b'Disqualification of Prosecutor\nBecause of Former Representation\nIn matters that are substantially related to an Assistant United States Attorney\xe2\x80\x99s representation of\nclients prior to joining the government, the attorney should not participate in any investigation\nor prosecution that foreseeably involves individuals or entities who, although they arguably\nhad not been the attorney\xe2\x80\x99s \xe2\x80\x9cclients,\xe2\x80\x9d were contacted by the attorney in the course o f his prior\nrepresentation and indirectly paid the attorney\'s legal fees, unless the attorney\xe2\x80\x99s participation\nis essential to the conduct o f the D epartm ent\xe2\x80\x99s law enforcement operation.\nUnder the Supremacy Clause o f the Constitution, a state court or bar association may regulate the\nconduct of federal attorneys acting in the scope of their federal authority only to the extent\nthat such regulation is not inconsistent with the exigencies of federal employment.\n\nJanuary 11, 1985\nM\n\nem orandum\n\nE x e c u t iv e O f f ic e\n\nO p in io n\nfo r\n\nU\n\nfor th e\n\nn it e d\n\nD ir e c t o r ,\n\nStates Attorn ey s\n\nWe have been asked to provide advice for a Special Assistant United States\nAttorney (the AUSA) concerning his potential prosecution of suspected pornographers who indirectly paid his legal fees while he was engaged in the\nprivate practice of law. We understand that the pertinent facts are as follows.\nWhen in private practice, the AUSA represented an unspecified number of\nindividuals charged with displaying or selling obscene materials, to whom we\nshall refer collectively in this memorandum as XYZ. He was aware at the time\nthat XYZ had obtained the sexually explicit materials for which they were\nprosecuted from Corporation A, controlled by a Mr. B. The AUSA was also\naware that XYZ received reimbursement for legal fees.from A and B, although\nthe fees were paid to the AUSA\xe2\x80\x99s firm by XYZ. In addition, during this period,\nthe AUSA acknowledged that he communicated with a subsidiary corporation,\nC, wholly owned by either A or B, regarding the status of certain of these cases.\nC provided financial support to the individual clients by giving them credit on\npurchases from C in amounts directly proportionate to the AUSA\xe2\x80\x99s legal fees.\nThe AUSA\xe2\x80\x99s position was created by the Immigration and Naturalization\nService to prosecute multi-state conspiracies involving alien smuggling activ\xc2\xad\nity. In this capacity, the AUSA has reviewed FBI reports on A and B that\ncontain facts that the AUSA believes \xe2\x80\x9cfar exceed any knowledge\xe2\x80\x9d he may have\nhad of A and B\xe2\x80\x99s activities when he was active in the defense of obscenity\ncases. He anticipates that A and B will be the targets of further FBI investiga\xc2\xad\ntion and possible prosecution by the Department of Justice.\n1\n\n\x0cBased on these facts, the AUSA, a member of the Arizona Bar,1has inquired\nwhether he should disqualify himself from participating in the counseling of\nFBI agents in their pursuit of covert criminal investigations that may involve A\nand B. He has also inquired whether ethical considerations would preclude him\nfrom prosecuting a conspiracy case involving A and B.\nThe starting point for an analysis of attorney disqualification would ordi\xc2\xad\nnarily be the Model Code of Professional Responsibility of the American Bar\nAssociation (Model Code). The Model Code has been expressly adopted by the\nSupreme Court of Arizona, with certain amendments. 17A Ariz. Rev. Stat.\nAnn., S. Ct. Rule 29(a) (1983). The Department of Justice has consistently\nmaintained, however, that rules promulgated by state bar associations that are\ninconsistent with the requirements or exigencies of federal service may offend\nthe Supremacy Clause of the Constitution.2 This position is supported by the\ncase of Sperry v. Florida, 373 U.S. 379 (1963), in which the Supreme Court\nheld that when Congress and the Executive had authorized nonlawyers to\npractice before the United States Patent Office, the State of Florida could not\nprohibit such conduct as the unauthorized practice of law. Similarly, this Office\nhas concluded that a Department attorney, acting under Departmental orders in\nan undercover operation, cannot be guilty of violating state ethical rules \xe2\x80\x9cif his\nacts are authorized by federal law, including the Department\xe2\x80\x99s regulations\nprescribing ethical standards,\xe2\x80\x9d just as a federal employee, under appropriate\ncircumstances, may perform authorized federal functions without regard to the\nlimits of state criminal law. See Memorandum for Thomas P. Sullivan, United\nStates Attorney, Northern District of Illinois, from Mary C. Lawton, Deputy\nAssistant Attorney General, Office of Legal Counsel 14 (Aug. 1, 1978) (citing\nIn re Neagle, 135 U.S. 1, 75 (1890)).\nWe analyze below the Model Code and its treatment by the courts of various\njurisdictions. When possible, we have relied primarily on decisions of federal\ncourts, but have found it necessary to include some decisions of state courts as\nwell. We do not assume that any of these decisions are binding on the federal\nofficials who will ultimately make the decision about the AUSA\xe2\x80\x99s participation\nin this case, unless mandates of the United States Constitution are involved.\nRather, the principles are explained in order to assist you in formulating the\nmanagerial judgment that will determine the resolution of the issue. In addition\nto the Model Code, we have sought general guidance from the American Bar\nAssociation\xe2\x80\x99s new Model Rules of Professional Conduct, which replaced the old\nModel Code in August 1983, but which have not yet been adopted by most states.\nWe discuss, first, the attorney\xe2\x80\x99s duty of confidentiality to former clients and its\n1The ALISA is also a m em ber o f the Illinois Bar. Because o u r conclusions are based on general principles,\nwe do not an ticip ate that any different result w ould obtain under Illinois law. Illinois has adopted the ABA\nM odel C ode w ith no relevant amendments. S ee II0 A III. Ann. Stat. foil. I 772 (Sm ith Hurd Supp. 1983).\n2 The Suprem acy C lause provides that the \xe2\x80\x9cC onstitution, and Law s o f the U nited States which shall be made\nin P ursuance th e re o f. . shall be the supreme Law o f the Land; and the Judges in every State shall be bound\nthereby, any T hing in the C onstitution or Laws o f any State to the C ontrary notw ithstanding.\xe2\x80\x9d U.S. Const, art.\nVI, cl. 2.\n\n2\n\n\x0capplication to the present circumstances. In Part II, we address other considerations\nthat may bear upon your decision regarding the disqualification. Finally, we address\nthe application of the general principles to Department of Justice officials.\nFor the reasons discussed below, we conclude that the AUSA\xe2\x80\x99s participation\nin these obscenity prosecutions probably would not violate the mandatory\nDisciplinary Rules of the Model Code so as to justify disciplinary action by the\nArizona Bar against him. Nevertheless, we conclude that the attorney\xe2\x80\x99s duty to\npreserve client confidentiality under the Model Code could reasonably be\napplied to information that the AUSA received about A and B in the course of\nhis prior representation. In addition, we believe the Ethical Considerations of\nthe Model Code, including the requirement that attorneys avoid even the\nappearance of professional impropriety, as well as the constitutional protec\xc2\xad\ntions afforded a criminal defendant, might lead a court to bar the AUSA\xe2\x80\x99s\ninvolvement in the prosecution of individuals whose interests are so closely\nintertwined with the subject of his former professional activities. The ethical\nobligations of attorneys are only heightened in the case of a public prosecutor.\nWe therefore recommend for prudential reasons that the AUSA not participate\nin any investigations or prosecutions foreseeably involving Corporation A, Mr.\nB, or Subsidiary C that relate to his prior representation, assuming that his\nparticipation is not considered essential to the conduct of the Department\xe2\x80\x99s law\nenforcement operation, even though his disqualification may not be clearly\ncompelled by the prevailing ethics rules.\nI. Duty of Confidentiality\nThe general principles are simply stated. First, a lawyer has a duty to protect\nconfidential information of \xe2\x80\x9cone who has employed or sought to employ him.\xe2\x80\x9d\nModel Code EC 4-1 (1979). Canon 4 of the Model Code provides that \xe2\x80\x9ca\nlawyer should preserve the confidences and secrets of a client,\xe2\x80\x9d and therefore a\nlawyer may not use such confidences to the disadvantage of the client. Model\nCode DR 4-101(B)(2). This duty outlasts the lawyer\xe2\x80\x99s employment, terminat\xc2\xad\ning only upon consent of the client. Model Code EC 4-6. The current Model\nCode contains no procedural disqualification provision for one whose subse\xc2\xad\nquent employment might require disclosure of client confidences.3 Refusal of\nsuch employment is suggested in EC 4\xe2\x80\x945 as an aspirational standard only.\nNevertheless, courts have held that Canon 4 implicitly requires disqualifica\xc2\xad\ntion if divulgence of client confidences could occur.4 In order to encourage\nclients freely to discuss confidential problems with their attorneys, courts have\n3 Canon 5, w hich provides that \xe2\x80\x9ca law yer should exercise independent professional judgm ent on beh alf o f a\nclient,\xe2\x80\x9d does contain a disqualification provision. DR 5 - 105(A) requires a law yer to decline proffered\nem ploym ent if the exercise o f his independent professional judgm ent is likely to be adversely affected by a\nconflict o f interest. The purpose o f this provision is prim arily to protect the lawyer from com peting client\ninterests, rather than to protect the confidentiality o f client inform ation. A merican B ar Foundation, Annotated\nCode o f P rofessional Responsibility 228 (1979). Although the provision is arguably relevant here, its\nprincipal application is in sim ultaneous m ultiple client representation. Id.\n4 This determ ination is based, in part, on EC 4 -5 , which states that \xe2\x80\x9cno em ploym ent should be accepted that\nm ight require such disclosure [of client confidences]."\n\n3\n\n\x0cimposed a strict prophylactic rule which bars an attorney from representing an\ninterest directly adverse to that of a former client. Cord v. Smith, 338 F.2d 516,\n524-25 (9th Cir. 1964); Bicas v. Superior Court, 567 P.2d 1198, 1201 (Ariz.\nCt. App. 1977). Imposing such a disability upon the attorney is designed to\nprotect the former client from even the possibility of disclosure and wrongful\nuse of information conveyed in confidence. Meyerhofer v. Empire Fire &\nMarine Ins. Co., 497 F.2d 1190, 1196 (2d Cir.), cert, denied, 419 U.S. 998\n(1974); see also Annotation, 52 A.L.R.2d 1243, 1250 \xc2\xa7 4 (1957). In the case of\npublic prosecutors, the obligations arising out of Canon 4 of the Model Code\nmay be compounded by constitutional considerations. A prosecutor whose\nformer dealings with the defendant have made him privy to facts related to the\nprosecution may be barred from the case in order to preserve a fair and\nimpartial trial as guaranteed by the Due Process Clause of the Fifth or Four\xc2\xad\nteenth Amendment. Gajewski v. United States, 321 F.2d 261, 267 (8th Cir.\n1963); Young v. State, 111 So. 2d 345, 347 (Fla. Dist. Ct. App. 1965); People v.\nRhymer, 336 N.E.2d 203, 204 (111. App. Ct. 1975). The special status of a\nprosecutor is recognized in the Model Code: the prosecutor has an obligation\nnot merely to convict but to seek justice. Model Code EC 7-13. Accordingly,\nthe courts have developed a rule for the disqualification of prosecutors, which\nhas frequently been stated as follows: \xe2\x80\x9can attorney cannot be permitted to\nparticipate in the prosecution of a criminal case if, by reason of his professional\nrelations with the accused, he has acquired knowledge of facts upon which the\nprosecution is predicated or which are closely interwoven therewith.\xe2\x80\x9d Young v.\nState, 111 So. 2d 345, 346 (Fla. Dist. Ct. App. 1965); People v. Gerold, 107\nN.E. 165, 177 (111. 1914); State v. Leigh, 289 P.2d 774, 111 (Kan. 1955); see\nAnnotation, 31 A.L.R.3d 953, 957-58 (1970).\nThis disqualification rule rests on a generally irrebuttable presumption that\nin the course of an attomey-client relationship, confidences were disclosed to\nthe attorney by the client. A court will not inquire whether disclosures were in\nfact made or whether the attorney is likely to use confidences to the detriment\nof his former client. See, e.g., NCK Org. Ltd. v. Bregman, 542 F.2d 128, 134\n(2d Cir. 1976); Richardson v. Hamilton Int\xe2\x80\x99l Corp., 469 F.2d 1382, 1384\xe2\x80\x9485\n(3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The court\xe2\x80\x99s inquiry is limited\nsolely to whether the matters of the present proceeding are \xe2\x80\x9csubstantially\nrelated\xe2\x80\x9d to matters of the prior representation. T.C. Theater Corp. v. Warner\nBros. Pictures, 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953).\nThe courts have generally applied the disqualification rule and the presump\xc2\xad\ntion rigorously. For example, in the leading case of Ernie Industries, Inc. v.\nPatentex, Inc., 478 F.2d 562 (2d Cir. 1973), Judge Kaufman, writing for the\ncourt, held that a plaintiffs counsel in patent litigation, who had previously\nrepresented the part-owner of the defendant corporation involving an issue\nidentical to that in the present proceedings, would be disqualified from assert\xc2\xad\ning the related claim against his former client. Interpreting Canon 4, the court\nadopted the rule that \xe2\x80\x9c[w]here it can reasonably be said that in the course of\nformer representation an attorney might have acquired information related to\n4\n\n\x0cthe subject matter of his subsequent representation, the attorney should be\ndisqualified.\xe2\x80\x9d Id. at 571. The courts will not require the former client to\ndemonstrate that his attorney actually possessed confidential information in\naddition to having access to it, for even if such proof were available, the former\nclient might not be able to use it for fear of disclosing the very confidences he\nwishes to protect. See Note, Attorney\xe2\x80\x99s Conflict o f Interests: Representation of\nInterest Adverse to that o f Former Client, 55 B.U. L. Rev. 61,76 (1975); Alpha\nInv. Co. v. City of Tacoma, 536 P.2d 674, 676 (Wash. Ct. App. 1975).\nThe courts will not presume irrebuttably that an attorney has acquired\nconfidential information when the person seeking disqualification was not\nactually the attorney\xe2\x80\x99s client, but was the codefendant of a former client in the\nprior proceeding. The mere possibility that in preparing a cooperative defense\nthe attorney may have received confidences of the codefendant is insufficient\nto establish grounds for disqualification. Under these circumstances, the court\nwill disqualify the attorney only if it finds that the attorney was actually privy\nto confidential information of the former codefendant. Wilson P. Abraham\nConstr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); Fred\nWeber, Inc. v. Shell Oil Co., 432 F. Supp. 694, 697 (E.D. Mo. 1977). The\npresumption has also been found to be rebuttable in other situations in which\nthe person urging disqualification was not himself an actual client of the\nattorney. For example, a prosecuting attorney was entitled to rebut the infer\xc2\xad\nence that as a result of his former representation of the defendant\xe2\x80\x99s father-inlaw in a separate matter, he had acquired confidences or secrets related to the\ndefendant\xe2\x80\x99s case. United States v. Newman, 534 F. Supp. 1113, 1125-26\n(S.D.N.Y. 1982). These principles define the inquiry that will determine whether\nand to what extent the AUSA owes a duty to protect confidences he may have\nacquired from A and B in the course of his former representation. First, we\nmust consider whether A and B were \xe2\x80\x9cclients\xe2\x80\x9d of the AUSA and can thus claim\nthe benefit of the irrebuttable presumption that he possesses confidences of\ntheirs. Second, if A and B were not \xe2\x80\x9cclients\xe2\x80\x9d in the traditional sense of the\nword, we will examine whether they are nevertheless entitled to be protected\nby a continued obligation of confidentiality arising out of Canon 4. Finally, we\nmust determine whether there is a \xe2\x80\x9csubstantial relation\xe2\x80\x9d between the former\nobscenity representation and the prospective prosecution of A and B.\nA. Client Status o f A and B\nThe Model Code does not define the term \xe2\x80\x9cclient.\xe2\x80\x9d This omission poses\nproblems in applying the Model Code\xe2\x80\x99s provisions to the undefined relation\xc2\xad\nship that the AUSA maintained with Corporation A, Mr. B and Subsidiary C,\nwho financed and participated in the AUSA\xe2\x80\x99s representation of criminal defen\xc2\xad\ndants. \xe2\x80\x9cThe canons and disciplinary rules do not address themselves frankly\nand explicitly to this special set of relationships, and there is awkwardness in\nattempts to apply the canons and rules.\xe2\x80\x9d Moritz v. Medical Protective Co., 428\nF. Supp. 865, 872 (W.D. Wis. 1977) (referring to interrelationships among\ninsurer, insured, and attorney).\n5\n\n\x0cThis awkwardness can be alleviated somewhat by resort to analogies. Like\nthe attorney who represents both an insured and an insurer, the AUSA had\ndirect obligations to his clients XYZ, while maintaining some concomitant\nrelationship with the financiers A and B. One court, acknowledging that such a\nsituation is sui generis, held that the insurer, which chooses the attorney for the\ninsured, is the \xe2\x80\x9cclient\xe2\x80\x9d of the attorney and the attorney must observe Canon 4\nobligations to both the insurer and the insured. Id. Thus, when an insurance\npolicy imposes on the insurer the duty to defend a claim against the insured and\nentitles the insurer both to select the lawyer who will represent the insured and\nto supervise the defense, then that insurer enjoys an attomey-client relationship\nwith the attorney it selects. Id. This determination is supported by the \xe2\x80\x9ccommu\xc2\xad\nnity of interest\xe2\x80\x9d that exists between the insurer and the insured. ABA Comm,\non Professional Ethics, Formal Op. No. 282 (May 27, 1950). That interest is\nlargely financial. Moritz, 428 F. Supp. at 872.\nAn application of this analogy to the AUSA\xe2\x80\x99s case would require further\nfacts than those provided to us. It would be germane, for example, whether A\nand B had a formal agreement to pay the legal fees of XYZ; whether A and B\nhad the right to choose and supervise the attorney for the defense of XYZ; and\nwhether A and B also had agreed to pay fines or penalties imposed on XYZ, so\nas to establish a community of financial interest. Without this information, we\ncan only identify the possibility that A and B could be considered \xe2\x80\x9cclients\xe2\x80\x9d of\nthe AUSA by resort to insurance case law.\nAnother possible analogy is the relation between a parent corporation and\nthe attorney for a subsidiary corporation. Some authorities indicate that in such\na situation, the parent can be considered a client of the attorney. In one case, the\ncourt held that the evidentiary attomey-client privilege, notwithstanding the\ngeneral rule that the privilege is waived if an outsider is made privy to attomeyclient information, was preserved when an officer of the parent company\nparticipated in confidential discussions between the subsidiary and its attorney.\nIn this context, a third person who was informed in order to further the interest\nof the principal client, and to whom disclosure was \xe2\x80\x9creasonably necessary\xe2\x80\x9d to\nfurther the purpose of the legal consultation, was found a \xe2\x80\x9cclient\xe2\x80\x9d to the extent\nof preserving the privilege. Insurance Co. ofN. Am. v. Superior Court, 166 Cal.\nRptr. 880 (Ct. App. 1980). In order to apply this analogy conclusively, we\nwould again need further facts upon which to base our judgment. For example,\nit would be significant whether the communications between A and B and the\nAUSA were made to further the defense of XYZ, whether they included any\nconfidences or secrets of XYZ,5 and whether XYZ consented to such disclosures.6\n5 T he C ode defines \xe2\x80\x9cconfidences\xe2\x80\x9d as \xe2\x80\x9cinform ation protected by the attom ey-client privilege under appli\xc2\xad\ncable law s,\xe2\x80\x9d and \xe2\x80\x9c secrets\xe2\x80\x9d as \xe2\x80\x9co th er information gained in the professional relationship that the client has\nrequested b e held inviolate o r the disclosure o f which w ould be em barrassing or w ould be likely to be\ndetrim ental to the clien t.\xe2\x80\x9d M odel Code DR 4 -1 0 1 . The ethical obligations o f an attorney consequently\nencom pass not only privileged information b u t also other inform ation.\n6 If the com m unications had included confidences o r secrets, an d no consent had been given by XYZ, then\neither A o r B w ould have been included in th e client relationship, or the AUSA might have breached his\nobligation to p ro tect the confidences of XYZ u n d e r DR 4 -1 0 1 (B ).\n\n6\n\n\x0cEven without identifying a third-party payor as a \xe2\x80\x9cclient,\xe2\x80\x9d the Supreme\nCourt has recognized the danger of divided allegiance that may result from\nthird-party payment of legal fees, especially in a criminal case. In Wood v.\nGeorgia, 450 U.S. 261 (1981), the Court found an impermissible conflict of\ninterest in an attorney\xe2\x80\x99s representation of two employees of an \xe2\x80\x9cadult\xe2\x80\x9d movie\ntheater charged with distributing obscene materials. The conflict arose be\xc2\xad\ncause, under an employment agreement, the owner of the theater undertook to\nfurnish several forms of assistance to the employees if they should face legal\ntrouble as a result of their employment, including payment of legal fees, fines,\nand bonds. Id. at 266. Recognizing a significant risk that a lawyer in this\nsituation will be reluctant to encourage his client to offer testimony against the\nemployer or otherwise to take action detrimental to the employer in marshaling\na defense, the Court concluded that the employees had been deprived of due\nprocess rights. Id. at 269. Although the Court did not explicitly find that the\nemployer was itself a \xe2\x80\x9cclient\xe2\x80\x9d of the lawyer, the Court stated that the lawyer\nwas the \xe2\x80\x9cagent\xe2\x80\x9d of the employer, and thus subject to a possible conflict of\ninterest. Id. at 267; see also In re Abrams, 266 A.2d 275, 278 (N.J. 1970) (it is\n\xe2\x80\x9cinherently wrong for an attorney who represents only the employee to accept a\npromise to pay from one whose criminal liability may turn on the employee\xe2\x80\x99s\ntestimony\xe2\x80\x9d). Thus, the courts have recognized that in the criminal setting, the\nloyalty incident to a fee arrangement can be significant, although these cases do\nnot resolve whether the loyalty gives rise to a duty of confidentiality to the\nthird-party payor.7\nAlthough these examples do not resolve the AUSA\xe2\x80\x99s issue directly, they\nillustrate the possibility that persons not immediately identifiable as \xe2\x80\x9cclients\xe2\x80\x9d\nmay still be placed in a position to share some of the attributes of an attomeyclient relationship. Some authorities, in contrast, have determined that the\npayment of legal fees by a third person, in and of itself, does not create an\nattomey-client relationship between the attorney and his client\xe2\x80\x99s benefactor\nsufficient to sustain a claim of privilege for communications between them.\nPriest v. Hennessy, 409 N.E.2d 983, 987 (1980) (third party merely paid legal\nfees; court refused privilege to fact of fee arrangement); see ABA/BN A Lawyer\xe2\x80\x99s\nManual on Professional Conduct 80\xe2\x80\x944301 (1984) (submission of Maryland\nState Bar Association Committee on Ethics). Thus, the third-party payment of\nlegal fees without further participation in the defense may be insufficient to\nestablish a basis for the strict evidentiary attomey-client privilege or the more\nfluid Canon 4 relationship.\nThe determination whether A and B were, in fact, \xe2\x80\x9cclients\xe2\x80\x9d of the AUSA\nwould entail the application of facts beyond the information provided to us.\nHowever, we do not believe such a determination is necessary to reach our\nconclusion here. The Model Code and the case law have given an expansive\n7 The M odel Code discourages third-party fee arrangem ents. It perm its such an arrangem ent only with\nconsent o f the client after full disclosure, and charges the attorney w ith the responsibility to ensure that his\nindependent judgm ent is not impaired thereby. M odel Code DR 5 -1 0 7 , EC 5 -2 3 . The Model C ode does not\nmake clear, however, w hat obligations, if any, the law yer may have to those who pay his fees.\n\n7\n\n\x0cinterpretation to the attomey-client relationship in the context of Canon 4, as\ndiscussed below. In our view, they provide a sufficient basis for encompassing\nA and B within the scope of the AUSA\xe2\x80\x99s obligations of confidentiality, irre\xc2\xad\nspective of a formal attomey-client relationship.\nB. Alternative Basis fo r Obligation o f Confidentiality\nThe Model Code states clearly that the obligation of a lawyer to protect\nconfidences is broader than the scope of the evidentiary attomey-client privi\xc2\xad\nlege. Model Code EC 4\xe2\x80\x944.8 Not only does it protect a client\xe2\x80\x99s \xe2\x80\x9csecrets\xe2\x80\x9d as well\nas \xe2\x80\x9cconfidences,\xe2\x80\x9d see supra note 5, but it also is owed by the attorney to \xe2\x80\x9cone\nwho has employed or sought to employ him.\xe2\x80\x9d Model Code EC 4\xe2\x80\x941. The Model\nCode does not explain why this phrase was chosen rather than the term \xe2\x80\x9cclient.\xe2\x80\x9d\nIt is not clear whether the phrase \xe2\x80\x9cone who has employed or sought to employ\nhim\xe2\x80\x9d was intended to include one who pays the legal fees of a client, but the\neffect of the phrase is to broaden the class of individuals to be protected by the\npolicy of encouraging frank communications for preparation of an attorney\xe2\x80\x99s case.\nInterpreting the attorney\xe2\x80\x99s Canon 4 duties, courts have frequently applied the\nCanon broadly in an effort to protect the confidences of those who might not\nqualify as \xe2\x80\x9cclients\xe2\x80\x9d in the strict sense of the term: \xe2\x80\x9cThe sole requirement under\nCanon 4 is that the attorney receive the communication in his professional\ncapacity.\xe2\x80\x9d Doe v. A Corp., 330 F. Supp. 1352,1356 (S.D.N.Y. 1971), affd , 453\nF.2d 1375 (2d Cir. 1972). In addition, there is authority for the proposition that\na \xe2\x80\x9cfiduciary obligation or an implied professional relation\xe2\x80\x9d may exist in the\nabsence of a formal attomey-client relationship. Westinghouse Elec. Corp. v.\nKerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978). Thus, \xe2\x80\x9c\xe2\x80\x98[i]t is clear\nthat where an attorney receives confidential information from a person who,\nunder the circumstances, has a right to believe that the attorney, as an attorney,\nwill respect such confidences, the law will enforce the obligation of confidence\nirrespective of the absence of a formal attomey-client relationship.\xe2\x80\x99\xe2\x80\x9d United\nStates v. Newman, 534 F. Supp. 1113, 1125 (S.D.N.Y. 1982) (quoting Nicholas\nv. Village Voice, Inc., 417 N.Y.S.2d 415, 418 (Sup. Ct. 1979)).\nIn one case, the Florida District Court of Appeal found that Canon 4\nprecluded a prosecutor, who had been a member of a public defender\xe2\x80\x99s office\nthat represented the defendant, from participating in the prosecution of the case\nif he had ever interviewed the defendant in his former capacity. The court thus\ndid not invoke the irrebuttable presumption that confidences were conveyed to\nthe attorney \xe2\x80\x94 a presumption accorded only to former \xe2\x80\x9cclients\xe2\x80\x9d of an attorney\n\xe2\x80\x94 but instead permitted the defendant to establish that he had, in fact, con\xc2\xad\nveyed confidences. Without seeking to identify an \xe2\x80\x9cattomey-client\xe2\x80\x9d relation\xc2\xad\nship between the prosecutor and the accused, the court considered whether the\nprosecutor\xe2\x80\x99s former \xe2\x80\x9cprofessional relations\xe2\x80\x9d and \xe2\x80\x9cdealings\xe2\x80\x9d with the accused\n8 T he M odel R ules o f Professional Conduct explain that \xe2\x80\x9c[t]he confidentiality rule applies not merely to\nm atters com m unicated in confidence by the clien t but also to a ll inform ation relating to the representation\nRule 1.6 com m ent, 52 U .S.L .W . 6 (Aug. 16, 1983) (em phasis added).\n\n8\n\n\x0cwere sufficient to deprive the accused of a fair trial. Young v. State, 177 So. 2d\n345, 346 (Fla. Dist. Ct. App. 1965).\nThe Nebraska Supreme Court disqualified a prosecutor who had had a \xe2\x80\x9cloose\noffice arrangement and association\xe2\x80\x9d with one of the defendant\xe2\x80\x99s lawyers, even\nthough the partnership had been practically dissolved, each partner practiced\nseparately, they did not share fees, and no conversation regarding the defendant\nhad taken place between them. Again, the court did not attempt to establish the\nexistence or non-existence of an attomey-client relationship between the pros\xc2\xad\necutor and the accused. Rather, it focused on the possibility that the accused\nwas denied the impartiality to which he was entitled. Such a division of forces\nin a law office \xe2\x80\x9cwould be altogether out of harmony with the age-old ethics of\nthe profession.\xe2\x80\x9d Fitzsimmons v. State, 218 N.W. 83, 84 (Neb. 1928).\nA prosecuting attorney who represented himself over the telephone to the\ndefendant as defense counsel and induced her to impart confidential informa\xc2\xad\ntion prejudicial to her defense came \xe2\x80\x9cwithin the spirit if not the letter\xe2\x80\x9d of the\nrule against prosecuting a former client, and was consequently disqualified.\nThe court noted that had the attorney acquired the same information in the role\nof an actual defense attorney he would have been barred from prosecuting the\ndefendant. Thus, although there was no actual attomey-client relationship,\nCanon 4 was invoked. State v. Russell, 53 N.W. 441, 444 (Wis. 1892). Simi\xc2\xad\nlarly, a prosecuting attorney who, before becoming prosecutor, had met with\nthe defendant and quoted a price for representing him should have been\ndisqualified from the case on Canon 4 grounds, even though he never actually\nrepresented the defendant. Satterwhite v. State, 359 So. 2d 816, 818 (Ala.\nCrim. App. 1977). If an attorney has discussed a defendant\xe2\x80\x99s case with him, the\nattorney is thereby disqualified even if there is no contract of employment or\nattomey-client relationship. Id.\nAs discussed above, a criminal defendant who established that the prosecut\xc2\xad\ning attorney had represented his codefendant in a prior case was entitled to\ndisqualify the prosecutor if he could show that the prosecutor had obtained the\ndefendant\xe2\x80\x99s confidences as a result of the prior representation. Wilson P.\nAbraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.\n1977). The obligations of Canon 4 have therefore been extended even to one in\na collateral position with respect to the attorney and his principal client. In each\nof these cases, despite the absence of an attomey-client relationship, the\nattorney was barred from representing an interest that would risk disclosure of\ninformation confided in the attorney by a person whom the court found to fall\nwithin the ambit of the non-disclosure policy.\nThe rule is perhaps better illustrated by the cases in which the relation\nbetween the attorney and the defendant was held to be too attenuated to require\nautomatic disqualification from the subsequent matter. From those decisions a\ncommon principle emerges: when the attomey-client relationship is not direct,\nthe attorney will be permitted to prosecute the case only if he could not possibly\nhave gained confidential information regarding it. See, e.g., Gajewski v. United\nStates, 321 F.2d 261, 268 (8th Cir. 1963) (no disqualification from criminal\n9\n\n\x0cprosecution on account of prior civil representation because misuse of confi\xc2\xad\ndential information inconceivable); Dunn v. State, 264 So. 2d 823, 825 (Miss.\n1972) (no disqualification on account of prior discussion with defendant re\xc2\xad\ngarding possible representation, because facts of case never discussed); Autry\nv. State, 430 S.W.2d 808, 810 (Tenn. Crim. App. 1967) (same; no confidential\ncommunication passed between attorney and accused); State v. Henry, 9 So. 2d\n215, 217 (La. 1942) (no disqualification on account of discussion with\ndefendant\xe2\x80\x99s relatives; trial court found attorney had \xe2\x80\x9cno information of any\nkind from the defendant or anyone else\xe2\x80\x9d regarding case). These opinions\nappear to recognize that the evil to be avoided by a decision to disqualify is the\npotential misuse of confidential information, or the appearance thereof. If the\ncourt is satisfied that no such information was acquired, disqualification will\nnot be ordered.\nIn light of these elaborations upon the ethical duties of an attorney, we\nconclude, first, that any communications that took place between A and B and\nthe AUSA would appear to fall within the general policy of Canon 4. \xe2\x80\x9cA\ncommunication must be regarded as confidential where it possibly is so,\nalthough it is not entirely clear that the relations exist.\xe2\x80\x9d H. Drinker, Legal\nEthics 134 (1980). Information imparted to an attorney by his client\xe2\x80\x99s benefac\xc2\xad\ntor for the purpose of assisting in the client\xe2\x80\x99s defense is part of the overall\nattomey-client channel of communication that Canon 4 is designed to foster.\nBecause \xe2\x80\x9cthe issue is .. . whether there exist sufficient aspects of an attomeyclient relationship for purposes o f triggering inquiry into the potential con\xc2\xad\nflict,\xe2\x80\x9d Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748\xe2\x80\x9449 (2d Cir. 1981),\nwe believe that the precise circumstances under which A and B communicated\nto the AUSA are a critical element of the inquiry. Even if the communications\nbetween the AUSA and A and B could not be shielded in a court proceeding by\nthe privilege reserved for only a limited class of attomey-client conversations,\nif these communications were reposed in an attorney acting in his professional\ncapacity in the defense of a client, then they should be protected. Second, if\nconfidences were conveyed to the AUSA, he could not claim the benefit of the\ncase law in which the courts found that it was impossible for the attorney to\nhave acquired confidential information under the circumstances.\nCanon 4 analysis is unaffected by the possibility that all the information the\nAUSA acquired about A and B may already be known independently by other\ninvestigative and prosecutive officials. The Model Code itself emphasizes that\nthe ethical obligation of a lawyer to guard confidences and secrets, \xe2\x80\x9cunlike the\nevidentiary privilege, exists without regard to the nature or source of informa\xc2\xad\ntion or the fact that others share the knowledge." Model Code EC 4-4 (empha\xc2\xad\nsis added). The ethical precept is not nullified even if all confidential informa\xc2\xad\ntion to which a lawyer had access is independently known to others from any\nsource. NCK Org. Ltd. v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). On\nbalance, therefore, we believe the better course is for the AUSA to observe the\nobligations of Canon 4 with respect to any confidences and secrets of A and B\nthat he acquired in his role as defense attorney.\n10\n\n\x0cC. Substantial Relation Between Former and Subsequent Matters\nThe third aspect of a disqualification analysis seeks to ascertain whether the\nmatter of former representation is \xe2\x80\x98\xe2\x80\x9c substantially related\xe2\x80\x99 to the issues likely to\narise during the course of the litigation.\xe2\x80\x9d Redd v. Shell Oil Co., 518 F.2d 311,\n315 (10th Cir. 1975). In the present case, we must determine whether the\nrepresentation of XYZ and the involvement of A and B in the obscenity cases\nare so closely connected with the prospective prosecution of A and B on\ncharges of conspiracy to commit obscenity-related offenses that confidences\nmight be jeopardized. See Richardson v. Hamilton Int\xe2\x80\x99l Corp., 469 F.2d 1382,\n1385 (3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The requisite substanti\xc2\xad\nality is present if the factual contexts of the two matters are similar and if there\nis reasonable probability that confidences were disclosed which could be used\nagainst the client. Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980).\nThe courts have employed the \xe2\x80\x9csubstantial relation\xe2\x80\x9d test as a further means\nto ensure the protection of client confidences. Duncan v. Merrill Lynch, Pierce,\nFenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981); American Roller\nCo. v. Budinger, 513 F.2d 982, 984 (3d Cir. 1975). The overlap of subject\nmatters, issues, and other facts between the two representations must be delin\xc2\xad\neated with specificity to allow for the careful comparison that the rule requires.\nDuncan, 646 F.2d at 1029. It is clear that the inquiry is meticulously factual;\n\xe2\x80\x9cmerely pointing to a superficial resemblance\xe2\x80\x9d is insufficient. Id.\nApplying that principle to the AUSA\xe2\x80\x99s situation, we believe there may well\nexist a substantial relation between the information acquired in the course of\nrepresenting XYZ on obscenity charges and a conspiracy prosecution of A and\nB for obscenity-related activities. However, we do not have sufficient facts\nabout the two prosecutions to draw the fine lines required by the cases. The\ndetermination whether there is a substantial relation must be made with a full\nknowledge of the two matters, and the knowledge we have acquired is limited.\nAlthough the prospective prosecutions of A and B are presumably distinct from\nthose of XYZ, it appears that the overall business operation which is the target\nof investigation involves facts common to the two. The AUSA has stated that\nthe information he reviewed in FBI files regarding A and B \xe2\x80\x9cfar exceeds\xe2\x80\x9d any\nknowledge he may have acquired from his representation of XYZ, not that it is\nunrelated or qualitatively different. The sexually explicit materials that clients\nXYZ were charged with displaying were supplied by A and B, so that facts\nrelating to the publications themselves would likely overlap. In addition, the\nbasic legal obscenity issues are likely to be very similar.9 Moreover, the scope\nof the proposed investigation as described is evidently quite broad. At least in\ntheory, it is possible that the investigation could eventually lead to involvement\nof the AUSA\xe2\x80\x99s \xe2\x80\x9cconspiracy\xe2\x80\x9d objective, and we believe the possibility that\nclients XYZ could be implicated in such a conspiracy sharpens the substantial\nrelation between the matters. Of course, if XYZ were implicated, everything\n9 Even if the prosecutions o f XY Z w ere brought under state law and the proposed conspiracy charges will\nbe based on federal law, there would undoubtedly be a significant sim ilarity o f legal issues.\n\n11\n\n\x0cwe have discussed regarding the AUSA\xe2\x80\x99s duties to A and B would apply a\nfortiori to XYZ, with whom he maintained a formal attomey-client relation\xc2\xad\nship. We believe, therefore, that very careful consideration must be given to\nwhether a court would find a substantial relation between the former represen\xc2\xad\ntation of XYZ (with assistance from A and B) and the current investigation or\nprosecution of A and B.\nWe reiterate the general rule: \xe2\x80\x9can attorney cannot be permitted to participate\nin the prosecution of a criminal case if, by reason of his professional relations\nwith the accused, he has acquired knowledge of facts upon which the prosecu\xc2\xad\ntion is predicated or which are closely interwoven therewith.\xe2\x80\x9d Although we are\nnot in possession of enough facts to apply these words conclusively to the\npresent situation, we believe that a court would likely find that \xe2\x80\x9cby reason of\nhis professional relations,\xe2\x80\x9d the AUSA has acquired knowledge of facts \xe2\x80\x9cwhich\nare closely interwoven\xe2\x80\x9d with the prospective prosecution. If such a finding\ncould be made on these facts, no more concrete predicate would be required to\nindicate the need for disqualification of a criminal prosecutor.\n\nII. Other ComsntJeraitioinis\nA. Appearance o f Impropriety\nCanon 9 of the Code imposes upon attorneys an obligation to avoid even the\nappearance of professional impropriety. Model Code DR 9-101; EC 9-6. One\ncommentator has gone so far as to urge that this canon be used to disqualify\nattorneys even when the connection between former and subsequent represen\xc2\xad\ntations is not great enough to satisfy the substantial relation test of Canon 4. See\nNote, Ethical Considerations When an Attorney Opposes a Former Client: The\nNeed fo r a Realistic Application o f Canon Nine, 52 Chi.-Kent L. Rev. 525,\n535-37 (1975).\nIn Rodriguez v. State, 628 P.2d 950, 957 (Ariz. 1981), the Arizona Supreme\nCourt took this approach and held that a public defender did not violate the\nDisciplinary Rule when he failed to withdraw from representation of a defen\xc2\xad\ndant whose defense could have implicated a former client of the office. Canon\n9 required disqualification of the attorney, however, because there was an\nunavoidable appearance that confidential information gained from the former\nclient could be used to his disadvantage. Some courts have declined to adopt\nthis \xe2\x80\x9cblanket approach\xe2\x80\x9d to Canon 9. See, e.g., Silver Chrysler Plymouth, Inc. v.\nChrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975) (Canon 9 \xe2\x80\x9cnot\nintended completely to override the delicate balance created by Canon 4\xe2\x80\x9d);\nBoard ofEduc. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979) (\xe2\x80\x9c[W]hen there\nis no claim that the trial will be tainted, appearance of impropriety is simply too\nslender a reed on which to rest a disqualification order except in the rarest\ncases.\xe2\x80\x9d). More often, courts will decide a disqualification issue on the basis of\nCanons 4 and 9 in combination, and Canon 9 generally serves to resolve any\ndoubts in favor of disqualification. See Model Code EC 9-2.\n12\n\n\x0cB. Possible Effects o f Failure to Disqualify\nThe possible adverse consequences of participation in this matter are varied.\nFirst, the AUSA could be found to have violated the Disciplinary Rule prohib\xc2\xad\niting disclosure of client confidences. In our opinion, however, his involvement\nwould not fall strictly within the letter of the Disciplinary Rules so as to\nwarrant a finding of violation. The ambiguity of A and B\xe2\x80\x99s \xe2\x80\x9cclient\xe2\x80\x9d status,\nwhile not automatically obviating the necessity for disqualification, would\nlessen the likelihood that a court would impose disciplinary sanctions in this\nunique situation without some showing of intentional wrongdoing. Cf. In re\nRujfalo, 390 U.S. 544, 550 (1968) (lawyer facing penalty of disbarment is\nentitled to due process protections). To justify discipline against an attorney, a court\nmust be satisfied by clear and convincing evidence that the attorney has violated one\nor more of the Disciplinary Rules. In re Mercer, 652 P.2d 130, 133 (Ariz. 1982).\nBecause transgression of a prophylactic rule does not necessarily connote any actual\nwrongdoing, and because there is no clear requirement of withdrawal under these\ncircumstances in the Disciplinary Rules themselves, we believe a court would not\nfind intentional misconduct sufficient to justify professional censure.\nProfessional discipline is not the only possible consequence of an erroneous\ndecision to participate in the case, however. Even if conduct were insufficient\nto support an ethical violation, it could still require the attorney\xe2\x80\x99s disqualifica\xc2\xad\ntion from a particular matter. The vast majority of criminal cases in which\ndisqualification was required have not resulted in disciplinary action against\nthe attorney. Rather, courts have granted reversals of convictions on the ground\nthat the defendant was denied a fair trial. See, e.g.. State v. Leigh, 289 P.2d 774,\n111 (Kan. 1955) (reversal although no claim of intentional misconduct by the\nattorney); People v. Rhymer, 336 N.E.2d 203, 205 (111. Ct. App. 1975) (same).\nA federal court dismissed an indictment because the prosecutor who presented\nthe case to the grand jury had had impermissible professional dealings with the\naccused. United States v. Catalanotto, 468 F. Supp. 503, 507 (D. Ariz. 1978).\nAlthough there is a paucity of federal cases involving the issue of disqualifica\xc2\xad\ntion of a prosecuting attorney on these grounds, in analogous state cases the\nprosecutor\xe2\x80\x99s relation to the accused has been the basis for post-conviction\nrelief, see Young v. State, 111 So. 2d 345, 348 (Fla. Dist. Ct. App. 1965), a new\ntrial, see State v. Halstead, 35 N.W. 457, 459 (Iowa 1887), recusal orders, see\nLove v. Superior Court, 168 Cal. Rptr. 577,581 (Ct. App. 1980) (recusal order\nfor discrete six-person section of district attorney\xe2\x80\x99s office \xe2\x80\x9ctainted\xe2\x80\x9d by former\nrepresentation), and mistrials, see Burkett v. State, 206 S.E.2d 848, 851 (Ga.\n1974) (reversible error for trial court merely to disqualify prosecutor without\ngranting mistrial). In sum, the prosecuting attorney who approaches the ethical\nstandards too lightly risks not only professional censure but also the loss or\npostponement of a conviction.\nC. Vicarious Disqualification\nUnder the Model Code, \xe2\x80\x9cif a lawyer is required to decline employment or\nwithdraw from employment under a Disciplinary Rule, no partner, or associ\xc2\xad\n13\n\n\x0cate, or any other lawyer affiliated with him or his firm, may accept or continue\nsuch employment.\xe2\x80\x9d Model Code DR 5-105(D) (emphasis added).10This impo\xc2\xad\nsition of a disability upon the entire \xe2\x80\x9cfirm\xe2\x80\x9d \xe2\x80\x94 a term not defined in the Model\nCode11 \xe2\x80\x94 is referred to as \xe2\x80\x9cvicarious disqualification\xe2\x80\x9d or \xe2\x80\x9cimputed knowl\xc2\xad\nedge.\xe2\x80\x9d Its rationale is, once again, the possibility that confidential information\npossessed by an attorney will filter out to others who could use it to the\ndisadvantage of a client.\nAuthorities disagree regarding whether the imputation of knowledge from\none member of a firm to the others should be extended to non-profit organiza\xc2\xad\ntions such as legal services agencies and prosecutors\xe2\x80\x99 offices. The imposition\nof vicarious disqualification is premised, in part, upon the community of\neconomic interests among members of a firm who share profits, and those\ninterests are not present in public offices. American Bar Foundation, Annotated\nCode o f Professional Responsibility 249 (1979) (Comment on DR 5-105(D));\nABA Formal Op. 342 (Nov. 24, 1975), reprinted in 62 A.B.A. J. 517 (1976).\nRecognizing these differences, many courts have declined to apply the\nvicarious disqualification rule devised for civil firms to nonprofit legal organi\xc2\xad\nzations, including prosecutors\xe2\x80\x99 offices. They reason that the premise of the\nrule, the free flow of information within a law partnership, is not presumptively\napplicable outside the partnership context. See, e.g., United States v. Standard\nOil Co., 136 F. Supp. 345, 360 (S.D.N.Y. 1955); In re Charles Willie L., 132\nCal. Rptr. 840, 843 (Ct. App. 1976). Other courts recognize that \xe2\x80\x9cparticular\ncaution is in order before an entire prosecutorial office, as distinguished from a\nparticular prosecutor in that office, is recused.\xe2\x80\x9d Chadwick v. Superior Court,\n164 Cal. Rptr. 864, 867 (Ct. App. 1980). The United States District Court for\nthe District of Arizona disqualified a member of the United States Attorney\xe2\x80\x99s\noffice who had represented the defendant in a substantially related matter to\navoid the appearance of impropriety, and took the further step of disqualifying\nthe Tucson office of the United States Attorney. It denied, however, the motion\nto disqualify the entire district office, expressing the view that the prosecution\ncould properly be conducted by the larger Phoenix office, on the rationale that\nthe size and complexity of substantial governmental agencies makes imputa\xc2\xad\ntion of knowledge impossible. United States v. Catalanotto, 468 F. Supp. 503,\n506 (D. Ariz. 1978).\nOn the whole, the weight of national authority appears to reject recusal of an\nentire prosecutorial office. See Chadwick, 164 Cal. Rptr. at 871 (canvassing\njurisdictions). Federal courts are particularly reluctant to order disqualification\n\n10 A s adopted by A rizona, however, DR 5 - 1 05(D ) has a different scope. It appears to require vicarious\nd isq u alificatio n only w hen an attorney has b een recused because o f a conflict o f interest (Canon S) rather than\nthe risk o f disclosing clien t confidences (C anon 4). 17A Ariz. Rev. Stat. Ann., S. Ct. Rule 29(a), DR 5 105(D) (1983 Supp.)- T here is as yet no case law explaining the difference in application between the Model\nC ode and the A rizona am endm ent.\n11 T h e M odel R ules o f Professional C onduct define \xe2\x80\x9cfirm " as including \xe2\x80\x9c lawyers in a private firm , and\nlaw yers em ployed in the legal department o f a corporation o r other organization, or in a legal services\norgan izatio n .\xe2\x80\x9d Rule 1.10 com m ent, 52 U.S.L.W . 9 (Aug. 16, 1983).\n\n14\n\n\x0cof an entire United States Attorney\xe2\x80\x99s office. For example, a district court\ngranted a motion to disqualify an entire United States Attorney\xe2\x80\x99s office on th\xc2\xa3\nground that one of several defendants had been represented by one of the\ncurrent Assistant United States Attorneys. The Sixth Circuit reversed, holding\nthat the vicarious disqualification rule of DR 5-105(D) is \xe2\x80\x9cinapplicable to other\ngovernment lawyers associated with a particular government lawyer who is\nhimself disqualified by reason of DR 4-101 . . . or similar disciplinary rules.\xe2\x80\x9d\nUnited States v. Caggiano, 660 F.2d 184, 191 (6th Cir. 1981) (quoting ABA\nFormal Op. 342), cert, denied, 455 U.S. 945 (1982). As explained by thenDistrict Judge Kaufman in United States v. Standard Oil Co., 136 F. Supp. 345,\n363 n.34 (S.D.N.Y. 1955):\n[T]he hands of government cannot be tied because of the former\nassociations of one of its officials; therefore, that top person\ndisqualifies himself from handling that particular matter, and\nthe conflict of interest question is considered resolved. Simi\xc2\xad\nlarly, the particular lower ranking attorney disqualifies himself\nand another attorney handles the matter. No such opportunity is\ngiven to one partner in a law firm to disqualify himself and\nqualify the firm. The only explanation for the difference in\nresult is that the practical exigencies are more compelling in the\nformer situation than the latter. This is another illustration of the\nfact that ethical problems cannot be viewed in a vacuum; practi\xc2\xad\ncal, everyday facts of life must be considered.\nThe Department would vigorously oppose any attempt to disqualify an entire\nUnited States Attorney\xe2\x80\x99s office on the basis of a past professional affiliation of\none of its assistants because of the extreme interference such a recusal order\nwould cause with the Department\xe2\x80\x99s ability to carry out its prosecutorial func\xc2\xad\ntions. This position finds support in the ABA\xe2\x80\x99s new Model Rules of Profes\xc2\xad\nsional Conduct. Those rules specifically prohibit a lawyer who is a public\nofficer from participating \xe2\x80\x9cin a matter in which the lawyer participated person\xc2\xad\nally and substantially while in private practice or nongovernmental employ\xc2\xad\nment, unless under applicable law no one is, or by lawful delegation may be,\nauthorized to act in the lawyer\xe2\x80\x99s stead in the matter.\xe2\x80\x9d Rule 1.11(c)(1), 52\nU.S.L.W. 11 (Aug. 16, 1983). The comment states clearly that the paragraph\n\xe2\x80\x9cdoes not disqualify other lawyers in the agency with which the lawyer in\nquestion has become associated.\xe2\x80\x9d Id.\nAlthough we would take the position that a court should not disqualify the\nentire office, we would urge the AUSA to observe the restrictions upon\ncommunicating with others that underlie the vicarious disqualification rule.\nWe have been told that the AUSA has reviewed FBI files regarding A and B.\nWe have no facts to indicate that he may have discussed confidential informa\xc2\xad\ntion with other members of the staff, but we underscore the importance of not\nassisting in the case once a decision to disqualify has been made.\n15\n\n\x0cIH. Application off Camera 4 to Federal Officials\nSeveral sources of authority could be viewed as imposing on the AUSA or\nother Department of Justice attorneys the obligations of Canon 4 discussed\nabove. As members of the bar o f a state or the District of Columbia,12 Depart\xc2\xad\nment lawyers may be subject to the ethical standards of the state bars, including\nCanon 4. Both Arizona and Illinois have adopted the Model Code. See supra\nnote 1 and accompanying text. In addition, as representatives of the United\nStates in litigation, Department lawyers may be subject to Canon 4 or a similar\nrule as adopted by the federal district courts as local rules. The local rules of the\nUnited States District Court for the District of Arizona, for example, provide\nthat \xe2\x80\x9cthe Code of Professional Responsibility, as set forth in Rule 29(a) of the\nRules of the Supreme Court o f the State of Arizona, shall apply to court\nproceedings in the United States District Court for the District of Arizona.\xe2\x80\x9d D.\nAriz. R. 7(d) (1982). Finally, the Department\xe2\x80\x99s Standards of Conduct exhort\nDepartment attorneys to use the Model Code as a source of \xe2\x80\x9cguidance\xe2\x80\x9d for their\nconduct. 28 C.F.R. \xc2\xa7 45.735-1. Although we have never read this provision in\nthe Standards of Conduct to impose upon the Department\xe2\x80\x99s lawyers obligations\nthat are not fully consistent with the performance of their official responsibili\xc2\xad\nties, we must anticipate that the organized bar or the federal courts or both may\nattempt to impose the restrictions of Canon 4 even in situations where we would not.\nThe imposition of conduct regulations by a state court or bar association\nupon federal lawyers acting in the scope of their federal authority must be\nassessed in light of the Supremacy Clause of the Constitution. See supra note 2.\nThe activities of the Federal government are presumptively free from state\nregulation, unless Congress has clearly authorized state regulation in a specific\narea. See Hancock v. Train, 426 U.S. 167 (1976). In the area of professional\nconduct, Congress has directed that Justice Department attorneys must be\nlicensed and authorized to practice under the laws of a State, territory, or the\nDistrict of Columbia. See supra note 12. In prior interpretations of that require\xc2\xad\nment, this Department has been willing to assume that Congress \xe2\x80\x9cintended that\nthe attorneys would be subject to reasonable conditions of continued bar\nmembership where those conditions are not inconsistent with the requirements\nor exigencies of federal employment,\xe2\x80\x9d and that Congress could reasonably\nhave intended federal employees to be subject to \xe2\x80\x9creasonable and established\nethical rules for the bar generally.\xe2\x80\x9d See Memorandum of the Department of\nJustice, Re: \xe2\x80\x9cIn the Matter of the Petition of the Board of Governors of the\nDistrict of Columbia Bar,\xe2\x80\x9d at 5 (Sept. 11, 1979). Nonetheless, bar rules that are\ninconsistent with the requirements or exigencies of federal service may also\noffend the Supremacy Clause.\n12 D epartm ent o f Justice authorization and appropriations statutes routinely provide that the D epartm ent\'s\nfunds may not be used to pay the com pensation o f any person em ployed as an attorney unless that person is\nduly licen sed and authorized to practice as an attorney under the law s of a state, territory, or the D istrict of\nC olum bia. See, e.g.. Pub. L. No. 96-132, \xc2\xa7 3 (a), 93 Stat. 1040, 1044 (1979); Pub. L. No. 95-624, \xc2\xa7 3(a), 92\nStat. 3459, 3462 (1978); Pub. L. No. 95-86, \xc2\xa7 202, 91 Stat. 419, 428 (1977); see also Pub L. No. 9 8 ^ 1 1 ,\n\xc2\xa7 2 03(a), 98 Stat. 1545, 1558-59 (1984) (continuing the requirem ent of \xc2\xa7 3(a) o f Pub. L. No. 96-132).\n\n16\n\n\x0cWhether the limitations of Canon 4, as imposed by a state bar, are a\nsignificant enough intrusion into the authorized functions of this Department to\noffend the Supremacy Clause would depend on the circumstances of the\nAUSA\xe2\x80\x99s case. On the one hand, there is the arguable congressional authoriza\xc2\xad\ntion for at least some state professional regulation of Department lawyers as\nevinced by the language in the Department\xe2\x80\x99s authorization statutes. In addition,\nthe attorney\xe2\x80\x99s obligation to preserve client confidences traces its roots far\nbeyond the Model Code of Professional Responsibility, and may have implica\xc2\xad\ntions for the due process rights of the criminal defendant. Further, the\nDepartment\xe2\x80\x99s own regulations permit an employee\xe2\x80\x99s supervisor to relieve an\nemployee from participation in a criminal investigation or prosecution if he\ndetermines that a personal relationship exists between the employee and a\nperson or organization that is substantially involved or has specific and sub\xc2\xad\nstantial interest in the matter. 28 C.F.R. \xc2\xa7 45.735-4. The Department\xe2\x80\x99s own\npractice, therefore, supports observance of the ethical guidelines in this instance.\nOn the other hand, the Department has a strong interest in pursuing its\nprosecutions free from interference from any other governmental entity, state\nor federal. The strength of this interest would depend upon the need for the\nAUSA\xe2\x80\x99s services in this particular operation. That he was hired as a Special\nAssistant United States Attorney for the purpose of prosecuting alien cases\nwould suggest that his services in the obscenity prosecution are not indispens\xc2\xad\nable. This is a determination that must be made by officials more familiar than\nwe are with the circumstances of this particular investigation.\nOn balance, we believe that generally the extension of the Canon 4 obliga\xc2\xad\ntions to individuals who were not \xe2\x80\x9cclients\xe2\x80\x9d in the strict sense of the word would\nnot be in the Department\xe2\x80\x99s interest. We believe in this case, however, that very\ncareful thought should be given to the broad application that courts have given\nto the Canon 4 principles and a determination made regarding the relevance of\nthose interpretations to the AUSA\xe2\x80\x99s situation. We believe the broad construc\xc2\xad\ntion of Canon 4 is not binding on the Department, assuming some overriding\ninterest on the other side, but that as a prudential matter, the better course may\nbe to protect the integrity of the prosecution by removing the AUSA from the\ncase. Although we can appreciate the AUSA\xe2\x80\x99s interest in participating in the\ncase, we think that under these facts it would be reasonable, if perhaps incor\xc2\xad\nrect, for the public or the defendants to question the AUSA\xe2\x80\x99s capacity for\nindependent judgment or his ability to preserve the confidences he may have\nobtained as a defense attorney. As we have emphasized, however, this decision\nshould be made by Department officials who are in possession of more detailed\nfacts than we have been given and who are in a position to judge the AUSA\xe2\x80\x99s\nimportance to the investigation and prosecution of these obscenity cases.\nConclusion\nThe many considerations, discussed above, that bear upon a disqualification\nunder these circumstances have led us to conclude that the AUSA probably\n17\n\n\x0cshould not participate either in counseling agents involved in the investigation\nof A and B or in the prosecution of A and B. The relationship between the\nAUSA and A and B may not be close enough to establish that his participation\nin the case would violate the Disciplinary Rule prohibiting the disclosure of\nclient confidences. However, it may nevertheless be sufficient to deprive A and\nB of a fair trial or to create an appearance of impropriety. We cannot conclude\nthat, as a matter of law, the AUSA\xe2\x80\x99s participation in the case could not provide\na ground for a disqualification order or an eventual attack upon any convictions\nobtained. As a prudential matter, we therefore recommend that he disqualify\nhimself from the case.\nR obert B. Shanks\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n18\n\n\x0c'


b'Placing of United States Armed Forces Under United Nations\nOperational or Tactical Control\nProposed funding restriction generally prohibiting the President from placing United States Armed\nForces under the operational or tactical control o f the United Nations in U.N. peacekeeping oper\xc2\xad\nations would unconstitutionally constrain the President\xe2\x80\x99s exercise of his authority as Commanderin-Chief and unconstitutionally undermine the President\xe2\x80\x99s constitutional authority with respect to\nthe conduct o f diplomacy.\nGranting the President the authority to waive the prohibition if he provides a certification and report\nto Congress would not remove the funding restriction\xe2\x80\x99s constitutional defect, because Congress\ncannot burden or infringe the President\xe2\x80\x99s exercise o f a core constitutional power by attaching condi\xc2\xad\ntions precedent to the exercise of that power.\n\nMay 8, 1996\nM e m o r a n d u m O p in io n\n\nfo r t h e\n\nL e g a l A d v is e r\n\nS p e c ia l A s s is t a n t\n\nt o the\n\nto the\n\nP r e s id e n t\n\nand\n\nN a t io n a l S e c u r it y C o u n c il\n\nThis memorandum responds to your request for our views as to the constitu\xc2\xad\ntionality of H.R. 3308, 104th Cong. (1996), a bill that would limit the President\xe2\x80\x99s\nability to place United States armed forces under the United Nations\xe2\x80\x99 (\xe2\x80\x9c U.N.\xe2\x80\x9d )\noperational or tactical control.\nSection 3 of H.R. 3308 would add a new section 405 to chapter 20 of title\n10, United States Code, to read as follows:\nExcept as provided in subsections (b) and (c), funds appropriated\nor otherwise made available for the Department of Defense may\nnot be obligated or expended for activities of any element of the\narmed forces that after the date of the enactment of this section\nis placed under United Nations operational or tactical control, as\ndefined in subsection (0Proposed subsection 405(f) provides that elements of the armed forces shall\nbe considered to be placed under U.N. operational or tactical control if they are\nunder the operational or tactical control of an individual who is acting on behalf\nof the U.N. in a peacekeeping, peacemaking or similar activity, and if the senior\nmilitary commander of the U.N. force or operation is either a foreign national\nor a U.S. citizen other than an active duty U.S. military officer.\nProposed section 405 thus bars the President from placing U.S. armed forces\nparticipating in U.N. peacekeeping operations under the U.N. operational or tac\xc2\xad\ntical control, as so defined.\n182\n\n\x0cPlacing o f United States Armed Forces Under United Nations Operational or Tactical Control\n\nTwo subsections set out exceptions to the prohibition.1 Subsection 405(c) pro\xc2\xad\nvides that the limitation does not apply if Congress specifically authorizes a par\xc2\xad\nticular placement of U.S. forces under U.N. operational or tactical control, or if\nthe U.S. forces involved in a placement are participating in operations conducted\nby the North Atlantic Treaty Organization.\nSubsections 405(b) and (d) together provide that the President may waive the\nlimitation if he certifies to Congress fifteen days in advance of the placement\nthat it is \xe2\x80\x9c in the national security interests of the United States to place any ele\xc2\xad\nment of the armed forces under United Nations operational or tactical control,\xe2\x80\x9d\nand provides a detailed report setting forth specific items of information within\neleven distinct categories.2 If the President certifies that an \xe2\x80\x9c emergency\xe2\x80\x9d pre\xc2\xad\ncluded compliance with the fifteen day limitation, he must make the required cer\xc2\xad\ntification and report in a timely manner, but no later than forty-eight hours after\na covered operational or tactical control is initiated.\nThe proposed amendment unconstitutionally constrains the President\xe2\x80\x99s exercise\nof his constitutional authority as Commander-in-Chief. Further, it undermines his\nconstitutional role as the United States\xe2\x80\x99 representative in foreign relations. While\n\xe2\x80\x9c [t]he constitutional power of Congress to raise and support armies and to make\nall laws necessary and proper to that end is broad and sweeping,\xe2\x80\x9d United States\nv. O \xe2\x80\x99Brien, 391 U.S. 367, 377 (1968), Congress may not deploy that power so\nas to exercise functions constitutionally committed to the Executive alone, for\nthat would \xe2\x80\x9c pose a \xe2\x80\x98danger of congressional usurpation of Executive Branch func\xc2\xad\ntions.\xe2\x80\x99 \xe2\x80\x9d Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bowsher v. Synar,\n478 U.S. 714, 727 (1986)). Nor may Congress legislate in a manner that\n\xe2\x80\x9c \xe2\x80\x98impermissibly undermine[s]\xe2\x80\x99 the powers of the Executive Branch, [Commodity\nFutures Trading Com m \xe2\x80\x99n v.] Schor, [478 U.S. 833 (1986)] at 856, or \xe2\x80\x98disrupts\nthe proper balance between the coordinate branches [by] preventing] the Execu\xc2\xad\ntive Branch from accomplishing its constitutionally assigned functions,\xe2\x80\x99 Nixon v.\nAdministrator o f General Services, [433 U.S. 425 (1977)] at 433.\xe2\x80\x9d M orrison, 487\n1There is also an exception made for ongoing operations in Macedonia and Croatia.\n2 As detailed in subsection 405(d), the report must include eleven distinct elements. It must set forth: (1) a descrip\xc2\xad\ntion o f the national security interests that would be served by the troop placement; (2) the mission of the U.S.\nforces involved; (3) the expected size and composition o f the U S. forces involved; (4) the precise command and\ncontrol relationship between the U.S. forces involved and the U.N. command structure; (5) the precise command\nand control relationship between the U.S. forces involved and the commander o f the U.S. unified command for\nthe region in which those U.S. forces are to operate; (6) the extent to which the U.S. forces involved will rely\non other nations* forces for security and defense and an assessment o f the capability of those foreign forces to\nprovide adequate security to the U.S. forces involved; (7) the exit strategy for complete withdrawal of the U.S.\nforces involved; (8) the extent to which the commander o f any unit proposed for the placement would at all times\nretain the rights to report independently to superior U.S. military authorities and to decline to comply with orders\njudged by that commander to be illegal o r beyond the mission\'s mandate until such time as that commander has\nreceived direction from superior U.S. military authorities; (9) the extent to which the United States retains the author\xc2\xad\nity to withdraw any element o f the armed forces from the proposed operation at any time and to take any action\nit considers necessary to protect those forces if they are engaged; (10) the extent to which the U.S. forces involved\nwill be required to wear as part o f their uniform a device indicating U.N. affiliation; and (11) the anticipated m onthly\nincremental cost to the United States o f participation in the U.N. operation by U.S. forces proposed to be placed\nunder U.N. operational or tactical control.\n\n183\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nU.S. at 695. Even though there are areas in which both Congress and the President\nhave a constitutional voice, and in which Congress, therefore, may rely on its\nown constitutional authority to seek to guide and constrain presidential choices,\nit may not impose constraints in the areas that the Constitution commits exclu\xc2\xad\nsively to the President. See, e.g., Letter for Richard Darman, Director, Office of\nManagement and Budget, from Bruce Navarro, Deputy Assistant Attorney Gen\xc2\xad\neral, Office of Legislative Affairs (Feb. 2, 1990) (finding provision of Foreign\nRelations Authorization Act, Fiscal Years 1990 and 1991, Pub. L. No. 101-246,\n104 Stat. 15 (1990), limiting President\xe2\x80\x99s ability to receive spies as ambassadors,\nunconstitutional even though President could waive limitation if it was in the na\xc2\xad\ntional security interests of the United States to do so).\nArticle II, Section 2, of the Constitution declares that the President \xe2\x80\x9c shall be\nCommander in Chief of the Army and Navy of the United States.\xe2\x80\x9d Whatever\nthe scope of this authority in other contexts, there can be no room to doubt that\nthe Commander-in-Chief Clause commits to the President alone the power to se\xc2\xad\nlect the particular personnel who are to exercise tactical and operational control\nover U.S. forces. See Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (\xe2\x80\x9c As\ncommander-in-chief, [the President] is authorized to direct the movements of the\nnaval and military forces placed by law at his command, and to employ them\nin the manner he may deem most effectual . . . .\xe2\x80\x9d ). Indeed, the major object\nof the Clause is to \xe2\x80\x9c vest in the President the supreme command over all the\nmilitary forces, \xe2\x80\x94 such supreme and undivided command as would be necessary\nto the prosecution of a successful war.\xe2\x80\x9d United States v. Sweeny, 157 U.S. 281,\n284, (1895); see also Nordmann v. W oodring, 28 F. Supp. 573, 578 (W.D. Okla.\n1939) (\xe2\x80\x9c [A]s Commander in Chief, the President has the power to employ the\nArmy and the Navy in a manner which he may deem most effectual.\xe2\x80\x9d ); The Fed\xc2\xad\neralist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (\xe2\x80\x9c [The\nCommander in Chief power] would amount to nothing more than the supreme\ncommand and direction of the military and naval forces, as first General and Ad\xc2\xad\nmiral of the confederacy . . . .\xe2\x80\x9d ); William Howard Taft, The Boundaries Between\nthe Executive, the Legislative a n d the Judicial Branches o f the Government, 25\nYale L.J. 599, 610 (1916) (the Commander-in-Chief Clause precludes Congress\nfrom \xe2\x80\x9c ordering] battles to be fought on a certain plan\xe2\x80\x9d or \xe2\x80\x9c direct[ing] parts\nof the army to be moved from one part of the country to another\xe2\x80\x9d ); George Suth\xc2\xad\nerland, Constitutional Power a n d W orld Affairs 76-77 (1919) (\xe2\x80\x9c In the actual con\xc2\xad\nduct of military operations, in the field where the battles are being fought, in\nthe movement, disposition and discipline of the land and naval forces, the Com\xc2\xad\nmander-in-Chief is supreme.\xe2\x80\x9d ). As Attorney General (later Justice) Robert Jackson\nexplained,\nthe President\xe2\x80\x99s responsibility as Commander in Chief embraces the\nauthority to command and direct the armed forces in their imme184\n\n\x0cPlacing o f United States Armed Forces Under United Nations Operational or Tactical Control\n\ndiate movements and operations designed to protect the security\nand effectuate the defense of the United States. . . . [T]his author\xc2\xad\nity undoubtedly includes the power to dispose of troops and equip\xc2\xad\nment in such manner and on such duties as best to promote the\nsafety of the country.\nTraining o f British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58,\n\n61-62(1941).\nIt is for the President alone, as Commander-in-Chief, to make the choice of\nthe particular personnel who are to exercise operational and tactical command\nfunctions over the U.S. Armed Forces. True, Congress has the power to lay down\ngeneral rules creating and regulating \xe2\x80\x9c the framework of the Military Establish\xc2\xad\nment,\xe2\x80\x9d Chappell v. Wallace, 462 U.S. 296, 301 (1983), but such framework rules\nmay not unduly constrain or inhibit the President\xe2\x80\x99s authority to make and to imple\xc2\xad\nment the decisions that he deems necessary or advisable for the successful conduct\nof military missions in the field, including the choice of particular persons to\nperform specific command functions in those missions. Thus, for example, the\nPresident\xe2\x80\x99s constitutional power to appoint a particular officer to the temporary\ngrade of Marine Corps brigadier general could not be undercut by the failure of\na selection board, operating under a general statute prescribing procedures for pro\xc2\xad\nmotion in the armed services, to recommend the officer for that promotion. See\nPromotion o f Marine Officer, 41 Op. Att\xe2\x80\x99y Gen. 291 (1956). As Acting Attorney\nGeneral Rankin advised President Eisenhower on that occasion, \xe2\x80\x9c [w]hile Congress\nmay point out the general class of individuals from which an appointment may\nbe made and may impose other reasonable restrictions it is my opinion that the\ninstant statute goes beyond the type of restriction which may validly be im\xc2\xad\nposed. . . . It is recognized that exceptional cases may arise in which it is essen\xc2\xad\ntial to depart from the statutory procedures and to rely on constitutional authority\nto appoint key military personnel to positions of high responsibility.\xe2\x80\x9d Id. at 293,\n294 (citations omitted).3 In the present context, the President may determine that\nthe purposes of a particular U.N. operation in which U.S. Armed Forces participate\nwould be best served if those forces were placed under the operational or tactical\ncontrol of an agent of the U.N., as well as under a U.N. senior military commander\nwho was a foreign national (or a U.S. national who is not an active duty military\nofficer). Congress may not prevent the President from acting on such a military\n3 The Acting Attorney General\xe2\x80\x99s opinion relied chiefly on Congress\xe2\x80\x99s inability to undermine the President\xe2\x80\x99s author\xc2\xad\nity under the Appointments Clause, U.S. Const, art. II, \xc2\xa7 2 , rather than on the promotion procedure\xe2\x80\x99s effect on\nthe Commander-in-Chief power. The President\xe2\x80\x99s appointment power is not at issue here, because the foreign or\nother nationals performing command functions at the President\xe2\x80\x99s request would be discharging specific military func\xc2\xad\ntions, but would not be serving in federal offices. See Memorandum for Andrew Fois, Assistant Attorney General,\nOffice o f Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Defense Authorization Act at 2 n .l (Sept. 15, 1995). Nonetheless, we believe that the reasoning under the Commander-in-Chief Clause closely parallels that under the Appointments Clause.\n\n185\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\njudgment concerning the choice of the commanders under whom the U.S. forces\nengaged in the mission are to serve.\nMoreover, in seeking to impair the President\xe2\x80\x99s ability to deploy U.S. Armed\nForces under U.N. operational and tactical command in U.N. operations in which\nthe United States may otherwise lawfully participate, Congress is impermissibly\nundermining the President\xe2\x80\x99s constitutional authority with respect to the conduct\nof diplomacy. See, e.g., Department o f N avy v. Egan, 484 U.S. 518, 529 (1988)\n(the Supreme Court has \xe2\x80\x9c recognized \xe2\x80\x98the generally accepted view that foreign\npolicy was the province and responsibility of the Executive\xe2\x80\x99 \xe2\x80\x9d ) (quoting Haig v.\nA gee, 453 U.S. 280, 293-94 (1981)); A lfred Dunhill o f London, Inc. v. Republic\no f Cuba, 425 U.S. 682, 705-06 n.18 (1976) (\xe2\x80\x9c [T]he conduct of [foreign policy]\nis committed primarily to the Executive Branch.\xe2\x80\x9d ); United States v. Louisiana,\n363 U.S. 1, 35 (1960) (the President is \xe2\x80\x9c the constitutional representative of the\nUnited States in its dealings with foreign nations\xe2\x80\x9d ); Acquisition o f N aval and\nA ir B ases in Exchange fo r O ver-Age D estroyers, 39 Op. Att\xe2\x80\x99y Gen. 484, 486\n(1940) (Jackson, Att\xe2\x80\x99y Gen.) (the Constitution \xe2\x80\x9c vests in the President as a part\nof the Executive function\xe2\x80\x9d \xe2\x80\x9c control of foreign relations\xe2\x80\x9d ). United Nations peace\xc2\xad\nkeeping missions involve multilateral arrangements that require delicate and com\xc2\xad\nplex accommodations of a variety of interests and concerns, including those of\nthe nations that provide troops or resources, and those of the nation or nations\nin which the operation takes place. The success of the mission may depend, to\na considerable extent, on the nationality of the commanding officers, or on the\ndegree to which the operation is perceived as a U.N. activity (rather than that\nof a single nation or bloc of nations). Given that the United States may lawfully\nparticipate in such U.N. operations, we believe that Congress would be acting\nunconstitutionally if it were to tie the President\xe2\x80\x99s hands in negotiating agreements\nwith respect to command structures for those operations.4\nIt might be argued that section 405 does not impose a significant constraint\non the President\xe2\x80\x99s constitutional authority because it grants the President the au\xc2\xad\nthority to waive the prohibition whenever he deems it in the \xe2\x80\x9c national security\ninterest\xe2\x80\x99\xe2\x80\x99 of the United States to do so, provided he reports his decision to execute\na waiver to Congress fifteen days in advance. If he certifies that an emergency\nis present, he may avoid the fifteen day limitation and make a report in a timely\nmanner, but no later than forty-eight hours after troops are placed under U.N.\ncommand. Thus, functionally, section 405 effects only a conditional ban on the\n4 Past Presidents have committed U.S. forces to foreign command. For example, at a time of great military and\ndiplom atic exigency during the First W orld War, President W oodrow W ilson agreed, after discussions with our\nallies, to place U.S. forces under General Foch, a French commander. General Pershing called on General Foch\nat his headquarters to say, *\xe2\x80\x98[i]nfantry, artillery, aviation, all that we have are yours; use them as you w ish." 8\nRay Stannard Baker, Woodrow Wilson: Life and Letters 60 (1939); see also id. at 62 (President W ilson\xe2\x80\x99s telegram\nto G eneral Foch, staling that \xe2\x80\x9c [s]uch unity of command is a most hopeful augury of ultimate success"); id. at\n6 9 -7 0 (resolution o f Suprem e W ar Council, statuig that General Foch \xe2\x80\x9c is charged by the British, French and Amer\xc2\xad\nican G overnm ents with the coordination o f the action o f the Allied Armies on the W estern Front; to this end there\nis conferred on him all the powers necessary for its effective realization").\n\n186\n\n\x0cPlacing o f United States A rm ed Forces Under United Nations Operational or Tactical Control\n\nPresident\xe2\x80\x99s constitutional authority to control the tactical and operational deploy\xc2\xad\nment of U.S. forces.5 Congress cannot, however, burden or infringe the Presi\xc2\xad\ndent\xe2\x80\x99s exercise of a core constitutional power by attaching conditions precedent\nto the exercise of that power. Attorney General Brownell put the matter well:\nIt is recognized that the Congress may grant or withhold appropria\xc2\xad\ntions as it chooses, and when making an appropriation may direct\nthe purposes to which the appropriation shall be devoted. It may\nalso impose conditions with respect to the use of the appropriation,\nprovided always that the conditions do not require operation of the\nGovernment in a way forbidden by the Constitution. If the practice\nof attaching invalid conditions to legislative enactments were per\xc2\xad\nmissible, it is evident that the constitutional system of the separa\xc2\xad\nbility of the branches of Government would be placed in the gravest\njeopardy.\nAuthority o f Congressional Committees to D isapprove Action o f Executive Branch,\n\n41 Op. Att\xe2\x80\x99y Gen. 230, 233 (1955).\nSimilarly, then-Assistant Attorney General Rehnquist opined:\nEven in the area of domestic affairs, where the relationship between\nCongress and the President is balanced differently than it is in the\nfield of external affairs, virtually every President since Woodrow\nWilson had had occasion to object to certain conditions in author\xc2\xad\nization legislation as being violative of the separation of powers\nbetween the Executive and the legislative branch. The problem\nwould be met in exacerbated form should Congress attempt by de\xc2\xad\ntailed instructions as to the use of American forces already in the\nfield to supersede the President as Commander-in-Chief of the\narmed forces.\nWilliam H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, The\nPresident and the W ar Power: South Vietnam and the Cambodian Sanctuaries\n21 (May 22, 1970).6\nWe are mindful that Congress has framed its restriction on placing troops under\nU.N. control as a prohibition on the obligation or expenditure of appropriated\nfunds. That Congress has chosen to invade the President\xe2\x80\x99s authority indirectly,\n5 Arguably, section 403 effects a complete ban on the use o f appropriated funds to support troops under U.N.\ncontrol in circumstances when the President would find such a deployment advisable but not strictly in the national\nsecurity interest o f the United States. We doubt, however, that such a circumstance is more than hypothetically\npossible. If the President found it advisable to place U.S. forces under U.N. control, then, ipso facto, it would\nbe in the national security interest to place those troops under U.N. control. To the extent that a contrary circumstance\ncould truly arise, then section 405 is unconstitutional.\n4 In a footnote to the text quoted above, Mr. Rehnquist added- \xe2\x80\x9c All o f these Presidents have stated in one way\nor another that just because Congress concededly may refrain from appropriating money at all, it does not necessarily\nfollow that it may attach w hatever condition it desires to an appropriation which it does m ake.\xe2\x80\x9d Id. at 21 n.3.\n\n187\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthrough a condition on an appropriation, rather than through a direct mandate,\nis immaterial. Broad as Congress\xe2\x80\x99s spending power undoubtedly is, it is clear that\nCongress may not deploy it to accomplish unconstitutional ends.7 In particular,\nas our Office has insisted over the course of several Administrations, \xe2\x80\x9c Congress\nmay not use its power over appropriation of public funds \xe2\x80\x98 \xe2\x80\x9c to attach conditions\nto Executive Branch appropriations requiring the President to relinquish his con\xc2\xad\nstitutional discretion in foreign affairs.\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d Issues Raised by Provisions Directing\nIssuance o f Official or D iplom atic Passports, 16 Op. O.L.C. 18, 28 (1992)\n(quoting Issues R aised by Foreign Relations Authorization Bill, 14 Op. O.L.C.\n37, 42 n.3 (1990) (quoting Constitutionality o f Proposed Statutory Provision Re\xc2\xad\nquiring P rior Congressional N otification fo r Certain C .IA . Covert Actions, 13\nOp. O.L.C. 258, 261 (1989))).8\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n7 See United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to impose bill of attainder);\nUnited States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (appropriations act unconstitutionally intruded on President\xe2\x80\x99s\npardon power); cf. Metropolitan Washington Airports Auth. v. Citizens for the Abatement o f Aircraft Noise, Inc.,\n501 U.S. 252, 271 (1991) (Congress may not use its power over Federal property to achieve ends by indirect means\nthat it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm\'n, 271 U.S. 583, 594 (1926)\n(State legislature cannot attach unconstitutional condition to privilege that it may deny); see also Mutual Security\nProgram \xe2\x80\x94 Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt\xe2\x80\x99y Gen. 507, 530 (1960)\n(A tt\xe2\x80\x99y Gen. Rogers) ( \xe2\x80\x9c [T]he Constitution d o es not permit any indirect encroachment by Congress upon [the] authority\no f the President through resort to conditions attached to appropriations.\xe2\x80\x9d ); Constitutionality o f Proposed Legislation\nAffecting Tax Refunds, 37 Op. A tt\xe2\x80\x99y Gen. 5 6 , 61 (1933) (A tt\'y Gen. Mitchell) ( \xe2\x80\x9c This proviso can not be sustained\non the theory that it is a proper condition attached to an appropriation. Congress holds the purse strings, and it\nmay grant o r withhold appropriations as it chooses, and when making an appropriation may direct the purposes\nto which the appropriation shall be devoted and impose conditions in respect to its use, provided always that the\nconditions do not require operation of the Government in a way forbidden by the Constitution.\xe2\x80\x9d ), Memorial o f\nCaptain Meigs, 9 Op. A tt\xe2\x80\x99y Gen. 462, 4 6 9 -7 0 (1860) (concluding that appropriations bill that contained condition\nthat money be spent only under supervision o f congressionally-designated individual was invalid); W illiam P. Ban,\nThe Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( \xe2\x80\x9c Congress\ncannot use the appropriations power to control a Presidential power that is beyond its direct control.\xe2\x80\x9d ); Harold\nH. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale\nL.J. 1255, 1303 n.218 (1988) (citing support fo r view that Congress acts unconstitutionally if it refuses to appropriate\nfunds for President to carry out his enumerated constitutional responsibilities); Kate Stith, Congress\' Power o f the\nPurse , 97 Yale L.J. 1343, 1351 (1988); Louis Henkin* Foreign Affairs and the Constitution 115 (1972) ( \xe2\x80\x9c Congress\ncannot impose conditions which invade Presidential prerogatives to which the spending is at most incidental.").\n8 See also The President\xe2\x80\x99s Compliance with the \xe2\x80\x9cTimely Notification" Requirement o f Section 501(b) o f the Na\xc2\xad\ntional Security Act, 10 Op. O.L.C. 159, 1 6 9 -7 0 (1986) ( \xe2\x80\x9c [W]hile Congress unquestionably possesses the power\nto make decisions as to the appropriation o f public funds, it may not attach conditions to Executive Branch appropria\xc2\xad\ntions that require the President to relinquish an y o f his constitutional discretion in foreign affairs.\xe2\x80\x9d ).\nThis limitation on legislative power has also been acknowledged by Members o f Congress. See Oirin Hatch,\nWhat the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988) ( \xe2\x80\x9c [C onstitutional\nforeign policy functions may not be eliminated by a congressional refusal to appropriate funds. The Congress may\nnot, for exam ple, deny the President funding to receive ambassadors, negotiate treaties, or deliver foreign policy\naddresses . . . . Congress oversteps its role when it undertakes to dictate the specific terms of international rela\xc2\xad\ntions.\xe2\x80\x9d ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289 Annals Am.\nA cad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks o f Representative Daniel Webster, objecting on constitutional\ngrounds in 1826 to appropriations rider that puiported to attach instructions to United States diplomats).\n\n188\n\n\x0c'