                    Ethical Considerations Regarding
                    Charitable or Political Activities
                         of Department Spouses

Statutes and regulations im pose no restrictions on the charitable or political activities o f the
   spou ses o f Department o f Justice officials, but officials m ust ensure that knowledge
   about their spou ses’ fundraising activities will n ot affect their impartial judgm ent with
   respect to Department business.

                                                                            November 17, 1989

                                    Mem orandum O         p in io n



   The question has arisen as to the guidance that should be given to the
spouses o f senior Department o f Justice officials who wish to engage in
charitable or political activities, such as fundraising for private organiza­
tions. We have reviewed this issue carefully and have found no limita­
tions under current statutes or Department regulations when such activ­
ities are undertaken by a private citizen married to a Department official.1
Ethical rules do come into play indirectly, however, due to the potential
repercussions o f the spouse’s activities upon the Department official. The
constraints upon the spouse’s activities are largely political rather than
legal, however; they stem, in large part, from the risk that some activities
o f the spouse might be construed by outsiders to reflect negatively upon
the Department or the official.
   We discuss herein (1) the use o f the spouse’s name by charitable or
political organizations, (2) travel reimbursement for speaking engage­
ments, and (3) participation in fundraising activities.

A. Use o f Name

   No limitations apply directly to a spouse in lending his or her name to
an organization. A spouse should take care to ensure that such references
do not convey the appearance o f an endorsement from the Department
official or the Department itself. This is especially true if the Department
official is one o f the high level officials listed in 28 C.F.R. § 45.735-



  1In particular, the Hatch Act does not apply to spouses o f Department officers or employees.

                                                 350
12(d)(1) who are barred from engaging in fundraising.2 Spouses can gen­
erally avoid such problems by identifying themselves as “Mary Jones”
rather than “Mrs. James Jones” or “James Jones” rather than “James
Jones, the husband of the Deputy Attorney General” and by having their
name appear as one of several on any mailing.

B. Travel Reimbursement

   Department regulations impose no restriction upon the acceptance o f
reimbursement for expenses by the spouse when travelling on personal
business. Thus, the concerns that may be raised about the propriety o f
reimbursing a spouse when the spouse accompanies the Department offi­
cial on official trips, see 28 C.F.R. § 45.735-14a(d), would not be implicat­
ed with respect to the travel contemplated here.

C. Fundraising

   Under current law, a spouse may raise funds for a private organization,
regardless o f whether it is a for-profit or non-profit group. Although
issues of a financial conflict o f interest for the Department official might
arise if the spouse were a paid fundraiser,3 such issues do not arise where
the spouse’s time is donated, especially for a charitable purpose. Thus,
there are no legal constraints on a spouse who fundraises, either as a vol­
unteer for charity or as a paid fundraiser for an employer. However, a
spouse may wish to consider whether activity as a fundraiser may raise
some concerns for the Department official.
   Fundraising, whether voluntary or paid, does require the Department
official to consider whether knowledge o f a spouse’s work raises any con­
cerns with a personal conflict o f interest or an appearance o f impropri­
ety. This is because the Department official is under a duty to exercise
impartial judgment on behalf o f his client,4 the agency that the Depart­


  2This regulation provides
      The Attorney General, Deputy Attorney General, Associate Attorney General, and the heads
      o f divisions shall not make speeches or otherwise lend their names or support in a prominent
      fashion to a fundraising dnve or a fundraising event or similar event intended for the benefit
      o f any person.
This prohibition does not apply to a fundraising event by an organization that is exempt from taxation
under section 501(c)(3) o f the Internal Revenue Code 28 C F.R § 45 735-12(d)(3)
  3 Unless the spouse is paid on a commission basis, the Department official would not be deemed to
have a financial interest in Department matters concerning companies that donated money through the
spouse to the interested organization. 18 U.S.C. § 208 Money raised for the organization employing on e’s
spouse is not a financial interest attributable to a Department employee as long as the spouse receives a
fixed salary.
  4 Department officials are generally bound by the American Bar Association Code o f Professional
Responsibility 28 C F R § 45 735-l(b) The ABA Code’s general conflict o f interest rules include a prohi­
bition on any lawyer (except with the client’s consent after full disclosure) undertaking representation
                                                  Continued

                                                 351
ment o f Justice is representing in any particular matter. The more that the
Department official knows about a spouse’s work — for example, who
has been approached for donations or what bonuses may be given if the
spouse raises a large sum — the more likely it is that the Department offi­
cial will realize that the Department’s work for a client might have some
impact on the fundraising activity.5
   Thus, if a spouse discusses work with the Department official, the offi­
cial will need to determine on an ongoing basis whether the knowledge
gained will affect his impartial judgment with respect to Department
business.6 If they discuss the spouse’s work freely, there would be no
impact on the couple’s personal life but some burden would be placed on
the Department official’s professional life. If, however, the Department
official adopted a prophylactic rule of not discussing the spouse’s work,
there might be a significant impact on their personal life, but it would
eliminate the official’s professional concerns. The official would simply
not know whether the spouse was trying to raise money from someone
against whom the Department was contemplating, or engaged in, action.
Since either course is entirely legal, the Department official is free to
choose whichever o f these options is best suited.

                                                                 WILLIAM P. BARR
                                                         Assistant Attorney General
                                                           Office o f Legal Counsel




   4(...continued)
when the lawyer’s own financial, business, property or personal interests may impair his or her inde­
pendent judgment. DR 5-101 (A). If the Department official is a member o f a state bar that has adopted
the Model Rules o f Professional Conduct, the standard is whether he reasonably believes that his client’s
interests will not be “materially limited ... by the lawyer’s own interests.” Rule 1.7(b).
   6The problems could arise in various ways, such as if the Department were investigating or prosecut­
ing the organization for which the spouse works, some area (such as fundraising for the disabled) in
which the organization was involved, or a d onor from whom the spouse was soliciting funds A worst-
case scenario would be a situation such as the Department announcing that it was not indicting a m^jor
corporation from whom the spouse of an official with prosecuting authonty had just received a large
donation.
  6 For example, a Department official w ould need to evaluate whether the fact that the spouse would
receive a significant bonus if able to raise a certain sum from the defense industry would affect his impar­
tial review o f an ongoing defense procurement investigation. Or the official might need to decide
whether the fact that the spouse was going to solicit funds from Company X would affect his judgment
about whether to approve an investigation o f that company. The likelihood of these concerns being sig­
nificant is obviously speculative since they are based on facts that cannot be known in advance

                                                   352
