1. Seeking Employment and Post Employment Obligations for Government Attorneys Entering the Private Sector Peggy LoveStephen J. Csontos Deputy Ethics OfficialAttorney at Law Office of General Counsel Environmental Protection Agency

2. Why is this important? More than one set of rules: –Standards of Conduct, 5 C.F.R. Part 2635. –Federal criminal statute, 18 USC §207, 5 C.F.R. Part 2641. –State Bar rules. Grass may not be greener on the other side –You could be disqualified from doing the work you were hired to do after leaving Federal service. –Law firm could be disqualified from handling a major case. 2

3. What will we cover? Seeking employment. –When you are doing it. –What you need to know. Post employment. – Federal criminal statute, 18 U.S.C. §207, 5 C.F.R. Part 2641. – ABA and D.C Bar Rules. Confidentiality. –Standards of Conduct, –Standards of Conduct, 5 C.F.R. 2635.703 – –ABA and D.C. Bar Rule 1.6. Compensation, 18 U.S.C. §203. 3

4. Seeking Employment Imputed financial interests. –The financial interests of any person with whom you are negotiating employment are imputed to you. –Their financial interests are treated as if they were your own. 5 C.F.R. Part 2635.402(b)(2) 4

5. Seeking Employment When you are seeking employment –with persons whose financial interests –would be directly and predictably affected by – particular matters in which you are –participating personally and substantially, –then you need to disqualify yourself from –participation, 5 C.F.R. Part 2635.402, –or get written authorization, 5 C.F.R. 2635.402(d), –remember certain basic principles, 5 C.F.R. Part 2635.101, and –check your bar rules. 5

6. Seeking Employment occurs when you... make an unsolicited communication regarding work, make an unsolicited communication regarding work, engage in negotiations regarding possible work, engage in negotiations regarding possible work, receive a positive response to a job application, or receive a positive response to a job application, or make a response, other than rejection, to a communication regarding work. 5 C.F.R. Part 2635.603(b)(1) make a response, other than rejection, to a communication regarding work. 5 C.F.R. Part 2635.603(b)(1) 6

7. Seeking Employment ends when... you/prospective employer reject the possibility of employment and discussions end, or you have not received any interest after two months. 5 C.F.R. Part 2635.603(b)(2) However, a response that defers discussions does not end your status. 5 C.F.R. Part 2635.603(b)(3) 7

8. Personal and Substantial Participate personally - participate directly (direct and active supervision of a subordinate). Participate substantially - your involvement is of significance to the matter. For example, approving official for funding an activity, making recommendations, establishing criteria for contracts or grant awards, making decisions, investigating or giving advice. 5 C.F.R. Part 2635.401(b)(4) 8

9. Matter Particular matter focuses on specific person(s) or a discrete & identifiable class of persons (judicial proceeding, application, request for ruling). Does not need to involve formal parties. May include governmental action (legislation, policy making) that is narrowly focused on the interest of a discrete and identifiable class of persons. 5 C.F.R. Part 2635.402(b)(3) 9

10. Recusal/Disqualification means... avoiding participation in a matter. To recuse yourself, –notify those who make assignments to you and – those who may consult with you on matters that could impact the affected business. Oral notice sufficient; written advisable. 5 C.F.R. Part 2635 Subpart F and 5 C.F.R.Part 2635.402 10

11. Disqualification begins when... you agree to discuss the prospect of employment, regardless of who made the first contact, or you send a targeted resume to any person or entity over which you have responsibility in your official duties. 5 C.F.R. Part 2635.603(b)(1) 11

12. Disqualification ends when... you are no longer seeking employment, or if you do not hear from a potential employer for two months after sending out an unsolicited resume. 5 C.F.R. Part 2635.402(b)(2) 5 C.F.R. Part 2635.402(b)(2) 12

13. Written Authorization You may participate in a particular matter that has a direct and predictable effect on the financial interests of a prospective employer if you obtain a written waiver under 18 U. S. C. 208(b)(1) from your ethics official. 5 C.F.R. 2635.605. To be considered, must make full disclosure. 5 CF.R. Part 2635.402(d), 5 C.F.R. Part 2640.301. Agency determines that disqualifying interest is not so substantial as to be deemed likely to affect the integrity of your services to the Government. 5 CF.R. Part 2635.402(d), 5 C.F.R. Part 2640.301. 13

14. Basic Principles to Remember You cannot use your public office for private gain, or give preferential treatment to any private entity or individual, or engage in activities that conflict with your official duties, and you must avoid any action that gives the appearance that you are violating these rules. 5 C.F.R. Part 2635.101 14

15. Seeking Employment - Bar Rules Lawyer serving as public officer/employee shall not negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially. Exception for adjudicative officers. ABA MR 1.11(d) D.C. doesn’t address “negotiating,” but prohibits a lawyer from accepting other employment in a matter in which the lawyer participated personally and substantially as a public officer or employee. D. C. Rule 1.11(a). No waiver offered under bar rules. 15

16. Seeking Employment Summary When you are seeking employment –with persons whose financial interests would be –directly and predictably affected by particular matters –in which you are participating personally and substantially, then you need to –disqualify yourself from participation in the matter until –you are no longer seeking employment, or get written authorization, and you will need to –remember the basic principles, and –check your bar rules. 16

17. Federal Criminal Statute, 18 U.S.C. §207 Permanent Bar Key Elements No former employee shall –knowingly, with the intent to influence, make any communication to or appearance before –an employee of the United States on behalf of any other person –in connection with a particular matter involving a specific party or parties, –in which s/he participated personally and substantially as an employee, and –in which the United States is a party or has a direct and substantial interest. 18 U.S.C. §207 (a)(1), 5 C.F.R. §2641.201(a) 17

18. Federal Criminal Statute, 18 U.S.C. §207 Two Year Bar Key Elements Similar to permanent bar, but –applies to all matters that the former employee knows or reasonably should know were pending under his/her official responsibility during his/her last year of government service, and the –disqualification is limited to two years. 18 U.S.C. §207 (a)(2), 5 C.F.R. Part 2641.202(a) 18

19. Federal Criminal Statute, 18 U.S.C. §207 One Year Bar Key Elements Trade or treaty negotiations –one-year restriction on aiding and advising that applies to a former government employee who participated in an ongoing trade or treaty negotiations during his/her last year of federal service. 18 U.S.C. §207(b), 5 C.F.R. Part 2641.203 Former senior employee –No appearance or communication before former agency on behalf of another with intent to influence. U.S.C. 207(c) –No appearance or communication before former agency on behalf of another with intent to influence. 18 U.S.C. 207(c) Former senior and very senior employees –No aiding or representing a foreign entity before United States with the intent to influence a decision of the United States. 18 U.S.C. 207(f), 5 C.F.R. Part 2641.204 19

20. Federal Criminal Statute, 18 U.S.C. §207 Two Year Bar Key Elements Former Very Senior Employees also subject to a two year bar – – on communication with former agency, and certain government officials – –with the intent to influence. 18 U.S.C. §207(d), 5 C.F.R. Part 2641.205 20

21. Rule 1.11 Key Elements ABA Model Rule 1.11 Personal and substantial participation As a public officer or employee In a matter involving a party or parties Requires disqualification From representation of another client In the same matter D.C. Rule 1.11 Personal and substantial participation As a public officer or employee In a matter involving a party or parties Requires disqualification From other employment In the same/substantially related matter 21

22. Rule 1.11 Key Elements Cont’d. ABA Model Rule 1.11 When a lawyer is disqualified, firm is also disqualified unless –Lawyer timely screened from profits –Written notice promptly given to government agency D.C. Rule 1.11 When a lawyer is disqualified, firm is also disqualified unless –Lawyer timely screened from profits –Written notice promptly given to government agency 22

23. Rule 1.11 Key Elements Cont’d. ABA Model Rule 1.11 Permits representation with agency consent Includes a prohibition on negotiating employment with an opposing party or lawyer Knowledge of confidential government information is a separate basis for disqualification D.C. Rule 1.11 Rule does not provide for agency consent 23

24. Rule 1.11 vs. 18 U.S.C. §207 ABA & D.C. Rules 1.11 Applies to behind the scenes representation or employment Applies to behind the scenes representation or employment 18 U.S.C. §207 Applies only to knowing communication with or appearance before a court or agency United States is a party or has a direct and substantial interest 24

25. Post Employment Summary The post employment rules for government lawyers entering the private sector can get challenging. We have shown you how the Federal criminal statute differs from the ABA Model Rule and the D. C. Bar Rule. The Federal statute permits a former government attorney who is otherwise prohibited from representing a client before the federal government to have behind the scenes conversations with the client and his law firm. The ABA Model Rule prohibited such activity unless written consent is obtained. The D. C. Rule prohibits even behind the scenes conversations and no waiver is available. 25

26. Confidentiality: Standards of Conduct Prohibited from using non-public information to further your own private interests or the interests of others. 5 C.F.R. Part 2635.703 Required to disclose waste, fraud, abuse, and corruption to appropriate authorities. 5 C.F.R. Part 2635.101(b)(11). You must avoid actions creating the appearance that you are violating the law or the ethical standards. 5 C.F.R. Part 2635.101(b)(4). Test: Whether a reasonable person with knowledge of the relevant facts would determine that they create an appearance of wrongdoing. 5 C.F.R. Part 2635.101(b)(14). 26

27. Confidentiality Key Elements ABA Model Rule 1.6 General rule is that “information relating to the representation” of a client cannot be revealed. A lawyer may not use confidential information relating to a client to `material disadvantage of the client MR 1.9(c) A lawyer may not use confidential information relating to a client to `material disadvantage of the client MR 1.9(c) D.C. Rule 1.6 General rule is that “confidences” and “secrets” of a client cannot knowingly be revealed. A lawyer may not knowingly use confid- ences or secrets to the client’s disadvantage, or for the advantage of the lawyer or another client 27

28. Confidentiality Key Elements cont’d. ABA Model Rule 1.6(b) A lawyer may reveal information relating to the representation to the extent reasonably believed necessary –To prevent “reasonably certain death or substantial bodily harm,” or D.C. Rule 1.6(c) A lawyer may reveal client confidences or secrets to the extent reasonably necessary –To prevent a criminal act reasonably believed likely to result in death or substantial bodily harm –To prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons involved in proceedings. 28

29. Confidentiality Key Elements cont’d. ABA Model Rule 1.6(b) To prevent client from committing a crime or fraud reasonably certain to result in substantial injury but only if the crime or fraud was facilitated by use of the lawyer’s services. To prevent, mitigate or rectify substantial injury to financial interests or property of another but only if the crime or fraud was facilitated by use of the lawyer’s services. D.C. Rule 1.6(d) To prevent client from committing a crime or fraud reasonably certain to result in substantial injury for which the lawyer’s services were used. To prevent, mitigate or rectify substantial injury to financial interests or property of another for which the lawyer’s services were used. 29

30. Confidentiality Key Elements cont’d. ABA Model Rule 1.6 To secure legal advice about the lawyer’s “compliance with these Rules”. To establish a claim or defense in certain instances. To comply with another law or court order. D.C. Rule 1.6 To secure legal advice about the lawyer’s compliance with the law, including these rules. To establish a claim or defense in certain instances. When permitted by the rules or required by law or court order For a government lawyer, when permitted or authorized by law. 30

31. Summary: Confidentiality and Privilege Rules similar: Basic rule of maintaining your client’s confidences applies under the Standards, the ABA MR and the DC Rule. Rules differ: MR/DC Rule may reveal if client consents. Not with Standards. FOIA demonstrates a statutory balancing of government’s right to retain vs. public’s right to obtain information. Protecting public safety or national security may prevail. Frost v. Perry, 161 F.R.D. 434 (D. Nev. 1995). 31

32. Compensation Former employees are prohibited from receiving, either directly or indirectly, any 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 32

33. Compensation cont’d. Representational services means –communications to or appearances before –Federal entities –with the intent to influence the Government –on behalf of a third party. Includes legal and consulting services. 33

34. Compensation cont’d. Prohibition applies equally to representational services rendered by the former employee personally or by another if the employee shares in the compensation. Prohibition attaches if the covered representational services were provided at a time when the individual was a Government employee, regardless of whether the individual provided those representational services. 34

35. Compensation, cont’d. Associate – not affected if paid fixed salary. Cannot trace to services before the government. Bonus – cannot be calculated on the basis of the firm earnings that include compensation for services before the government. 35

36. Summary: Compensation If you leave Federal service, you cannot be paid for representational services involving a particular matter in which the United States is a party or has an interest. It doesn’t matter if you did the representing. The prohibition applies if the services were rendered when you worked for the government. 36

37. Post Employment Summary The post employment rules for government lawyers entering the private sector can get challenging. We have shown you how the Federal criminal statute differs from the ABA Model Rule and the D. C. Bar Rule. The Federal statute permits a former government attorney who is otherwise prohibited from representing a client before the federal government to have behind the scenes conversations with the client and his law firm. The ABA Model Rule prohibited such activity unless written consent is obtained. The D. C. Rule prohibits even behind the scenes conversations and no waiver is available. 37

38. Resources Adv. Op. 99 x 14(2) ( deferring to agency views on whether sunset reviews of agency orders should be treated as the same "particular matters involving specific parties" as the underlying original investigations even though another Department involved in the review reached a different conclusion). Adv. Op. 2002-5 (pre-licensing matters relating to Yucca Mountain were part of the same particular matter involving specific parties as subsequent licensing proceedings). Brown v. Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc). In re Sofaer, 728 A.2d 625 (D.C. 1999). United States v. Phillip Morris Inc., 312 F. Supp. 27 (D.D.C. 2004). D.C. Legal Ethics Opinion 308 (2001) “Ethical Constraints on Lawyers Who Leave Private Employment for Government Service. Government Lawyers and Confidential Norms, 85 Wash. U. L.R. 1033 (2007). 38

39. Hypotheticals 39

40. 1. Ethical obligations for a government attorney seeking employment For almost 5 years, Tom Jones, an attorney with the ABC Agency’s OGC, has been the agency counsel working with the DOJ Civil Division, in defending a class action suit brought against the ABC Agency and several pharmaceutical companies regarding bill practices. Realizing that the 5-year anniversary of his entry on duty is near at hand, Tom calls James Jones, a former colleague at the ABC Agency who is now in private practice, to ask for advice about seeking employment. James is a partner with the L & W Law Firm. James asks Tom for a resume. The L & H Firm represents one of the drug companies in the class action litigation, but James has no connection with that litigation. 1. May Tom send his resume to James? 2. If Tom decides not to send his resume to James, may Tom continue to represent the ABC Agency in connection with the class action law suit? 3. Do you have any advice for Tom or for the ABC Agency? 40

41. 2. Ethical obligations for government attorneys entering the private sector At ABC Agency, a government agency that provides reimbursements for certain categories of medical expenses, Will Smith, a government attorney, participated in the agency’s promulgation of regulations for the submission and payment of claims. Smith also worked on an administrative proceeding brought by XXX Health Services challenging the agency’s denial of reimbursement for Heart Widgets, and he worked on a lawsuit brought by YYY challenging the regulations. 1. 1. May Smith represent a client, other than XXX or YYY, who has a claim against the agency under the Reimbursement Regulations? What if he waits a year? 2. 2. May Smith represent XXX before ABC Agency on the claims he worked on while at the agency? What about representing XXX on new and different claims under the Reimbursement Regulation? 3. 3. May Smith represent YYY in claims before the agency? 4. 4. May Smith’s partners or associates represent the clients in the matters above? 41

42. Questions? 42