Ethics Opinion 315

Personal and Substantial Participation in Prior Litigation

(1) A former lawyer with the Environmental Protection Agency (“EPA”) may represent a private client in challenging the EPA’s final rules, notwithstanding the fact that he was involved in substantially related litigation by drafting status reports and participating in discussions regarding the timing of the ongoing rulemaking proceedings. Because his participation in the prior matter did not involve him in the merits of the litigation and consisted of no more than official responsibility or participation on administrative and peripheral issues, he did not participate “substantially” in the prior litigation within the meaning of Rule 1.11.

(2) Because this Committee cannot determine whether a former Justice Department official in the Civil Rights Division participated “personally and substantially” in litigation concerning a school board when he worked twenty years earlier in the Division’s front office, the prudent course to follow would be for the former Justice Department official not to represent the same school board in the same matter today. This Committee does not have the institutional capacity to resolve the factual question presented by inconsistent recollections from witnesses regarding the degree of the inquirer’s personal participation in the same matter while a government employee.

Applicable Rule

• Rule 1.11 (Successive Government and Private Employment)

The Committee has received two separate inquiries relating to the same issue under Rule 1.11 of the District of Columbia Rules of Professional Conduct—whether, under specific factual circumstances, a lawyer “participated personally and substantially” while a government employee in the same matter on which the lawyer would now like to participate in private practice. Rule 1.11 provides that a lawyer may not “accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.” Because the two inquiries present unique facts, we shall discuss each inquiry separately.

I. Former Attorney with the Environmental Protection Agency 

Inquiry 

The first inquiry comes from a former attorney in the Environmental Protection Agency’s (“EPA”) Office of General Counsel. While he was at the EPA (between October 1997 and April 2001), the inquirer was involved in drafting a set of regulations to implement the Clean Air Act Amendments of 1977. The first set of regulations to implement this Act were promulgated in 1980, and they were challenged in the United States Court of Appeals for the District of Columbia Circuit. After the case had been fully briefed, the parties reached a partial settlement agreement according to which the EPA agreed to make certain specific changes to a particular rule. Although the case was effectively remanded to the EPA for further rulemaking, it remained in abeyance on the court’s docket. Meanwhile, as the remand proceedings were pending, the EPA issued a related set of regulations in 1992, and the challenge to those regulations was ultimately consolidated with the original challenge to the 1980 regulations. Beginning in January 1995, the D.C. Circuit ordered the consolidated cases held in abeyance pending the EPA’s further rulemaking proceedings.¹ In 1996, the EPA issued a Notice of Proposed Rulemaking (“NPRM”) regarding a wide range of regulations and including the specific issue that had been remanded through the partial settlement of the 1980 litigation. The EPA indicated in its NPRM that it intended to issue final rules consistent with the settlement terms. Those final rules have not yet been issued.²

As mentioned above, during his time at the EPA, the inquirer worked on various aspects of the final rulemaking that had been proposed in 1996. In addition to his work on the new regulations, however, the inquirer was also responsible for helping the Department of Justice attorneys (who represented the EPA on appeal) draft status reports for the court on the progress of the further rulemaking. These reports were filed regularly with the D.C. Circuit every three to four months between 1995 and 1999. Although he was never counsel of record in the cases, the inquirer also participated as one of several EPA attorneys in discussions with opposing counsel regarding the timing of the EPA’s final rulemaking. These negotiations never addressed the underlying merits of the litigation.

The inquirer has now left the EPA and begun working as counsel to one of the entities that had challenged the 1992 regulations. The inquirer has asked this Committee whether he may represent his current client in any future litigation challenging the final rules that the EPA will eventually issue in response to the 1996 NPRM. Specifically, the inquirer has asked whether, while employed by the EPA, he “personally and substantially” participated in the prior, consolidated litigations within the meaning of Rule 1.11 such that he may not now participate in a “substantially related” matter on behalf of a private client.

Discussion 

Rule 1.11 does not generally apply to prohibit a former government lawyer from representing a private client in a matter when the lawyer’s only relationship to that matter as a government employee was to work on administrative rulemakings of general applicability. See D.C. Rule 1.11(g) (limiting the definition of “matter” as “involving a specific party or parties”); Id., Comment [3] (“[t]he making of rules of general applicability and the establishment of general policy will ordinarily not be a ‘matter’ within the meaning of Rule 1.11”). This Committee recently reaffirmed its longstanding view that the making of rules of general applicability does not constitute a “matter” within the meaning of Rule 1.11.³ Therefore, as the inquirer himself has recognized, the fact that he worked on drafting and developing the final regulations would not preclude him from representing a private party in any subsequent litigation challenging those regulations. Of course, as we have recognized in prior opinions on this issue, the fact that Rule 1.11 does not prohibit the subsequent private representation does not mean that the former government lawyer is free from any obligations with respect to his former government service. Under Rules 1.6(f), for example, he continues to have the obligation to preserve any government confidences or secrets that he obtained; under Rule 1.7(b)(4), the former government lawyer has an obligation to ensure that his professional judgment on behalf of his new, private client is not adversely affected by his prior involvement in the government rulemaking proceedings.⁴

But the inquirer was involved in more than the drafting of the final regulations; he also participated in the prior, consolidated litigation by helping to draft status reports for the D.C. Circuit and by participating as one among several EPA employees in discussions relating to the timing of the EPA’s final regulations. Put simply, the question is whether a government lawyer has “participated personally and substantially” in a matter when he or she helped to prepare reports on the status of subsequent agency rulemaking for filing in court and participated in discussions with opposing counsel over the timing of that rulemaking?⁵

Although this is a very close question, we conclude that the answer is “No.” This question requires an inquiry into what the inquirer actually did or knew rather than into the scope of his prior legal representation. As we explained over twenty years ago, the question whether a former government employee’s participation was “substantial” turns not on formal questions of the “authority to make major decisions” but rather on a factual inquiry into whether the “involvement was direct, extensive, and substantive, not peripheral, clerical, or formal.” D.C. Bar Op. No. 84, at 150 (1980).⁶

In Opinion No. 111, we concluded that an Assistant United States Attorney did not have “substantial responsibility” (DR 9-101(B)) over a matter when all he did was to read the complaint and maintain a file of all publicly filed documents in the case. He did not render any advice, take any action, or consult with anyone else with respect to the litigation. See D.C. Bar Op. No. 111, at 191 (1982). Here, by contrast, the inquirer had to consult to some extent with the lawyers at the Department of Justice who filed the status reports that he drafted, but the substance of those consultations was confined to the progress of the ongoing rulemaking proceedings, not to the course of the litigation. Moreover, like the Assistant United States Attorney in Opinion No. 111, the inquirer was never counsel of record, so “public appearances should not be offended because as a government attorney he did not participate in the matter in a public way.” Id. at 192.

As we noted in Opinion No. 177, the critical question is whether the inquirer’s “activities involved [him] in the merits of the case,” thereby making “substantial” his personal participation in the matter. See D.C. Bar Op. No. 177, at 295 (1986). Although the inquirer participated in discussions with opposing counsel, his role in these negotiations was as a junior member of the team, and the discussions focused not on resolving the merits of the litigation but on the timing of the final rules following the agency’s NPRM.⁷

Moreover, the inquirer’s role in the prior litigation was clearly not substantive. Throughout his period of employment with the EPA, the 1980 and 1992 consolidated litigations were inactive; the parties were simply waiting (indeed, they are still waiting) for the EPA to issue its final rules. If the scope of the inquirer’s participation in the prior litigation were sufficient to constitute “personal and substantial” involvement, it is difficult to imagine how any involvement in a case would fail to satisfy such a standard. Simply participating as a lawyer on behalf of the EPA cannot be sufficient without some evidence that the participation was “more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.” 5 C.F.R. § 2637.201(d)(1). Accepting (as we must) the inquirer’s own description of his involvement in the prior litigation as limited to drafting status reports on the ongoing administrative rulemaking and participating in discussions concerning the timing of that same rulemaking, we conclude that his involvement amounted to no more than “official responsibility . . . or involvement on an administrative or peripheral issue.”

Finally, we concluded twenty years ago that an Assistant United States Attorney had not been substantially involved in a matter where he had “been privy to no government confidences relating to the matter” and where there could be “no suggestion that the degree of his involvement in the matter while in government service could reasonably be expected to or did encourage his subsequent private employment or the prospective assignment in private practice to the same litigation.” D.C. Bar Op. No. 111, at 192. While it is certainly possible that the inquirer’s current employer may have hired him (at least in part) because of his past involvement in the EPA’s general rulemaking proceedings in this area, we find no reason to believe that the inquirer’s limited and peripheral involvement in the litigations over the 1980 and 1992 rulemakings encouraged his subsequent private employment. And encouraging subsequent private employment is, after all, one of the goals that Rule 1.11 is designed to protect, for it could undermine the ability of government to recruit young professionals and competent lawyers to impose harsher restraints than necessary upon future practice. See D.C. Bar Op. No. 111, at 191; ABA Formal Opinion No. 342; D.C. Rule 1.11 Comment [5] (“Governments have found that they benefit from having in their service both younger and more experienced lawyers who do not intend to devote their entire careers to public service.”).⁸

In sum, we conclude on this record that the inquirer did not “participate[ ] personally and substantially as a public officer or employee” in the prior consolidated litigation. Rule 1.11 would not, therefore, prohibit his participation in any subsequent litigation arising out of a challenge to the EPA’s final rules.⁹

II. Former Official in the United States Department of Justice

Inquiry

The second inquiry comes from a former Department of Justice lawyer, who asked whether he could represent a school board in the latest phase of a desegregation case that had been in active litigation in the early 1980s, when the inquirer had been a senior official in the Civil Rights Division.¹⁰ The inquirer had taken the position with his former employer that he had not “participated personally and substantially” in the case while a public official. His own recollection was that he attended a single meeting relating to the case—a meeting that involved a number of other lawyers, including the Assistant Attorney General and the Government’s expert witness in the case—and that he had no official responsibility for the matter. In response to his request for guidance, the Deputy Designated Agency Ethics Official in the Civil Rights Division recommended that he not appear before a federal agency or court on behalf of the school board in the current phase of the case “in order to avoid a possible violation of 18 U.S.C. [§] 207(a).”¹¹

Having interviewed seven current and former Civil Rights Division attorneys, all of whom had varying recollections of the inquirer’s involvement in this litigation, the official responded to the inquirer as follows: “In my view, the line attorneys and the reviewer responsible for the case in the Section, who were most intensively involved in the case to the exclusion of other matters, are most likely to have the best memories about it. Among this group, all but one recall that you were personally and substantially involved. Even your own recollection indicates that you attended at least one meeting at which the case was substantively discussed.” Civil Rights Division Letter at 2. The inquirer has asked this Committee whether his involvement in this litigation in the early 1980s constituted personal and substantial participation in that matter under Rule 1.11(a).

Discussion 

The government ethics official in the Department of Justice has concluded that the available evidence supports the conclusion that the inquirer participated in the earlier matter “personally and substantially” as a public officer or employee within the meaning of section 207(a)(1). That conclusion was based on interviews with other attorneys involved in the matter and on the judgment of the reviewing official that the recollections of those who were most closely involved in the case should be considered most reliable. Because, “[a]mong this group, all but one recall that the [inquirer was] personally and substantially involved,” the official recommended that the inquirer not represent the school board before a federal court or agency to ensure that he not violate section 207.

One fact distinguishes this inquiry from others that the Committee has considered under Rule 1.11: there is a serious (if not surprising) disagreement over what role the inquirer actually played with respect to the school desegregation case approximately eighteen years ago. In all previous inquiries involving the meaning of the phrases “substantial responsibility” and “participated personally and substantially,” the actions, duties, and responsibilities of the former government lawyer while in the government were undisputed and accepted as fact. Here, by contrast, there is no consensus. On one hand, the inquirer himself recalls attending a single meeting about the case in early 1983, when he was a Special Assistant to the Assistant Attorney General for the Civil Rights Division. He recalls attending this meeting with the Assistant Attorney General and with the government’s expert witness in the litigation and characterizes his own participation as “peripheral.” Other than this one meeting, he does not recall having had any other involvement with the case. The former Assistant Attorney General recalls that the inquirer was busy with another matter at this time and that he was not involved with this particular litigation. The former Chief of the Educational Section also recalls that the inquirer was not involved, although the former Chief had only limited involvement with the case himself.

On the other hand, a number of attorneys recall that the inquirer was far more involved. In particular, the lawyer who was primarily responsible for handling the matter for the Civil Rights Division remembers that the inquirer was present at more than one meeting about the case and that he had participated in discussions on various questions of strategy. The former Deputy Chief of the General Litigation Section recalls that the inquirer not only participated in more than one meeting about the case but that he participated in a substantial way, particularly on policy issues that arose during the course of the litigation. And the attorneys who handled the case in early 1983 recall that the inquirer participated in “conceptual discussions” about the case and that, at the particular meeting with the government’s expert witness, the inquirer asked a series of specific questions about school-desegregation policy.¹²

We are not, of course, a fact-finding body, so we are in no position to resolve this factual question. If it turned out that the inquirer attended several meetings on the case, that he participated in “conceptual discussions” regarding policy issues that arose during the litigation, or that he raised specific questions about school-desegregation policy during a specific meeting relating to the case, we would probably conclude that the inquirer participated “personally and substantially” in the matter. As we noted in Opinion No. 177, where a former government attorney consulted with others in her office and reviewed their recommended decisions, “these activities involved her in the merits of the case,” thereby making substantial her personal participation. See D.C. Bar Op. No. 177, at 295. To the extent that the inquirer’s participation “involved [him] in the merits of the [school-desegregation] case,” we believe that it would be reasonable to conclude that he participated “personally and substantially” in the matter.

It is a harder question whether the inquirer’s participation would qualify as “personal” and “substantial” if the extent of his involvement were limited to what he now recalls. If all he did was attend a single meeting in the company of a number of more senior attorneys in the Civil Rights Division, and if he did not actively participate in the meeting by asking questions about the case but rather listened generally to the conversation of others, we would most likely conclude that he did not participate “personally and substantially” in the matter. To paraphrase our Opinion No. 84, his involvement in the matter would have been peripheral and formal, not direct, extensive, or substantive.

Because our conclusion with respect to the applicability of Rule 1.11 depends entirely on a factual determination, we cannot now provide the definitive answer that the inquirer is seeking. We simply have no basis to second-guess the conclusion reached by the government ethics official in the Civil Rights Division that the attorneys who were most intensively involved in the matter are most likely to have the best memories about it and that, among this group, all but one characterized the inquirer as having been personally and substantially involved in the matter. Because the passage of time has probably made it impossible conclusively to determine the relevant facts—at least in the absence of a formal hearing convened for that purpose—we believe that the only prudent course for the inquirer to follow would be to decline other employment in connection with this matter, lest he risk violating Rule 1.11.¹³

Inquiry Nos. 01-10-23, 01-12-26
Adopted: June 2002
Published: June 2002

1. Ultimately, the court “administratively terminated” the cases in December 1999.
2. The EPA recently announced that it intends to issue regulatory changes in a rulemaking action later this year. See EPA Announces Steps to Increase Energy Efficiency, Encourage Emissions Reductions (June 13, 2002), www.epa.gov/epahome/headline_061302.htm.
3. See D.C. Bar Op. No. 297 (2000) (a former government attorney is not prohibited under Rule 1.11 from representing a private client in a “negotiated rulemaking” in which he participated while employed by the government); see also D.C. Bar Op. 187 (1987) (former government employee was not prohibited under DR 9-101(B) from representing a private client in challenging an agency’s regulations for which he had been responsible while employed by the government); D.C. Bar Op. 106, at 184 (1981) (“‘work as a government employee in drafting, enforcing, or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101(B) from subsequent private employment involving the same regulations, procedures, or points of law; the same ‘matter’ is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation or specific parties’” (quoting ABA Formal Op. No. 342 (1975)). This view is consistent with the position of the American Law Institute, see Restatement (Third) of the Law Governing Lawyers § 133 cmt. e (2000) (defining “matter” as a “judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties. Drafting of a statute or regulation of general applicability is not included under that definition. . . .”).
4. We note, as we have recognized in prior opinions on this issue, that the fact that Rule 1.11 does not prohibit the subsequent private representation does not mean that the former government lawyer is free from any obligations with respect to his former government service. Under Rules l.6(f), for example, he continues to have the obligation to preserve any government confidences or secrets that he obtained; under Rule l.7(b)(4), the former government lawyer has an obligation to ensure that his professional judgment on behalf of his new, private client is not adversely affected by his prior involvement in the government rulemaking proceedings. See D.C. Bar Op. No. 297, at 178-79 (noting the concerns identified in Opinion No. 106).
5. Based on our review of the rulemaking history, we believe that any challenge to the final rules that the EPA ultimately adopts would be “substantially related” to the consolidated litigations on which the inquirer worked while employed at the EPA. The critical question in determining whether two matters are the same or substantially related to one another is whether “the factual contexts of the two . . . transactions overlap in such a way that a reasonable person could infer that the former government attorney may have had access to information legally relevant to, or otherwise useful in, the subsequent representation.” Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 49-50 (D.C. 1984) (en banc). The inquirer worked at the EPA between October 1997 and April 2001, during which time he was the staff attorney assigned to the consolidated litigation over the 1980 and 1992 Regulations. Under the facts presented by the inquirer, it is reasonable to infer that, as the staff attorney assigned to this appeal, the inquirer had access to information in the prior litigation that would be “legally relevant to, or otherwise useful in, the subsequent representation” in challenging the EPA’s final rules relating to the same issue.
6. See also D.C. Bar Op. No. 16, at 83 (1976) (concluding that, in order to determine whether a former government lawyer’s responsibility with regard to a government contract was “substantial” within the meaning of DR 9-101(B), we must have “before us the full facts as to a particular contract and the role which the inquiring attorney played in the drafting, negotiation, execution or administration of that contract”).
7. We do not mean to suggest that participation in negotiations over the timing of administrative rulemaking could never be sufficiently substantial to trigger Rule 1.11. On the contrary, we would expect that participating in discussions over the timing of agency action in the context of litigation challenging such action would typically constitute substantial participation in the litigation itself. But under the specific circumstances at issue here, we believe that the inquirer’s discussions with opposing counsel over the timing of the rulemaking were too far removed from the underlying merits of the challenge to the rules to constitute substantial participation in the litigation. To be sure, the inquirer participated personally and substantially in the substantive work on the final regulations. But, as we have already noted, participation in this general rulemaking does not constitute participation in a “matter” under Rule 1.11(a). Because the inquirer’s participation in the relevant “matter” was limited to reporting on the progress and discussing timing of the general rulemaking proceeding, we are convinced, under the circumstances presented here, that his participation in the prior litigation was more “peripheral, clerical, or formal” than “direct, extensive, and substantive.” D.C. Bar Op. No. 84 at 150.
8. We have cautioned that the government’s ability to attract lawyers “‘should not be interfered with by imposition of harsh restraints upon future practice nor should too great a sacrifice be demanded of the lawyers willing to enter government service . . . ; and the rule should not be permitted to interfere needlessly with the right of litigants to obtain competent counsel of their choosing, particularly in specialized areas requiring special, technical training and expertise.’” D.C. Bar Op. No. 111, at 191 (quoting ABA Formal Opinion No. 342).
9. Letter from Linda F. Thome, Deputy Designated Agency Ethics Official, U.S. Dep't of Justice, Civil Rights Division, at 3 (Sept. 11, 2001) ("Civil Rights Division Letter").
10. These descriptions of the attorneys’ recollections are taken from the Civil Rights Division Letter recommending that he not represent the school board before a federal court or agency, "in order to avoid a possible violation of 18 U.S.C. [§] 207(a)."
11. It is possible, of course, that the particular phase of the litigation pending in the early 1980s would not properly be considered “the same as, or substantially related to,” the matter on which the inquirer would now like to work. If this were so, Rule 1.11 would not apply. That question, however, was not presented to the Committee, and we have no basis to consider it.
12. These descriptions of the attorneys’ recollections are taken from the Civil Rights Division Letter recommending that he not represent the school board before a federal court or agency, "in order to avoid a possible violation of 18 U.S.C. [§] 207(a)."
13. It is possible, of course, that the particular phase of the litigation pending in the early 1980s would not properly be considered “the same as, or substantially related to,” the matter on which the inquirer would now like to work. If this were so, Rule 1.11 would not apply. That question, however, was not presented to the Committee, and we have no basis to consider it.