Detail of Department of Justice Attorneys to Congressional Committees

May 16, 1977

77-26 MEMORANDUM OPINION FOR THE
DIRECTOR OF THE DEPARTMENT OF
JUSTICE TASK FORCE ON CRIMINAL CODE
REVISION
Detail of Department of Justice Attorneys to
Congressional Committees

You have requested the opinion of this Office regarding the legality
and ethical propriety of “loaning” one or more attorneys employed by
the Departm ent of Justice to the Subcommittee on Criminal Justice of
the House Judiciary Committee in connection with that subcommittee’s
work on the proposed revision to the Federal Criminal Code. You state
that this work is expected to take about 18 months to complete. We
conclude that such an arrangement would be legal, but that it raises
potential ethical problems that should be addressed carefully by those
concerned, assuming that the Department is otherwise favorably dis­
posed on the anticipated request from the subcommittee.
The legality of such an arrangement has previously been considered
by this Office with regard to the detailing of an Assistant United States
Attorney to a House committee. It was concluded that 2 U.S.C.
§ 72a(0* operates as affirmative authorization for the type of detailing
involved here.
Responding to your question concerning the ethical propriety, we
have the following comments:
Assuming that an attorney so detailed would continue to be paid by
the Departm ent o f Justice and that he would expect to return to duty
in the Departm ent at the conclusion of his work for the subcommittee,
it is reasonable to suppose that he would, in his work on the Code
revision, tend to advance the position taken by the Department on that
1T h a t provision states:
N o com m ittee shall appoint to its staff any experts o r other personnel detailed or
assigned from any departm ent o r agency o f the G overnm ent, except w ith the w ritten
perm ission o f the Com mittee on Rules and A dm inistration o f the Senate o r the
C om m ittee on House A dm inistration o f the H ouse o f Representatives, as the case
m ay be.

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revision. Thus, Canon 7 of the American Bar Association Code of
Professional Responsibility is implicated in that the attorney may not be
able adequately to represent the interests of both the Department and
the subcommittee. Although the Code of Professional Responsibility,
specifically EC 7-16, distinguishes between the role of a lawyer in the
legislative process and his role in representing the interests of his client
in an adjudicatory process, it may be that the continuing duty owed to
the Department by a Department attorney “loaned” to the subcommit­
tee might place that attorney in a difficult position if the interests of the
subcommittee and those of the Department w ere'adverse in any given
situation.
This problem suggests yet another question—who is the attorney’s
client, the Department or the subcommittee? If the client is the subcom­
mittee, then the attorney’s ability properly to represent his client’s
interests may be, as shown above, drawn into question. Also, if the
subcommittee is the client, the possibility that the attorney will have to
draw upon information received by him in confidence in connection
with his employment in the Department is great, implicating Canon 4
of the Code of Professional Responsibility.
It is true that under DR 5-105(c) and DR 4—101(c)(1) a lawyer may
continue to represent multiple clients and may disclose otherwise confi­
dential information so long as there is full disclosure to all clients and
consent by them to his actions. We think that such consent to the
proposed arrangement should be worked out in advance if the detailed
attorney is to have the subcommittee as his client. If the attorney were
instead to be viewed as counsel for the Department detailed by the
Attorney General to work with, rather than for, the subcommittee on
the Code revision, the ethical problem would, in our view, no longer
exist.
John M. H arm on
Acting Assistant Attorney General
Office o f Legal Counsel

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