Application of Department of Justice Attorney to Argue Civil Rights Case for Private

M ay 24, 1977

77-28 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION
Standards of Conduct—Application Pursuant to 28
CFR § 45.735-9(c)

This is in response to your request for our evaluation of Mr. A ’s
second application for leave to argue a civil rights case for private
plaintiffs.
Before coming to the Department, Mr. A was counsel for the plain­
tiffs under the auspices o f a private nonprofit organization concerned
with civil rights policy and litigation. The United States is not a party
to the case, and the Department has not appeared as amicus or other­
wise.
The matter is governed by the Departm ent’s Standards of Conduct,
28 C FR § 45.735-9(a), which provide that:
No professional employee shall engage in the private practice of
his profession, including the practice of law, except as may be
authorized by or under paragraph (c) or (e) of this section.
Paragraph (c) provides that the Associate Attorney G en eral1 may
make specific exceptions to paragraph (a) in “unusual circumstances.”
Applications under paragraph (c) must be transmitted through the ap­
plicant’s superior.2 Also relevant is 28 C FR § 45.735-9(d), which pro­
hibits employees from engaging in off-duty employment which would
interfere with the performance of their official duties, create actual or
apparent conflicts of interest, or reflect adversely on the Department.
From the attached documents, we understand that the case in ques­
tion is a class action, filed in May 1973, which alleged hiring discrimi­
nation by the local police and fire departments in violation of 42 U.S.C.
§§ 1981 and 1983. In January 1975 the district court found that the
police department had engaged in racial discrimination and ordered
affirmative relief, including allocation of new hires by race. The deci­
sion was affirmed by the circuit court in June 1976. In May of that
year, the fire department case was settled by a consent decree provid-
1 F o rm erly the D eputy A ttorney G eneral.
3 28 C F R § 45.735(e), which governs participation in legal aid program s for the indi­
gent, does not apply to this m atter.

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ing for similar relief. However, in October 1976 the circuit court
vacated its decision and remanded the police department case to the
district court for rehearing in the light of Washington v. Davis, 426 U.S.
229 (1976).
Mr. A entered on duty on January 31, 1977. Insofar as we are aware,
he could have delayed coming to the Department until he had briefed
and argued the case. Instead, on December 26, 1976, he requested leave
from the then head of the Civil Rights Division and the then Deputy
Attorney General, pursuant to § 45.735-9(c), to brief and argue the case
on rehearing after he came to the Department.
In substance, Mr. A alleged that under Davis the district court would
have to consider the factual issue of the police department’s discrimina­
tory intent, and that he was uniquely qualified to argue this issue. In
support of the request, Mr. A stated that he had been lead counsel from
the inception of the case, that his replacement was unfamiliar with the
factual background, that local counsel was not expert in the legal issues
involved, that no transcript had been made because the district court
preferred to videotape the testimony, and that he had already drafted a
substantial portion of the brief. Mr. A asserted that his familiarity with
the case, his trial notes, and his legal skills were of critical importance
to the successful presentation of the police department case. He also
stated that he would disclaim any connection with the United States
Government and would receive no compensation for his efforts.
On January 31, 1977, the Acting Deputy Attorney General ruled that
in the light of the “unusual circumstances,” Mr. A might assist in the
preparation of plaintiffs’ brief but could not participate in any way in
oral argument. Moreover, his ruling was subject to the conditions that
Mr. A ’s efforts not interfere with his official duties, that he receive no
compensation, and that his work for the private, nonprofit organization
would create neither an actual nor apparent conflict of interest, as
required by 28 CFR § 45.735-9(d). Mr. A prepared and signed plain­
tiffs’ brief, in which he stated that he was not acting in his official
capacity and that his participation did not represent the Department or
the United States. The brief was filed on March 21, 1977. The case is
ready for argument, but argument has not yet been scheduled.
The Department has already ruled that Mr. A’s involvement in the
case was a sufficiently “unusual circumstance” under 28 CFR § 45.735-
9(c) to permit him to commit his time and effort to the brief and to
identify himself with it. The immediate question here is whether a
distinction should be drawn between preparing and signing the brief
and participating in oral argument.
The ruling of the Acting Deputy Attorney General does not discuss
the distinction between the two. The Executive Assistant to the Asso­
ciate Attorney General informs us that it is the Department’s policy not
to allow its attorneys to practice in the Federal courts. He says that an
exception was made for Mr. A to finish the brief because he had
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 already done substantial w ork on it and there did not appear to be time
for his successor to become sufficiently familiar with the case before
the brief was due. This was not true of oral argument, which had not
yet been set.
The possible impact on the Department if Mr. A argues the case is
threefold. First, a portion of his time and energy will be absorbed.
Second, there is a risk th at the Department will be identified with
plaintiffs’ position in the public mind, despite any disclaimer by Mr. A.
Third, he will continue his professional association with the private
organization, which is one that interests itself in litigation related to his
official duties. See 28 CFR § 47.735-9(d).
The hardship to Mr. A’s former clients if he does not argue their case
is substantially less than if he had not prepared the brief. His replace­
ment has had more time to familiarize himself with the case, and it
should be possible to reduce the videotaped testimony to a transcript.
Oral argument has not yet been scheduled. Moreover, as shown by the
timing o f his initial request, Mr. A knew before he came to the Depart­
ment that its regulations forbade outside professional employment. He
and his clients have had at least 4 months to arrange their affairs
accordingly. In the light o f these facts, we do not believe that there is
sufficient reason to allow M r. A. to continue his private practice while
a Government employee.
In conclusion, the responsibility for ruling on Mr. A ’s request lies in
the first instance with the Assistant Attorney General for the Civil
Rights Division and ultimately with the Associate Attorney General. In
our opinion, the unusual circumstances that were found to justify Mr.
A ’s appearance on the brief arose during the short time between his
entry on duty and the due date of the brief. Because these circum­
stances no longer exist, ou r evaluation is that it would not be unduly
harsh to deny Mr. A leave to argue the case, although that decision is
not ours.
L eon U lm a n

Deputy Assistant Attorney General
Office o f Legal Counsel

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