                                                                 July 3, 1979


79-48     MEMORANDUM OPINION FOR THE ACTING
          DIRECTOR, EXECUTIVE OFFICE FOR U.S.
          ATTORNEYS

          (1) Conflict of Interest (18 U.S.C. § 208)—
          Financial Interest
          (2) Standards of Conduct (28 CFR § 45-735-
          9(a))—Prohibition Against Practice of Law

   Assistant Attorney General Harmon has asked me to reply to your
memorandum of June 21, 1979, regarding Mr. A, U.S. Attorney, South­
ern District of Texas.
   You request advice, first, with respect to A ’s agreement with his former
law partner, entered into before he took office as U.S. Attorney, that he
will rejoin him as a partner after leaving that office. There is no statute or
administrative regulation that precludes an officer or employee of this
Department who came to it after departing another place of employment,
including a law firm in which he was a partner, from returning to that
place of employment pursuant to a pre-departure agreement to do so.
Where there is an agreement of that kind, the officer or employee must of
course comply with the requirement of 18 U.S.C. 208 that he disqualify
himself from participating in his official capacity in any matter in which
the other party to the agreement has a financial interest. In A’s case the re­
quirement of the statute applies not only to a matter pending in his Office
in which his former partner has a financial interest on his own account but
also to any matter pending there in which the latter appears as counsel.
   Your second inquiry is concerned with the law firm’s library, furniture,
etc., and with the building in which the firm has its offices. The building is
presumably owned of record by A and his former partner, either in their
own names or through a corporate entity of some kind. No doubt A’s
withdrawal from the firm served to relinquish his interest in its law books,
equipment, and the like. However, it is not apparent that he has given up
his interest in the building. The last paragraph of his letter may be read as
a disclaimer of any right to income from that real property during his
tenure as U.S. Attorney, but it is not a negation of his continuing half

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interest in the property. For purposes of the following discussion I shall at­
tribute ownership of a half interest to him.
   The standards of conduct of this Department prohibit a professional
employee from engaging in the private practice of his profession, in­
cluding the practice of law, except as specifically permitted by the
Associate Attorney General “ in unusual circumstances.” 28 CFR
45.735-9(a), (c). It seems clear that a departmental lawyer who has an in­
terest of some kind in the ongoing earnings of a law firm of which he was
formerly a member and which he is scheduled to rejoin is, for the purposes
of this regulation, engaged in the private practice of law even though he is
completely inactive in the firm. Here, however, it appears that A has relin­
quished all interest in the income of his former firm earned during his
Government service. Accordingly, the resolution of the question of the ap­
plicability of the regulation to him involves a consideration of—more ac­
curately, perhaps, it hinges on—the nature of his continuing half interest
in the building where the firm’s offices are located. It is difficult to con­
ceive of that equity interest as anything but an investment in real estate. To
characterize its continued ownership by A as a means of engaging in the
practice of law within the meaning of § 45.735-9(a) would be unrealistic.
   In sum, we are of the view that A’s agreement with his former partner
does not cut across any restriction of the conflict of interest laws, subject
to A ’s possible need to disqualify himself from official action under the re­
quirement of 18 U.S.C. 208 noted above, or any restriction of the Depart­
ment’s standards of conduct, including § 45.735-9(a).

                                       Leon U   lm an

                            Deputy Assistant Attorney General
                                                Office o f Legal Counsel




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