                                                          January 31, 1977


77-5      MEMORANDUM OPINION FOR THE
          ASSISTANT ATTORNEY GENERAL, LAND
          AND NATURAL RESOURCES DIVISION
          ConnffMct off Interest—Propriety of Appearance off a
          Former Justice Departtmemt Attorney inn a
          Comdlemimatioini Case


   This is in response to your request for our opinion regarding the
propriety of Mr. A ’s representing the property owner in a condemna­
tion proceeding.
   We understand that Mr. A was a supervisory attorney in your Divi­
sion, but that he resigned in 1975. He states that the case was filed on
June 4, 1975, and that it was under his official responsibility prior to his
resignation. However, since his resignation apparently became effective
more than one year ago, he is not prohibited by 18 U.S.C. § 207(b)
from appearing in the matter even though it may have been under his
“official responsibility” (as that term is defined in 18 U.S.C. § 202(b))
during the year preceding his resignation.
   N or does Mr. A ’s proposed representation appear to be prohibited by
18 U.S.C. § 207(a). That section precludes later representation only in
matters in which the former Government employee participated “per­
sonally and substantially.” He states that he has no personal recollection
of the case or of any conversations with other attorneys in the office
about it. He also states that the Department attorney handling the case
examined the file and found no indication of any involvement by Mr.
A. The Departm ent attorney confirmed this in a telephone conversation
w ith this Office and further informed us that the case was at a prelimi­
nary stage when Mr. A was in office and that it is therefore unlikely
that Mr. A would have become involved in it. On the basis of these
representations, it seems that Mr. A had no personal involvement in the
case w hatever and thus is not barred by 18 U.S.C. § 207(a).
   You did not mention the American Bar Association (ABA) Code of
Professional Responsibility in your memorandum. As you know, Disci­
plinary Rule 9-101(B) of the Code prohibits an attorney from accepting
employment in a matter in w hich he had “substantial responsibility” as
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a public employee. Formal Opinion 342 of the ABA Committee on
Professional Ethics takes a rather narrow view of this provision, con­
cluding that an attorney had substantial responsibility for a matter and
is therefore barred under DR 9-101(B) only if he was personally in­
volved in the investigative or deliberative processes regarding it “to an
important, material degree” or had a “heavy responsibility” for it,
which suggests that he probably did become so involved.
   This Department has taken a much broader view of the disqualifica­
tion requirement. It has been our position that a former Government
attorney who practiced at the supervisory level must infrequently be
charged with “substantial responsibility” for at least all significant mat­
ters that were under his supervision, whether or not he participated
personally in them. In our opinion, this construction of DR 9-101(B) is
necessary to avoid the appearance of impropriety in the attorney’s
representing a private party in a matter in which he had the power to
affect the Government’s position when he was with the Government.
See I. Kaufman, “The Former Government Attorney and the Canons of
Professional Ethics,” 70 Harv. L. Rev. 657, 666 (1957). Factors that we
think should be considered in determining whether, from an ethical
standpoint, a former Government attorney may properly represent a
party in a matter that was under his official responsibility when he was
with the Government include: (1) whether his relationship to the matter
was merely formal; (2) whether the subject matter was routine and
involved no policy determination or was not otherwise o f particular
significance; and (3) whether there were intervening levels of responsi­
bility or other indications that the matter was not of a type with which
the attorney would or should ordinarily have had personal involve­
ment. See, generally, Kesselhaut v. United States, (March 29, 1976), slip
opinion at 24-29, rev’d on other grounds (May 18, 1977); Opinion 889 of
the Committee on Professional and Judicial Ethics of the Association of
the Bar of the City of New York. In the present situation, we think that
it might also be relevant that the case was apparently not yet at a stage
at which Mr. A would have been likely to have had any real involve­
ment with it.
   W hether Mr. A is personally barred by DR 9-101(B) is essentially a
factual determination to be made by your Division, applying the stand­
ards outlined above. If he is, it is the Department’s position that the
entire law firm is also disqualified unless the Department consents to its
representation with appropriate safeguards for Mr. A ’s insulation from
personal or financial participation in the case.
                                                L eo n U lm an
                                  Acting Assistant Attorney General
                                                 Office o f Legal Counsel



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