by providing\nthat both the employees appointed by the Inspector General and the employees\nof the Department of State assigned to the Inspector General are to be respon\xc2\xad\nsible \xe2\x80\x9csolely\xe2\x80\x9d to the Inspector General. 22 U.S.C. \xc2\xa7 3929(e)(2). This require\xc2\xad\nment was intentionally imposed to establish an Inspector General staff inde\xc2\xad\npendent of the Secretary. See S. Rep. No. 913, 96th Cong., 2d Sess. 26 (1980).\nConsequently, Special Agents of the Office of Security assigned to the Inspec\xc2\xad\ntor General, like the Inspector General himself, would possess no authority to\ninvestigate passport and visa fraud. Special Agents not so assigned, and thus\nresponsible to the Secretary, would be able to implement whatever investiga\xc2\xad\ntive authority the Secretary possesses.\nThe second issue raised by this particular inquiry involves the contours of\npermissible investigative activities. We address this question on the assump\xc2\xad\ntion that some derivative authority to investigate passport and visa fraud\nresides in the Secretary and is validly delegated to the Office of Security.\nAuthority to investigate, however, even if granted expressly by statute, would\nnot automatically confer other specific law enforcement powers. Postal inspec\xc2\xad\ntors, for example, were held not to derive powers of arrest from the Post Office\nDepartment\xe2\x80\x99s general statutory authority to investigate postal offenses. Alexander\nv. United States, 390 F.2d 101, 105 (5th Cir. 1968). Similarly, the Attorney\nGeneral\xe2\x80\x99s authority to appoint \xe2\x80\x9cinvestigative officials\xe2\x80\x9d under 28 U.S.C. \xc2\xa7 533\nwas understood by the Attorney General and the Congress as not sufficient to\ngive FBI agents the power to make arrests or carry firearms, prompting Con\xc2\xad\ngress to provide for such powers explicitly fifteen years later. E.g., H.R. Rep.\nNo. 1824, 73d Cong., 2d Sess. 1-2 (1934); see Act of June 18, 1934, Pub. L.\nNo. 73-402, 48 Stat. 1008.\n2 (. . . continued)\nL etter to G eneral C ounsel, General Services A dm inistration from Ralph W. Tarr, D eputy Assistant Attorney\nG eneral, O ffice o f Legal Counsel (Mar. 2 4 , 1983). Any lim its on the S ecretary\xe2\x80\x99s existing pow er to investigate\nm alfeasance that m ight be inferred from th e FSA would h ave to be determ ined on the facts and circum stances\ninvolved in a p articu lar class o f investigations. The questions raised in your letter do not appear to us to\nrequire an analysis o f the Secretary\xe2\x80\x99s investigative ju risd ictio n over em ployee malfeasance.\n\n180\n\n\x0cIt is well established that the authority to exercise law enforcement powers\nmust be conferred expressly by statute. In the absence of a federal statute,\nfederal officers have the powers of arrest conferred by the law of the State in\nwhich the arrest occurs. M iller v. United States, 357 U.S. 301, 305 (1958);\nUnited States v. Di Re, 332 U.S. 581, 589 (1948). If state law makes no\nprovision for arrests by federal officers, they have only the authority of a\nprivate citizen. Coplon v. United States, 191 F.2d 749, 753 (D.C. Cir. 1951);\naccord United States v. Chapman, 420 F.2d 925,926 (5th Cir. 1969). It is clear\nthat the Special Agents of the Office of Security have the statutory power to\narrest only in their capacity as protectors of certain statutorily specified per\xc2\xad\nsons. 22 U.S.C. \xc2\xa7\xc2\xa7 2666-2667 (heads of foreign states, official representatives\nof foreign governments, the Secretary of State, the Deputy Secretary of State,\nofficial representatives of the U.S. Government, and families thereof). If an\ninterrogation such as you have described, not involving this protective role,\nconstitutes an arrest, therefore, a Special Agent would not have the authority to\nconduct it under a general grant of investigative jurisdiction.\nThere are limits that an investigation may not exceed without acquiring the\nattributes of an arrest. \xe2\x80\x9cIn the name of investigating a person who is no more\nthan suspected of criminal activity, the police may n o t . . . seek to verify their\nsuspicions by means that approach the conditions of arrest.\xe2\x80\x9d Florida v. Royer,\n460 U.S. 497, 499 (1983) (plurality opinion). In attempting to determine\nwhether particular conduct crosses the line between investigative questioning\nand arrest, courts generally look at all of the circumstances and the context in\nwhich the issue has arisen. See United States v. Mendenhall, 446 U.S. 544,554\n(1980) (opinion of Stewart, J.). Addressing a tort claim of false imprisonment,\nfor example, one court found that no arrest had occurred when an agent touched\nthe plaintiffs arm and encouraged him to head toward an office for question\xc2\xad\ning. The court reasoned that the plaintiff was subject neither to custody nor to\ncontrol, nor was he constrained by the authority or official capacity of the\nagents. Belcher v. United States, 511 F. Supp. 476, 483 (E.D. Pa. 1981).\nCases decided on the basis of the Fourth Amendment to the Constitution\nprovide the richest source of judicial analysis of the point at which an arrest\noccurs. \xe2\x80\x9cA person is not arrested or seized under the Fourth Amendment if he is\nfree to choose whether to enter or continue an encounter with police and elects\nto do so.\xe2\x80\x9d United States v. Brunson, 549 F.2d 348, 357 (5th Cir.), cert, denied,\n434 U.S. 842 (1977). Generally, the inquiry involves an objective test of\nwhether the average, reasonable person would have thought that he had been\narrested. United States v. Scheiblauer, 472 F.2d 297, 301 (9th Cir. 1973);\nCoates v. United States, 413 F.2d 371, 373 (D.C. Cir. 1969). Thus, if Special\nAgents ask an individual to accompany them for the purpose of answering\nsome questions and tell the subject that he is not under arrest and that he is free\nto leave, he will be deemed to have consented to the questioning and not\narrested. United States v. Vita, 294 F.2d 524, 528 (2d Cir. 1961).\nAlthough the above principles have been developed for purposes of deter\xc2\xad\nmining such matters as the legality of detention, searches, and seizure of\n181\n\n\x0cevidence, they also furnish a benchmark from which to measure the limits of\nactivities that fall within the general purview of \xe2\x80\x9cinvestigation.\xe2\x80\x9d On the basis of\nour research, we believe that consensual questioning is within a grant of\ninvestigative authority. Whether such questioning is consensual will depend\nupon whether the subject believes that he is free to refuse to answer questions\nin any location and, therefore, that he is not in custody. It would be helpful in\nthis regard if the credentials that Special Agents display before initiating\nquestioning were revised to reveal these limitations on the authority of the\ninvestigating officers and if the agents informed their subjects of these limitations.\nConclusion\nWithout analyzing the source, validity, or scope of the authority of the\nSecretary of State to conduct investigations of passport and visa fraud, we have\nconcluded that the FSA does not change the scope of that claimed authority.\nThe FSA does not confer upon the Inspector General of the Foreign Service\nexpress power to investigate passport and visa fraud, and consequently does\nnot withdraw from the Secretary any residual powers he may have over such\ninvestigations. We have not attempted to resolve what those residual powers\nmay include. When acting under investigative authority delegated by the\nSecretary. Special Agents may conduct consensual questioning of individuals\nand may request that an individual consent to being questioned elsewhere,\nprovided that a reasonable person would understand that compliance with such\na request is voluntary.3\nL a r r y L. S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 N O TE: A fter this opinion was issued by the O ffice o f Legal C ounsel, (1) the Inspector G eneral Act of\n1978 w as am ended to include the In sp ecto r G eneral o f the D epartm ent o f State, see Pub. L. No. 99-93,\n\xc2\xa7 150(a), 99 Stat. 405, 427 (1985), and (2 ) Special A gents o f the D epartm ent of State were granted specific\nstatutory authority to investigate and m ake arrests with respect to illegal visa and passport issuance, see id.\n\xc2\xa7 125(a), 99 Stat. at 4 1 5 -1 6 (codified at 2 2 U.S.C. \xc2\xa7 2709(a)(1)).\n\n182\n\n\x0c'


b'Representation of Government Employees in Cases Where\nTheir Interests Diverge from Those of the United States\nT h e A tto rn e y G e n e ra l is a u th o riz e d to rep re sen t th e personal interests o f g o v e rn m e n t\nem p lo y ees sued in th e ir official cap ac ities if it w ill se rv e th e interests o f th e U nited\nS tates.\nE v e n if a d e q u a te rep re sen tatio n o f an e m p lo y e e \xe2\x80\x99s personal interests in a law suit requires\nth e m ak in g o f an a rg u m e n t th at c o n flic ts w ith a g o v e rn m e n ta l position, such re p re se n \xc2\xad\ntatio n m ay still se rv e th e in terests o f th e U n ited S tates.\nW h ere th e p erso n al in terests\nU n ited S tates, as w o u ld be\nsu p p o rt a claim against th e\nG e n e ra l e ith e r to rep re sen t\ncounsel.\n\no f e m p lo y ee-d efen d an ts co n flict w ith th e interests o f the\nth e case if th e y w e re to a d v a n c e an arg u m en t th at w ould\nU n ited S tates, it w o u ld be in a p p ro p ria te for th e A tto rn e y\nthem d ire c tly o r to finance th eir rep re sen tatio n by p riv ate\n\nIf th e p erso n al in terests o f e m p lo y e e -d e fe n d a n ts p o ten tially co n flict w ith th e in terests o f\nth e U n ited S tates, th e A tto rn e y G e n e ra l m ay still rep re sen t them , if th e y w ish him to\nd o so, w ith o u t im p licatin g th e eth ic a l ru le against rep re sen tin g d ifferin g interests o f\nm u ltip le clients.\n\nMarch 27, 1980\nMEM ORANDUM OPINION FO R T H E ASSISTANT ATTORNEY\nG EN ER A L, C IV IL DIVISION\nYou have requested our views on two representation questions that\narose on appeal in a civil case in the Seventh Circuit, Hampton, et al. v.\nHanrahah, et al.. No. 77-1698.* We gave you oral advice with respect\nto both questions. This memorandum sets out our thinking in greater\ndetail.\nAt the trial, the Department of Justice (DOJ) represented three\nfederal defendants, all of them agents or former agents of the Federal\nBureau of Investigation (FBI) who are accused of having assisted the\nState of Illinois in a lethal and allegedly unlawful \xe2\x80\x9craid\xe2\x80\x9d against Black\nPanthers in Chicago in 1969. DOJ defended the case on the merits,\nwon a directed verdict at the close of the plaintiffs\xe2\x80\x99 evidence, and\nsuffered a reversal on appeal when the Seventh Circuit remanded the\ncase for a new trial. The Seventh Circuit held that the plaintiffs\xe2\x80\x99\nevidence was sufficient to go to the jury.\n\xe2\x80\xa2 N o t e : The court of appeals decision in Hampton v. Hanrahan is reported at 600 F.2d 600 (7th Cir.\n\n1979). Ed.\n\n528\n\n\x0cIf the Seventh Circuit had simply remanded the case, no representa\xc2\xad\ntion problem would have arisen. The Civil Division believes that the\ncase is clearly one in which it is necessary and proper under our\nRepresentation Guidelines 1 for the government to provide a defense on\nthe merits. In connection with the remand, however, the Seventh\nCircuit entered an order making an impressive award to the plaintiffs\n(in the amount of $90,000 plus) for attorney fees incurred by them in\nconnection with the appeal; and in its order the court seemed to say\nthat the award would be collected, not from the defendants personally,\nbut from the State of Illinois and the United States (the United States\npaying one-third of the total). We note in passing that the United States\nis not a party to this action, although the federal defendants have\napparently been sued in their \xe2\x80\x9cofficial\xe2\x80\x9d as well as their \xe2\x80\x9cpersonal\xe2\x80\x9d\ncapacities.\nThe representation problem arises because (1) this Department has\ntraditionally taken the position that the United States cannot be re\xc2\xad\nquired to pay attorney fees under the statute upon which the Seventh\nCircuit relied, 42 U.S.C. \xc2\xa7 1988, and (2) the defendants may perceive\nthat it is in their interest to support the contrary view. In other words,\nto reduce their own liability or potential liability, they may wish to\nargue that the fee award may be collected from the United States.\nBecause of the possibility of a conflict between the government\xe2\x80\x99s\nposition and the position the defendants may wish to take with regard\nto the fee award issue, the Civil Division has advised the defendants\nthat it may be necessary to make some alteration in the representation\narrangement. In particular, the Civil Division has said: (1) that to\nvindicate the government\xe2\x80\x99s interest, the United States will request the\nSeventh Circuit to clarify its order; (2) that the United States will\npursue appropriate remedies in the Supreme Court if the Seventh Cir\xc2\xad\ncuit refuses to abandon the position it seems to have taken with regard\nto the liability of the United States; (3) that the Department will\nrepresent the defendants with regard to all aspects of the case (arguing\nboth that the directed verdict should have been allowed to stand and\nthat fees were not properly awarded either against the defendants or\nagainst the United States) if the defendants will agree to representation\non these terms, and will agree as well that the DOJ attorneys will be\nfree to support the view that the fee award cannot in any event be\ntaxed against the United States; (4) that the defendants should consult\nprivate counsel for advice as to how to proceed; and (5) that if they\nwish to pursue an argument contrary to the government\xe2\x80\x99s position on\nthe fee award issue, they must retain private counsel for that purpose.\n1 See 28 C.F.R. \xc2\xa7 50.15. A revised version of these guidelines exists but has not yet been printed in\nC.F.R. All references to the \xe2\x80\x9c Representation Guidelines" in this memorandum are references to the\nrevised version. [N o t e : The revised Representation Guidelines were published in the Code of Federal\nRegulations in substantially unchanged form in 1982. Ed.]\n\n529\n\n\x0cThe Civil Division has advised the defendants that the Department\ncannot pay for legal services rendered by private counsel on their\nbehalf in advancing arguments either in the Seventh Circuit or in the\nSupreme Court inconsistent with the government\xe2\x80\x99s view that \xc2\xa7 1988\ndoes not authorize awards against the United States.2\nIn the midst of this entangled state of affairs, you have requested our\nopinion on the following questions: First, is the Civil Division correct\nin its view that this Department has no authority to retain private\ncounsel to argue in court on the defendants\xe2\x80\x99 behalf that \xc2\xa7 1988 author\xc2\xad\nizes fee awards against the United States? Second, assuming the defend\xc2\xad\nants do not wish to pursue such an argument, would it be ethical for\nthe Department to continue to represent them under the terms de\xc2\xad\nscribed in (3) above?\nI.\n\nIn a series of recent opinions this Office has wrestled with the\ngeneral question of the Attorney General\xe2\x80\x99s authority to represent gov\xc2\xad\nernment employees in civil cases. Those opinions turn upon a number\nof considerations, but they proceed from one basic proposition: The\ngeneral statutes that define the Attorney General\xe2\x80\x99s litigation function\n(28 U.S.C. \xc2\xa7 515 et seq.) authorize him to defend government employees\nagainst claims arising against them for conduct in the course of their\nemployment, even in cases in which the relief sought by the claimant\nwill not bind the Treasury of the United States or direct the officers of\nthe United States in the performance of their duties. In other words,\nthese general statutes authorize the Attorney General to defend the\ngovernment employees against claims affecting their personal interests\xe2\x80\x94\ni.e., claims against their property or against their liberty or reputations\n(e.g., state criminal prosecutions).\nThe rationale for this interpretation of the Attorney General\xe2\x80\x99s func\xc2\xad\ntion is straightforward: If an employee is sued personally for something\nhe did or omitted to do in the course of his employment, the United\nStates may well have an interest in establishing that his conduct was\nlawful and in relieving him of the expense of retaining an attorney,\nprovided the act or omission of which he is accused was a normal and\n2 The defendants may of course decide not to argue that the award may be collected from the\nUnited States. The legal support for such an argument is not ironclad, and in any case the defendants\nmay conclude that they stand a better chance of defeating the award if they can show that it cannot\nbe collected from a deep pocket, the Treasury of the United States. We cannot of course anticipate\nwhat the defendants may do or what advice they may receive from private counsel.\nWe note in passing that in some special circumstances the Civil Division, before making a final\nrepresentation decision, finds it necessary to retain and pay private counsel to consult with the\nemployee in question to determine whether or not there is in fact or law a conflict of interest that\nwould preclude representation by this Department. This practice is reasonably incident to the A ttor\xc2\xad\nney General\'s basic litigation function, since to represent personal interests he must first determine\nwhether they coincide with or diverge from the interests of the United States. It may be appropriate\nto follow this practice in the present case with regard to consultation by the defendants with private\nlawyers over the question of how they should proceed.\n\n530\n\n\x0cnecessary part of his job. In other words, the interests of the govern\xc2\xad\nment and the personal interests of the employee may coincide. A ccord\xc2\xad\ningly, since the relevant statutes provide that the Attorney General\nmay conduct any litigation in which the United States is \xe2\x80\x9cinterested,\xe2\x80\x9d\nthe Attorney General is authorized by statute to appear in proper cases\nto represent the personal interests of officers and employees who are\nsued in their personal capacities. Where private and public interests\ncoincide, the representation of private interests is tantamount to repre\xc2\xad\nsentation of the interests of the United States.\nThis conception of the Attorney General\xe2\x80\x99s function, which we reaf\xc2\xad\nfirm, is reflected in the Representation Guidelines. The Guidelines\nprovide that, when a government officer or employee is sued personally\nfor something he did or omitted to do in the course of his employment,\nthe Attorney General will defend him, if it can be determined that a\ndefense of his personal interests will serve the interests of the United\nStates.\nIn the typical case, the Attorney General represents government\nemployees through attorneys and assistants regularly employed in the\nDepartment or in the U.S. Attorneys\xe2\x80\x99 Offices; but with increasing\nfrequency in recent years the Attorney General has retained private\nlawyers to represent government employees. Why has this happened?\nThe basic principles of personal representation are sound in theory, but\nthey are not easy to follow in practice. Cases arise in which: (1) a\ndecision regarding representation must be made before it is known\nwhether the interests of the government coincide with the personal\ninterests of the defendant; (2) conflicts among multiple personal interests\nmake it awkward for this Department to represent them all; (3) an\nidentity of interest between the government and an individual which is\npresent at the outset of a case evaporates in the course of litigation; or\n(4) a community of interest regarding core issues is disrupted by a\ndivergence of interest regarding some peripheral point. As we under\xc2\xad\nstand it, the practice of retaining private lawyers to defend government\nemployees arose as the Department attempted to deal justly and effi\xc2\xad\nciently with these problem cases. The Guidelines provide that private\ncounsel may be provided in lieu of government counsel in certain\nspecial cases in which representation by government counsel would be\nawkward. We need not discuss the phenomenon in its entirety. Instead,\nfor purposes of analysis, w e\'w ill show why in some circumstances it\ndoes make sense for the Attorney General to discharge his representa\xc2\xad\ntion function through private lawyers, and we will then consider the\npresent case in its relation to the Revised Guidelines.\nIt is sometimes awkward from an institutional or professional stand\xc2\xad\npoint for DOJ lawyers to provide personal representation for govern\xc2\xad\nment employees, even though it is clear that representation of their\ninterests will be in the interest of the United States. The best example\n531\n\n\x0cof that sort of case is the one involving multiple federal defendants who\nhave differing views regarding the relevant facts. It may well be that\nnone of these views differs in a material way from the view (if any) that\nthe \xe2\x80\x9cUnited States\xe2\x80\x9d would have on the subject if the United States\nwere a party to the case; and the ultimate outcome sought by each of\nthe defendants may be perfectly consistent with the interests of the\nUnited States. Nonetheless, because of the differences regarding the\nfacts, it might be professionally awkward for one DOJ lawyer or any\none group of DOJ lawyers to represent all of the defendants; in such\ncases this Office has taken the view that the Attorney General has\n\xe2\x80\x9cimplied authority\xe2\x80\x9d to provide representation through a mechanism\nthat will enable him to resolve the professional difficulty. In particular,\nusing his general authority to contract for services necessary in the\nperformance of his statutory functions, he can hire private lawyers to\ndo indirectly what it would be awkward for DOJ lawyers to do\ndirectly.\nA far more troubling class of cases in which private representation is\nsometimes provided are those in which it is clear that the personal\ninterests of the employee-defendant actually diverge from the interests\nof the United States with regard to some material issue of fact or law\ninvolved in the litigation. This is the class of cases most directly\nrelevant to your inquiry, and to that class we now turn.\nSection 50.15(a)(10) of the Revised Guidelines contemplates that\ncases will arise in which \xe2\x80\x9cadequate\xe2\x80\x9d representation of the personal\ninterests of a government employee may require \xe2\x80\x9cthe making of an\nargument which conflicts with a governmental position.\xe2\x80\x9d * The Guide\xc2\xad\nlines provide that, in such a case, the conflict between \xe2\x80\x9cthe governmen\xc2\xad\ntal position\xe2\x80\x9d and the \xe2\x80\x9cargument\xe2\x80\x9d to be made on the employee\xe2\x80\x99s behalf\nneed not prevent the Department from providing the employee with\nrepresentation. It may yet be possible to determine that representation\nof the employee will serve the interests of the United States; and if that\nis the case, the Guidelines provide that the Department can do one of\ntwo things: (1) it can tender representation through a DOJ lawyer (if\nthe employee, after being advised of the government\xe2\x80\x99s conflicting posi\xc2\xad\ntion with regard to the \xe2\x80\x9cargument,\xe2\x80\x9d consents to representation on the\ngovernment\xe2\x80\x99s terms), or (2) it can provide representation through a\nprivate lawyer, who will represent the employee at government ex\xc2\xad\npense and make the argument that the government lawyer cannot\nmake.\nThe problem lies with the second option. How can it be in the\ninterest of the United States (and therefore within the province of the\nAttorney General under \xc2\xa7 515 et seq.) to finance an argument in court\n\xe2\x80\xa2 N o t e : A s published in the Code of Federal Regulations in 1982, the Representation Guidelines\nrefer to \xe2\x80\x9cthe assertion of a position that conflicts with the interests of the United States\nSee 28\nC.F.R. \xc2\xa7 50.15(a)( 10) (1982). Ed.\n\n532\n\n\x0cthat is inconsistent with the position that the United States itself has\ntaken or would take with respect to the matter in issue? For purposes\nof this memorandum, we will not attempt to answer that question in\ngeneral terms. We are aware that in difficult and appealing circum\xc2\xad\nstances, \xc2\xa7 50.15(a)(10) has been invoked to provide government employ\xc2\xad\nees with private lawyers who have made arguments inconsistent with\npositions taken by the United States. But our most recent opinion on\nthis subject suggests that it is not within the province of this Depart\xc2\xad\nment to provide employees with representation directly or indirectly\nfor the purpose of opposing the government itself in federal criminal\nproceedings, and we reasoned in that memorandum that providing a\npersonal defense for an employee in a civil case is justified only to the\nextent that the defense is tantamount to a defense of the government\nitself. The Attorney General represents government employees, directly\nor indirectly, only to the extent that their interests coincide with the\ninterests of the United States.\nHowever the issue may be resolved in other contexts, the present\ncase presents the issue in a most extreme setting. This case may well be\ndistinguishable in a qualitative sense from a great many of the other\ncases in which the question can arise. Here we are being asked to\ndecide not merely if this Department may finance a collateral argument\nthat would differ in some respect from an argument the \xe2\x80\x9cUnited States\xe2\x80\x9d\nwould make in pursuit of the same result or in defense of the same\nclaim. Rather, we are being asked to decide that the Department may\nfinance an argument that would be made in support of a claim against\nthe United States. That is what the Department would be doing if it\nprovided private representation on the fee award issue. We would be\npaying a lawyer to argue either that the plaintiffs\xe2\x80\x99 claim for fees under\n\xc2\xa7 1988 is good against the United States, or that the defendants them\xc2\xad\nselves have a legal claim against the United States for indemnity, or\ncontribution for fees taxed against them. It is purely a question of\nsovereign immunity: as between the defendants and the United States,\nwho pays?\nThere may indeed be circumstances in which Congress could \'con\xc2\xad\nclude that it would serve the larger interests of the United States to\nfinance legal claims against the United States. Congress could, for\nexample, establish a legal aid society for government employees for the\npurpose among others of supporting a legal assault on the doctrine of\nsovereign immunity. But if it would be possible to make a legislative\nchoice in favor of these claimants, it would nonetheless be very diffi\xc2\xad\ncult, in our view, to conclude that that sort of choice is within the\nscope of the Attorney General\xe2\x80\x99s implied authority under the statutes\nthat define his office. His function, as we read those statutes, is to use\nthe resources of this Department to oppose legal claims against the\nUnited States where, as here, he believes them to be without legal\n533\n\n\x0cmerit. It is not his function to support such claims. For that reason we\nthink it would be inappropriate to construe the Revised Guidelines as\nauthorizing the Civil Division to pay private lawyers to represent\ngovernment employees in connection with the support or assertion of\nclaims such as the claim involved here. We think it would be inappro\xc2\xad\npriate for the Attorney General to provide the federal defendants with\nprivate representation for the purpose of attacking the United States on\nthe fee award issue.\nWe have three additional observations to make before moving to\nyour second question. First, our analysis has turned thus far on an\ninterpretation of the statutes that define the Attorney General\xe2\x80\x99s litigat\xc2\xad\ning function, 28 U.S.C- \xc2\xa7 515 et seq. This analysis is appropriate in our\nview, since our task is to construe the Representation Guidelines, and\nthose Guidelines are designed to define the Attorney General\xe2\x80\x99s litigat\xc2\xad\ning function in civil cases involving government employees.\nSecond, it makes no difference for purposes of this analysis that the\ndefendants in the present case are employees or former employees of\nthe Department of Justice. Absent a specific statute that alters the usual\narrangement, the Attorney General\xe2\x80\x99s authority to represent the personal\ninterests of government employees in civil litigation (directly or indi\xc2\xad\nrectly) does not vary under \xc2\xa7515 el seq. from agency to agency, and\nthe limitations on his authority are the same in each case. Under \xc2\xa7 515\net seq., the Attorney General\xe2\x80\x99s authority to provide representation for\nDOJ employees who are sued personally in a civil case is no different\nfrom his authority to provide representation for the employees of, say,\nthe Department of State.\nFinally, we are mindful that the Attorney General is not simply a\nlitigator. He has important functions other than those prescribed in\n\xc2\xa7515 et seq. He is the head of a large executive department; and like\nany. department head he has general authority, subject to appropria\xc2\xad\ntions, to make contracts and pay expenses that must be made and paid if\nhis department is to run as it should. We endorse the principle, recog\xc2\xad\nnized on occasion by the Comptroller General, that general executive\nauthority of this sort may be invoked from time to time to permit an\nagency to reimburse its own employees for personal expenses incurred\nby them as a necessary consequence of faithful and lawful performance\nof their official duties. Indeed, although we express no firm view on\nthis point, we see no reason why authority of this sort cannot be\ninvoked by this or any other agency to reimburse blameless employees\nfor personal expenses incurred by them in litigation, provided it is clear\non the facts of each case that the expenses were incurred as a necessary\nconsequence of due performance of an official duty.\nBut even if that principle is valid, we think it has no application in\nthe present context. The question is whether this Department could\nreimburse the defendants for the cost of arguing in court that the\n534\n\n\x0cUnited States can be held liable for payment of attorney fees under\n\xc2\xa7 1988. An argument of that sort would not serve to establish the\nlegality of any official action by these defendants or by this agency; it\nwould, if accepted, enlarge the legal liabilities of the United States. It\nwould not directly support any position taken by the government; on\nthe contrary, it would be advanced in opposition to the position taken\nby this agency in this very case. It might or might not serve the\npersonal interests of the defendants; but if it did serve them, it would\ndo so in precisely the same way that any private claim against the\npublic fisc (e.g., a claim for indemnity or contribution) might serve the\ninterests of government employees in circumstances in which the ques\xc2\xad\ntion is ultimately one of substituting public for private liability. It is a\nclaim that they are fully entitled to make, but we think it would be\nvery difficult to regard it as a claim that they must make as a necessary\nconsequence of the duties cast upon them by their public employment,\nand it would therefore be difficult to regard the attendant expense as an\nexpense they must \xe2\x80\x9cnecessarily\xe2\x80\x9d incur within the meaning of the reim\xc2\xad\nbursement rule.\nII.\nYou have advised the defendants: (1) that the Department will with\xc2\xad\ndraw as their counsel in this phase of the case if they decide that they\nshould lend their support to the claim that the United States may be\nheld liable for the fee award (either to the plaintiffs directly or to\nthemselves by way of indemnity or contribution); (2) that in any event,\nthe United States will attempt to intervene in the case to support the\nposition that the award against the United States was improper; but (3)\nthat DOJ attorneys will continue to represent them if they desire the\nrepresentation to continue and agree in writing that DOJ attorneys will\nbe free to take the position that the fee award cannot be taxed against\nthe United States. You have also advised the defendants that a failure\non their part to oppose the position taken by the United States in this\ncase may later be regarded by a court as the equivalent of a waiver of\ntheir right, if any, to claim that the United States is liable to anyone\n(including them) for any part of the fee award.\nYou have asked whether, in our view, the option described in (3)\npresents any substantial ethical difficulty. For the reasons given below,\nwe think it does not.\nIt is for these defendants, acting with the advice of competent law\xc2\xad\nyers, to determine how they shall conduct their personal defense.\nWhether in the long run it will serve their personal interests-to support\nthe view that the United States can be held liable for payment of the\nfee award, or whether it will serve them better to stand now with the\nUnited States and be represented by DOJ lawyers in this phase of the\ncase, is a question as to which this Department cannot properly advise\n535\n\n\x0cthem, given the conflicting governmental position. The Civil Division\nhas suggested that they should therefore consult private counsel, and\nthe Civil Division has offered to withdraw if they conclude that the\nbetter course is to oppose the governmental position. The Civil Divi\xc2\xad\nsion has said that it will continue to represent them in this phase of the\ncase only if they decide to go forward in a way that is consistent with\nthe governmental position, but as regards the ethics of withdrawal\nversus the ethics of continued representation, it seems to us that having\npromised at the outset that the Department would represent their inter\xc2\xad\nests to the extent that those interests coincide with the interests of the\nUnited States, the ethical difficulty would lie with an adamant refusal\nto proceed with representation, not with a continuing effort to do what\nwe promised to do at the outset, assuming of course that the defend\xc2\xad\nants, after consultation with independent counsel, conclude that this is\nthe better course.\nPutting its unique features to one side, this case is very much like the\nroutine civil action in which codefendants have a common interest in\ndefeating all of the claims against all of them, even though each defend\xc2\xad\nant may have an individual interest in giving reasons why his\ncodefendants, not he, should respond in damages to the complaint. In\nthat setting, it is clear that defendants are free as a matter of litigation\nstrategy to subordinate the interests that divide them and to present a\nunited front against the plaintiff as to the law or the facts. The choice is\ntheirs; and if, after consultation with independent counsel, they choose\nto present a united front, there is no ethical difficulty in engaging one\nlawyer to present their united position. Cf. Aetna Ins. Co. v. United\nStates, 570 F.2d 1197 (4th Cir. 1978).\nWe do not know how the defendants will be advised in this case, but\nit is at least possible they will conclude that they will stand a better\nchance of escaping ultimate liability for payment of a fee award if they\nsupport the government\xe2\x80\x99s position and establish that there is no deep\npocket from which part of the award can be paid; and* in any event,\nthey may conclude that they simply do not wish to oppose the govern\xc2\xad\nment on this point. They are loyal employees. That, in essence, is their\ndefense on the merits.\nWe have one or two additional observations to make. We express no\nview on the general question whether it is necessary or desirable to\nanalyze this particular ethical problem by reference to the settled prin\xc2\xad\nciples that govern the representation of \xe2\x80\x9cdiffering interests\xe2\x80\x9d by private\nattorneys. See Canon 5 and DR 5-105. This Office frequently draws\nupon those and other private-law principles in our effort to provide\nguidance to the Department in ethical matters; and it is true of course\nthat by virtue of our own regulations the Code of Professional Respon\xc2\xad\nsibility governs our conduct here to the extent that the Code attempts\nto deal with the kinds of problems that confront us as government\n536\n\n\x0clawyers. But we\' need to keep in mind that we are often called upon to\nresolve representation questions that involve considerations quite differ\xc2\xad\nent from those that are usually involved in private cases. Among these\n\xe2\x80\x9cdifferent considerations\xe2\x80\x9d are the statutes that establish the office of the\nAttorney General and define his litigating and counseling functions. As\nwe have suggested in part I of this opinion, these statutes impose\noverriding substantive limitations on what the Attorney General and\nthe attorneys who work under him may and may not do in court.\nCanon 5 and DR 5-105 contemplate that there is a limited class of\ncases in which a lawyer may undertake to represent the \xe2\x80\x9cdiffering\ninterests\xe2\x80\x9d of \xe2\x80\x9cmultiple clients.\xe2\x80\x9d He may do this only if: (1) it is \xe2\x80\x9cobvi\xc2\xad\nous\xe2\x80\x9d that he can adequately represent the interest of each, and (2) each\nclient consents to the representation \xe2\x80\x9cafter full disclosure of the possible\neffect of such representation on the exercise of his independent profes\xc2\xad\nsional judgment on behalf of each.\xe2\x80\x9d In other words, the rule envisions a\nsituation in which a lawyer attempts to provide \xe2\x80\x9cadequate\xe2\x80\x9d representa\xc2\xad\ntion for all of the interests of more than one client, even though there\nmay be differences as between two or more of those interests. The rule\ndoes not contemplate a case of the kind presented here: a case in which\na lawyer who is also an officer of the government (the Attorney\nGeneral) undertakes to discharge a statutory duty to represent officers\nof the United States in civil litigation but, because of overriding statu\xc2\xad\ntory limitations on his authority, undertakes to represent their personal\ninterests only to the extent that they coincide with the interests of the\nUnited States. He cannot and does not undertake to represent any\npersonal interest that differs from the interests of the United States. He\ndoes not, in a word, undertake to represent \xe2\x80\x9cdiffering interests\xe2\x80\x9d; and he\nleaves it to the defendants, after consultation with independent counsel,\nto determine: (1) whether they do in fact have interests that differ from\nthose of the United States; (2) whether their overall interests would be\nserved by taking an independent course in the litigation under the\nrepresentation of private counsel; or (3) whether their overall interests\nwould be better served by adopting a strategy of alliance with the\ninterests of the United States, as those interests are defined and repre\xc2\xad\nsented by the Attorney General. If they choose the latter course, we\nthink no ethical difficulty is presented by the Attorney General\xe2\x80\x99s will\xc2\xad\ningness to accommodate their desire that he appear on their behalf to\nadvance the interests that they hold in common with the United States.\nIn the context of a case of this sort, representation of common interests\nafter consultation with independent counsel is not representation of\n\xe2\x80\x9cdiffering interests,\xe2\x80\x9d and in our view it threatens none o f the dangers\nthat Canon 5 is designed to prevent.\nJ o h n M. H a r m o n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n537\n\n\x0c'


b"GAO Access to Trade Secret Information\nSection 301(j) of the Food, Drug, and Cosmetic Act of 1938 prohibits the Food and Drug Adm inis\xc2\xad\ntration from providing the General Accounting Office with access to trade secret information sub\xc2\xad\nmitted by drug manufacturers to the FDA.\n\nSeptember 13, 1988\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nD e p a r t m e n t o f H e a l t h a n d H u m a n S e r v ic e s\n\nThis memorandum responds to your August 18, 1988, request for our opinion\nas to whether the Food and Drug Administration (\xe2\x80\x9cFDA\xe2\x80\x9d) may provide the Gen\xc2\xad\neral Accounting Office (\xe2\x80\x9cGAO\xe2\x80\x9d) with access to trade secret information sub\xc2\xad\nmitted by drug manufacturers pursuant to the Food, Drug, and Cosmetic Act of\n1938 (\xe2\x80\x9cFDCA\xe2\x80\x9d), 21 U.S.C. \xc2\xa7\xc2\xa7 301-393. For the reasons discussed below, we\nconcur with the conclusion of your office1 that section 30 l(j) of the FDCA, 21\nU.S.C. \xc2\xa7 33l(j), prohibits the FDA from providing the GAO with such access.\nSection 301 (j) prohibits the FDA from\nrevealing, other than to the Secretary [of Health and Human Ser\xc2\xad\nvices (HHS)] or officers or employees of [HHS], or to the courts\nwhen relevant in any judicial proceeding under [the FDCA], any\ninformation acquired under [specified sections of the FDCA] con\xc2\xad\ncerning any method or process which as a trade secret is entitled\nto protection.\nSection 301 (j) is clear on its face. It expressly provides that trade secret infor\xc2\xad\nmation may not be disclosed outside HHS with one exception: such information\nmay be disclosed to a court in a judicial proceeding under the FDCA. Since the\nGAO is obviously not a court or part of HHS, under section 301 (j) it is prohib\xc2\xad\nited from gaining access to trade secret information.\nAttorney General Griffin Bell previously interpreted section 301 (j) to preclude\nthe FDA from furnishing to a congressional committee trade secret information.\n43 Op. Att\xe2\x80\x99y Gen. No. 21, at 1-2 (Sept. 8,1978) (relying \xe2\x80\x9con the unqualified lan\xc2\xad\nguage of \xc2\xa7 301 (j), the consistent and longstanding interpretation to this effect by\n1 Letter for John O McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, from Robert P\nCharrow, Deputy General Counsel, Department of Health and Human Services (Aug. 30, 1988).\n\n181\n\n\x0c[HHS], and prior congressional approval of that interpretation through the rejec\xc2\xad\ntion of an amendment to create an express exemption permitting disclosures to\nCongress\xe2\x80\x9d). The only question raised by your request, therefore, is whether the\nGAO is precluded from access to trade secret information to the same extent as\ncongressional committees.\nWe have no hesitation in concluding, on the basis of the 1978 Attorney Gen\xc2\xad\neral Opinion, that section 301(j) should be interpreted to preclude the GAO from\naccess to trade secret information covered by that section. Although whether to\nprovide access to a congressional committee was the specific question presented,\nthe Attorney General Opinion discussed the application of section 301 (j) with re\xc2\xad\nspect to Congress as a whole. The opinion noted that \xe2\x80\x9c[o]n its face, this section\nimposes an absolute bar to disclosure of trade secret information outside [HHS],\xe2\x80\x9d\nwith the one exception of a judicial proceeding; the opinion declined to find \xe2\x80\x9cany\nexception for disclosure to the Congress... to be implied.\xe2\x80\x9d Id. at 2. The Supreme\nCourt has held that the GAO is part of the legislative branch and is \xe2\x80\x9csubservient\nto Congress.\xe2\x80\x9d Bowsher v. Synar, 478 U.S. 714, 727-32 (1986). It therefore fol\xc2\xad\nlows that if there is no \xe2\x80\x9cexception for disclosure to the Congress,\xe2\x80\x9d as the Attor\xc2\xad\nney General Opinion concluded, then there is also no exception in section 301 (j)\nfor disclosure to the GAO.\nYou also raised in your request the question of whether 31 U.S.C. \xc2\xa7 716(a) au\xc2\xad\nthorizes the GAO to gain access to the trade secret information covered by sec\xc2\xad\ntion 301(j). Section 716(a) provides that:\nEach agency shall give the Comptroller General information the\nComptroller General requires about the duties, powers, activities,\norganization, and financial transactions of the agency. The Comp\xc2\xad\ntroller General may inspect an agency record to get the informa\xc2\xad\ntion. This subsection does not apply to expenditures made under\nsection 3524 or 3526(e) of this title.\nYour office suggested, but after consideration dismissed, the argument that sec\xc2\xad\ntion 716(a) supersedes section 301(j).\nUnder established rules of statutory construction concerning statutes that may\narguably conflict, however, section 301(j) controls in this situation. It is a cardi\xc2\xad\nnal axiom of statutory construction that \xe2\x80\x9c[w]here there is no clear [congressional]\nintention otherwise, a specific statute will not be controlled or nullified by a gen\xc2\xad\neral one, regardless of the priority of enactment.\xe2\x80\x9d Morton v. Mancari, 417 U.S.\n535, 550-51 (1974); see also Busic v. United States, 446 U.S. 398, 406 (1980)\n(\xe2\x80\x9c[A] more specific statute will be given precedence over a more general one, re\xc2\xad\ngardless of their temporal sequence.\xe2\x80\x9d). Since section 30l(j) is a specific statute\ndirectly addressing one executive branch agency\xe2\x80\x99s handling of trade secret in\xc2\xad\nformation, while section 716(a) is a general statute addressed to all kinds of in\xc2\xad\nformation in possession of the executive branch, section 301(j) controls in the\n182\n\n\x0cabsence of congressional intent to the contrary. We have reviewed the legislative\nhistory of section 716(a) and have found no evidence of any such intent.2\n\nConclusion\nFor the foregoing reasons, we concur with your conclusion that section 301 (j)\nof the FDCA prohibits the FDA from providing the GAO with access to trade se\xc2\xad\ncret information submitted by drug manufacturers pursuant to the FDCA.\nD o u g l a s W . K m ie c\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n2 The judicial enforcement provisions contained in other subsections of 31 U.S.C. \xc2\xa7 716 do not provide any ba\xc2\xad\nsis for concluding that section 716(a) supersedes section 301 (j). These other subsections set out a procedure by\nwhich the GAO may seek judicial enforcement of its right to executive branch information under section 716(a).\nSee 31 U.S.C. \xc2\xa7 7 16(b),(d) They also provide that certain types of information may be exempted from judicial en\xc2\xad\nforcement. See 31 U.S.C. \xc2\xa7 716(d). It might be argued on the basis of these other subsections that trade secret in\xc2\xad\nformation must be provided to the GAO because it is not the kind of information that may be exempted from judi\xc2\xad\ncial enforcement. This argument has no merit. It ignores the fundamental distinction between a nght and a judicial\nremedy to enforce the right: these other subsections simply address a method of enforcing GAO's right to infor\xc2\xad\nmation under section 716(a), they do not define in any way the nght itself. The question of the applicability of\nGAO\xe2\x80\x99s nght to information under section 716(a) is separate from, and does not depend on, any questions that may\narise under other subsections of 31 U.S.C. \xc2\xa7 716 concerning judicial enforcement of that right.\n\n183\n\n\x0c"