COUNSELING THE GOVERNMENT LAWYER: Revolving Doors and More APRL 2011 Midyear Meeting Atlanta GA 10 February 2011

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Basic Sources of Regulation Federal/State/Local Laws and Regulations Ethics Rules

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Federal Regulatory Framework Seeking Employment, 5 C.F.R. Part 2635.603 Standards of Conduct, 5 C.F.R. Part 2635 Post Employment 18 U.S.C. §207, 5 C.F.R. 2641 Sharing Fees 18 U.S.C. §203

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Limitations Seeking employment Positions with non-Federal entities Post employment Executive branch employees Rules apply licensed lawyer working in non-lawyer position

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Seeking Employment When you are seeking employment, 5 C.F.R. Part 2635.603 with persons whose financial interests would be directly and predictably affected by particular matters in which you are participating personally and substantially, you need to disqualify yourself 5 C. F. R. Part 2535.402(b)(2), or get written authorization, 5 C.F.R. Part 2635.605, and you will need to remember certain basic principles. 5 C.F.R. Part 2635.101. and check your bar rules.

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Post Employment — Permanent Bar Prohibits any communication to or appearance before an employee of the United States with the intent to influence, on behalf of any other person regarding a particular matter involving a specific party or parties, in which s/he participated personally and substantially as a government employee, and in which the United States is a party or has a direct and substantial interest. 18 U.S.C. §207, 5 C.F.R. Part 2641.201(a).

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Post Employment — Two-Year Bar Similar to permanent bar, but applies to all matters under the supervisory responsibility of the former government employee during his or her last year of government service, and disqualification is limited to two years, 18 U.S.C. §207(a)(2), 5 C.F.R. Part 2641.202(a).

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Post Employment — One-Year Bar No aiding and advising in trade or treaty negotiations, 18 U.S.C. §207(b), 5 C.F.R. 2641.203 No appearance or communication for former senior employee, 18 U. S. C. §207(c), 5 C.F.R. §2641.204 No aiding or representing a foreign entity before United States for senior and very senior employees, 18 U. S. C. §207(f), 5 C.F.R. Part 2641.206

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Senior Employees — Two-Year Bar Former very senior employees subject to a two year bar on communication with former agency and certain government officials, 18 U.S.C. §207(d), 5 C.F.R. Part 2641.205.

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Sharing Fees Prohibition from receiving compensation for “representational services” in connection with a particular matter in which the United States is a party or has a direct and substantial interest 18 U. S. C. §203.

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS Applicable Ethics Rules ABA Model Rule 1.11 (Government Officials) ABA Model Rule 1.12 (Judges)

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS ABA Model Rule 1.11 Prohibits post government employment on matters where lawyer participated personally and substantially or where lawyer has “confidential government information” Adversity not required Prohibition is waiveable Prohibition not imputed if lawyer is timely screened and does not share in fee

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS ABA Model Rule 1.11 (continued) Covers only matters “involving specific party or parties,” e.g., not general rulemakings. Also covers current government officials and confirms that they are subject to Rules 1.7 and 1.9 Prohibits current government officials from negotiating for employment with parties to matter in which officials is participating personally and substantially

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS ABA Model Rule 1.12 Prohibits lawyers from representing parties in matters where they participated personally and substantially as judges or law clerks Prohibits judges from negotiating for employment with parties or lawyers to a matter in which judge is participating personally and substantially Law clerk can seek employment on such matters if they inform the judge

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #1 A law student is an intern for a judge during the school year and then is a summer associate at law firm which has cases before the judge. Does the firm have to withdraw? Can the law student work on the cases now before the judge he interned for?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #2 The law student graduates, passes the bar and is a judicial law clerk for a year. In the middle of the clerkship year, the clerk starts to look for jobs and wants to apply to a firm which has multiple cases before the judge. Can the clerk negotiate for employment with firms with active cases before the judge? Can the law clerk work on cases before the judge where firms he is applying to are counsel?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #3 The law clerk takes a job at a local firm which has a number of pending cases before the clerk’s judge. Does the firm have to withdraw? Can the lawyer appear before his former judge?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #4 Unhappy with the experience of an associate in private practice, the lawyer gets a job at the SEC. Can the lawyer litigate against his old firm? Can the lawyer work on cases that were at his firm when he was there? Cases that he worked on?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #5 After five years at the SEC, the lawyer wants more trial experience and gets a job with a nearby United States Attorney’s Office. He is asked to prosecute a case that he worked on while at the SEC. Can he do so? What if the SEC objects?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Alternate Scenario #5 After five years at the SEC, the lawyer wants more trial experience and gets a job with a nearby State’s Attorneys office. He is asked to prosecute a case that he worked on while at the SEC. Can he do so? What if the SEC objects?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #6 Assume that lawyer, while working at the SEC or DOJ in D.C., is only licensed in faraway state A. Lawyer violates model rule 4.2 (talking with individual known to be represented) during an investigation prior to charges being filed. DOJ does not believe 4.2 applies pre-arrest or pre-indictment. State A thinks it does. Does the lawyer have possible exposure to discipline from State A?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #6 (continued) In re Doe, 801 F. Supp. 478 (D.N.M. 1992) (As only state in which DOJ attorney was admitted, New Mexico had jurisdiction to investigate ethics complaint regarding a violation of Rule 4.2 that occurred in D. C.; ethics prosecution should not have been removed to Federal Court); U.S. v. Ferrara, 847 F. Supp. 478 (D.N.M. 1992) (supremacy clause did not prevent New Mexico from asserting jurisdiction over AUSA employed in D. C.); In re Howe, 940 P.2d 159 (N.M. 1997) (AUSA in question received public censure for Rule 4.2 violations + hefty costs). 

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #7 Ex: Here in Georgia, O.C.G.A. 45-10-1 et seq., contains a general code of conduct and conflict of interest prohibitions; Ethics in Government Act, O.C.G.A. 21-5-1 et seq., concerns acceptance of honoria and postemployment lobbying restrictions. There is generally no direct conflict between professional responsibility standards and government ethics legislation. Whichever has more rigorous standard applies to any given situation.

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #8 The lawyer gets a job at a local private firm. While with the US Attorney’s Office, he defended a TSA agent in a civil suit brought by travelers claiming to be the victims of overly aggressive searches. The case is on-going when he leaves. His new firm is agreeable to him taking the case pro bono. Can he do so?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #9 While at the SEC, the lawyer did a stint in the branch that drafted regulations implementing portions of the Dodd-Frank financial reform bill. In private practice, he is asked to defend a client accused of violating those regulations? Can he do so?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #10 In private practice, the lawyer is asked to serve as an expert witness in a legal malpractice suit and testify about the standard of care for defending a target of an individual subject to an SEC investigation. Can he do so?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #11 Our lawyer is tired of the private sector and federal practice. He envisions his golden years in the noble endeavor of state public employment. Besides the Rules of Professional Conduct in the lawyer’s jurisdiction, lawyer will also be subject to governmental ethics legislation, applicable to most public employees. The National Conference of State Legislatures’ website contains a list and links to statutes in all 50 states at http://www.ncsl.org/default.aspx?tabid=15352

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #12 The lawyer’s children have graduated from college and have become self-sufficient (assume this to be possible). The lawyer can afford to go back into government and applies to be the US Attorney for his local district. Can he still defend clients prosecuted by that Office? What disclosures does he have to make, if any? When in the application process do the disclosures need to be made?

MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS A career journey — Scenario #13 The lawyer becomes the US Attorney and stays in that position until there is a change of administration. At that point, he rejoins his old firm as a senior counsel. Can he or his firm defend clients whose prosecutions were begun under his tenure as US Attorney? Of course, as US Attorney, his name was on every pleading in every case filed by his Office.

WHAT GOVERNMENTAL ETHICS LEGISLATION TYPICALLY COVERS When a public employee may discuss future employment with vendors or other interested persons How soon may a lawyer appear before his/her agency after leaving public employment? Moonlighting Use of confidential information Conflicts of interest financial or familial interests

CONTACT INFORMATION Thomas B. Mason Zuckerman Spaeder LLP tmason@zuckerman.com 202.778.1844 George R. Clark Attorney at Law GRClark@GeorgeRClark.com 202-331-3200 Peggy Love Law Firm Name email@firmname.com 202-555.5555 Sherri D. Goodman Goodman Advocay 202-331-3200