Brown v. District of Columbia Board of Zoning Adjustment

Dissenting opinion by

GALLAGHER, Associate Judge, Retired, with whom NEBEKER, Associate Judge, and KERN, Associate Judge, Retired, join:

In this irresolute decision, the court repulses our Bar in its earnest effort to establish in the District of Columbia an uplifting standard of legal ethics on “changing sides” by former government lawyers who later enter private practice (“revolving door”). In a backward-looking opinion, our Bar is here being told in so many words that it is seeking for itself a higher standard of ethics than the court is willing to abide. Particularly in these days of recurring public criticism of the legal profession, I would have thought this court would be entirely willing to support the Bar in its commendable effort.1

Before I discuss the two major errors in the court’s opinion, I will set out in very summary fashion the protracted history of this case.

When it first came to us (Brown I),2 the Board of Zoning Adjustment (“the BZA” or “the Agency”) had denied a request to disqualify the law firm under the Canon of Legal Ethics here being considered. The Chairman of the BZA, speaking for the Board stated:

I do not know if the Board has the authority or ability to even judge these things. Clearly the place to judge a conflict of interest or a violation of any disciplinary rules of the Bar Association or what have you would be with the Bar Association itself. I suspect ... that if you had a question of that kind, the proper forum would be whatever disciplinary Board you might have in the Bar Association.
It seems to me we are taking our jurisdiction a bit far when we try to interpose our interpretation of what the disciplinary rules of the Bar Association provide and whether this is in conflict with that or not. We have enough problems right now in trying to interpret these [zoning] Regulations.

Actually, the agency did have the initial authority and the responsibility for the integrity of its proceedings, and so we remanded for further proceedings. Brown I, supra, 418 A.2d at 1285.3 I do agree, however, with one implication of the Chairman’s ruling. I agree that it is the ultimate responsibility of this court — aided by our Bar — to establish the standard of legal ethics in the District of Columbia. We should not shun this responsibility in the guise of applying the often stated rule in administrative law that agency findings of fact must be accepted by the reviewing *61court if supported by substantial evidence. I will go into this later.

After the remand proceedings, the BZA made findings of fact and conclusions of law in major respects that strain one’s credulity, and the case came back to this court. After a decision by the hearing division reversing the BZA decision, the court went en banc in this case and the issues became sharpened for the establishment by the full court of the governing law on “revolving door” in this jurisdiction. The court on its own motion requested the Bar, through its Committee on Legal Ethics, to file a brief and orally argue as amicus curiae. It is fair to say that this is a seminal decision on this issue.

Basically, this is an uncomplicated case if one stays with reality and simple fundamentals. In explaining the case, I see no need to get lost in the woods of the majority opinion.

Two attorneys were involved while in government with problems and litigation related to the construction of a building (the Westbridge) in the “West End” of Washington, D.C. Later, they both joined a law firm and proceeded to represent the same property owner, Mr. Carr, in a proceeding involving the same property and the same building4 in its final stages of construction. In all instances, the proceedings specifically involved increasing the density of space in the building for marketing purposes. The first proceeding involved increasing the density of space for marketing purposes by raising the building height from 60 to 90 feet. The present proceeding involves increasing space density for marketing in the lower end of the building (for parking). Earlier the space density increase for marketing was for upstairs in the building and this time it is for downstairs in the same building (the West-bridge). The main question of law is whether, for the purpose of this proceeding, there constituted a “substantial relationship” between the first proceeding to increase density for marketing space upstairs and the present proceeding to increase density of space for marketing downstairs in the very same building owned by the very same party. The BZA enters findings that are defective, as I shall demonstrate, and then concludes that the earlier transactions were “in no way connected ”5 with the current BZA proceeding concerning increased parking, a fatal error in its ultimate finding of fact.

Before discussing the evidentiary and legal issues before the court, it might be well to outline (1) what the function of the BZA was; (2) what the Code of Professional Responsibility provides and its rationale; (3) how the Board did and did not perform its proper function; and (4) what is now before us for review.

The facts in this case, as I say, actually are not complicated. Mr. Carr decided several years ago to build a project in the “West End” section of the District of Columbia with the geographical focal point being 24th and Pennsylvania Avenue, N.W. *62At that time, the building height limitation there was 60 feet rather than the usual 90 feet, due to its proximity to Rock Creek Park. Mr. Carr decided to institute a legal proceeding to get the height limit raised from 60 to 90 feet, adding extra stories to the building. He instituted an equitable proceeding for this purpose and was successful in adding the extra stories to the building for marketing. Later, there were additional discussions with then Corporation Counsel C. Francis Murphy about a proposed air-rights condominium on the same site but this proposal was soon dropped because of the Corporation Counsel’s unfavorable reaction on the proposal’s chance for success, among other things. It is of significance in this case that the Corporation Counsel, from whose office the two attorneys here involved emanated, is legal advisor to the BZA, among other district agencies. As a matter of fact, in the remand proceeding before the BZA, the official presence of an Assistant Corporation Counsel, presumably in the advisory capacity of that office, is noted on the record. The record is silent as to whether the Assistant Corporation Counsel also assisted in the preparation of the BZA’s findings of fact in this proceeding.

According to correspondence presented to the Board through petitioners’ motion to reopen the hearing, in advance of formal application of the project plan, Carr’s attorneys met with Corporation Counsel Murphy. Wilkes and Artis represented Carr in the early Westbridge development proceedings primarily through senior partner Norman Glasgow, Sr. Two letters, dated May 24, 1973, and June 27, 1973, and written on Carr’s behalf to a company apparently then negotiating sale of specific West End property to Carr, describe various contacts between Glasgow and Murphy. Relevant portions are excerpted:

Mr. Glasgow states that it is absolutely necessary to clear the application with Corporation Counsel C. Francis Murphy, prior to filing the application, and he hopes to discuss this with Mr. Murphy next week. Even if Mr. Murphy has no
suggested changes and the application is then filed promptly, and even if no opposition develops, Mr. Glasgow believes that it will take the Zoning Commission longer than November 1, to approve the zoning application.... Moreover, he does suspect that Mr. Murphy will have some proposed changes and will want to study the proposed zoning application before letting him know what those changes are.
* * * * * *
After several attempts I [another Carr attorney] was able to contact Norman Glasgow by telephone. He stated that on June 8th, 1973, he had a meeting with the Corporation Counsel, C. Francis Murphy, to discuss the zoning proposal in advance of the formal application. As a result of the meeting, Mr. Glasgow is no more optimistic than he was at last report — -that is, he does not think it is possible to obtain this zoning by the November 1st, 1973, deadline.
As I understand the conversation, Mr. Glasgow and Mr. Murphy discussed four approaches to obtaining this new zoning. Only two of the approaches seemed to be feasible. Of these two, one of them requires Mr. Glasgow to research legislative history to determine whether Congress will permit the zoning contemplated. Perhaps we could be of some assistance to him in this research.
The other approach involving redefining a highway, thereby changing the definition of a building setback line. Mr. Murphy encouraged Mr. Glasgow to pursue this method.

Also filed with the BZA on the same day, was an April 1, 1974, memorandum from Murphy to Martin Klauber, Executive Secretary of the Zoning Commission. The memorandum states that Murphy had reviewed Carr’s application and concluded that it should be processed as a petition to amend the text of zoning regulations, *63thereby hastening Zoning Commission review.6

The Zoning Commission eventually adopted a text and map designating the West End section as a Mixed Use, CR zone district, the purpose of which is to encourage a diversity of compatible land uses, including residential, office, retail, recreational and light industrial. D.C.Zoning Reg. § 4501.1 (1982) (codified as amended at 11 DCMR § 600 (1984)). Additionally, the plan seeks to reduce the flow of traffic and develop areas devoted primarily to pedestrians. Id. These objectives are accomplished in part by prescribing the necessary minimum and maximum numbers of parking spaces for commercial and residential development through a floor area ratio (FAR) formula based upon bulk square footage and residential units. Id. at §§ 4504 et seq. (codified as amended at 11 DCMR § 631 et seq. (1984)).

Having later obtained an increase of some three stories for the building, this created a related need for more parking spaces in the building. Consequently, the present proceeding before the BZA was instituted, which tied the added living space to the closely related need for added parking space.

During the period of the previous proceedings, Mr. C. Francis Murphy was Corporation Counsel of the District of Columbia and took part in conferences concerning various phases of the building project over the years on behalf of the government. Mr. Iverson Mitchell was at the same time an Assistant Corporation Counsel and represented the District in the proceeding brought by Carr to raise the building height limitation. No appeal from the successful suit by Carr was instituted by the District.7 Both of these lawyers, by then in the private law firm, represented the very same party, Mr. Carr, in the present BZA proceeding.

On remand, it was for the BZA to hold a hearing and make factual findings and conclusions on whether Canon 9 of the Code of Professional Responsibility was violated, and, therefore, whether there must be a removal of the law firm from the proceeding before the BZA for failure by the law firm to screen out these two former government attorneys from the BZA special exception proceeding and to substitute other attorneys of the law firm.

The pertinent ethical consideration in Canon 9 provides:

After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists. Code of Professional Responsibility EC 9-3 (1983).

These concerns evolved from years of controversy about the “Revolving Door” in this jurisdiction. As one might well imagine, this has a special sensitivity in Washington, D.C., being, as it is, the seat of government. Most law firms here continually hire or make partners of former government attorneys to gain their expertise and experience and government contacts. Any disciplinary rule which potentially might impinge upon this flow of experienced legal talent to private practice understandably would send tremors through the top levels of local law firms.

*64Some years ago, a committee of our. Bar was pushing for a relatively stern rule regarding the “Revolving Door.”8 It had the potential to disqualify law firms from some federal cases, rather than just individual attorneys of the firms. This movement eventually receded, however, with the present amended rule eventuating. The rule is pointed toward screening by a law firm of a disqualified firm member but leaving the firm itself unaffected, i.e., the firm remains in the ease. The outcome is a comparatively mild restriction on participation in specific proceedings by former government attorneys. As the court states, if attorneys in law firms formerly participated while in the government in any proceeding “substantially related” to the proceeding in which the law firm is then engaged, any such attorney should be screened by the firm from any participation in the current proceeding. It is a moderate, sensible approach to the ethical problem and usually creates only a relatively minor inconvenience for the firm.

There have been, however, misconceptions about this disciplinary rule. There has been misunderstanding that the Canon somehow impinges upon the ability of former government attorneys to practice their governmental specialty when later in private practice. This is grossly inaccurate. By no stretch of the imagination does this rule, for example, interfere with the opportunity of a former government tax attorney to practice tax law in private practice. All that DR 9-101(B) does is restrict the former government tax attorney from later representing a private client in any matter which is “substantially related” to a matter (case or transaction) for which the attorney had substantial responsibility while a government attorney. Unless one has no sense at all of legal ethics and governmental integrity, this is a perfectly reasonable and workable restriction. This is as far as it goes. Because of the moderate screening provision — with the law firm remaining in the particular case — there is no interference with the governmental hiring program due to future economic inhibitions on attorneys considering government employment. The screening provision removes any such problem. In other words, there is in place in this jurisdiction a moderate, sensible approach to the ethical question covered in Canon 9. There is no good reason why this court should not stand behind this Canon and enforce it, as it was intended, especially since it is the court’s own rule. Unless it is enforced in a proper case, it might better not be “on the books.”

FINDINGS OF FACT

In turning to our scope of review in this case, the court’s opinion states it is for the court “to determine, as a matter of law, whether the transactions are ‘substantially related’ and thus the same ‘matter.’ ” But, says the court, “we are bound to do so on the basis of facts found by the BZA ... unless they are not ‘supported by and in accordance with the reliable, probative, and substantial evidence.’ ”

I should have thought it was for the administrative agency to first make a determination on whether the transactions are “substantially related and [therefore] ... the same matter.” I had thought that was the fundamental purpose of the remand proceeding before the agency. That is essentially why administrative agencies are created.9

The court shields the fact that in its decision the BZA did not so much as once mention the term “substantially related,” let alone apply it, even though the court correctly says it is the “ultimate test” in this case. So the BZA never evaluated the evidence from the correct legal standpoint. *65This is a fatal error, without more. SEC v. Chenery Corp., supra.

Turning to the court’s statement that the court should consider itself bound on “facts found by the BZA if supported by substantial evidence,” this of course presupposes that the findings are not clearly wrong or based upon a fundamental misunderstanding of its fact-finding mission in the ease, both of which would prevent its findings from being supported by “substantial evidence.” ' Especially when the agency is breaking new ground, we should pay unusually careful attention to the findings of fact to insure that the agency understands what is significant in reaching its ultimate findings of fact. Otherwise, the ultimate findings are likely to be wrong. That is what happened in this case. But the court simply overlooks the erroneous findings.

A.

The significant findings of the BZA are essentially contained in four paragraphs of its ultimate findings. They follow:

24. The Board finds that the application before the Board was for a special exception brought under the provisions of Paragraph 4502.32 and Subsection 8207.2 of the Zoning Regulations. As such, the Board’s jurisdiction is limited to determining whether the applicants demonstrated that they met the requirement of those portions of the Regulations.
25. The Board finds that the issues presented by the special exception are in no way connected to the height litigation or the opinion concerning an air rights condominium. None of the standards which the Board was required to apply in deciding the special exception have any bearing at all on the issues to [sic] which were presented by the height litigation or the air rights condominium question. Neither the same facts, events, nor transactions were at issue in the three proceedings. Nor does any common core of relevant facts or principles render the matter identical.
26. The Board finds that the fact that the same property was involved is not a sufficient connection to create an identity of issues and render the three matters as the “same matter.”
27. The Board finds that the coincidental fact that the result of the decision by the Superior Court allows a larger development and thus more parking on the site is also not sufficient to create a “same matter” connection. The standards for the special exception have to be met, and the Board finds no information present in the two earlier proceedings which would have aided the applicant in the subject cases before the Board.

Our job is to scrutinize those findings, not just read them, and first determine whether they make sense on the surface.10 It is readily apparent that the Board’s fact finding is unacceptable if there is to be a serious appellate review. A brief analysis of the findings will now follow.

In the first paragraph of the material findings of fact11 (Paragraph 24), the Board simply finds that in the present proceeding before the BZA, the Board was confined to a determination of whether the requirements of two Board regulations were met. There is no doubt about this, and it is simply a preliminary statement.

In the second paragraph of findings (Paragraph 25), the Board finds that the first proceeding to raise the height of the building and the earlier aborted plan to obtain zoning for air rights condominium contained different issues; and that they involved different standards. There is no *66doubt about the accuracy of these two findings either. The materiality of it is another matter. But the ensuing findings in Paragraph 25 begin to take on more significance. The next two major findings are these:

Neither the same facts, events, nor transactions were at issue in the three proceedings. Nor does any common core of relevant facts or principles render the matter identical. (Paragraph 25; emphasis added.)

First of all, as the court’s opinion acknowledges, there is no requirement of law that the “matter” must be found to be “identical,” as the Board says. The BZA’s application of a standard requiring strict identity of issues was a serious error that demonstrated a fatal misunderstanding of the appropriate ethical standard, a standard that only requires a party seeking disqualification to prove that prior and present representations are substantially related. T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953); see also Trone v. Smith, 621 F.2d 994, 1000 (9th Cir.1980) (substantial relationship test does not require the issues in two representations to be identical). There is no dispute whatsoever in the court in this case on this point, viz., that “substantially related” is the legal test for application in this case.

Nowhere, at any time, does the Board in its findings so much as even mention the term “substantially related,” let alone apply it as the ultimate test as it was legally required to do. It was because, realistically, it was likely that the appellate court would only rarely encounter ethical problems where “identical matters” were involved that the “substantially related” test was created so as to give the rule actual significance. Having applied the wrong ultimate legal test in this case, viz., the “identical” standard, the agency, without more, committed another major and reversible error of law in its decision. See SEC v. Chenery Corp., supra, 318 U.S. at 94, 63 S.Ct. at 462.

Returning to that finding (Paragraph 25), the BZA found there was an absence of the “same facts, events [and] transactions ... at issue in the three proceedings. Nor does any common core of relevant facts or principles render the matter identical.”

An appellate court seriously reviewing that finding would have to question whether the BZA could in all seriousness conclude it was not a “relevant fact” that Carr was the same party at all times, and there were involved at all times the same property, the same building, to say nothing of the same specific purpose. Yet, the agency incredibly found there was no “common core of relevant facts.” In a case involving a real estate transaction, there can be no more important core of facts than “same party, same property, same building,12 same specific purpose” in all the pertinent transactions. Even the majority opinion in this case concludes there was an important “factual overlap” in the pertinent proceedings. (Majority opinion at 30.) This surely has to be taken as a frontal rejection by the court of the BZA’s finding that there was not a common core of facts. This made reversal mandatory, yet, in its conclusion, the court blithely contradicts itself by stating that there is substantial evidence to support the BZA’s finding that the facts and issues were not “in any way connected.” That could not be. This is an obstinate neglect of the court’s review responsibility.

The Board next finds that “the fact that the same property was involved is not a sufficient connection to create an identity of issues and render the three matters as ‘the same matter. ’ ” (Paragraph 26; emphasis added.) Here are two major errors in the same finding. First, there *67is obviously no issue as to whether the fact that the same property was involved is, by itself, sufficient to create an “identity of issues” rendering the three matters the “same matter.” Secondly, the Board does not comprehend the question. The question is whether the presence of the “same property” is a factor of material significance — not whether it is “a sufficient connection to create an identity of issues and render the three matters as the ‘same matter.’ ” Furthermore, nowhere does the BZA make an affirmative finding concerning the fact that there was always the same party (the most important single connection).

The next and final paragraph of findings (Paragraph 27) is an eye-opener:

The Board finds that the coincidental fact that the result of the decision by the Superior Court allows a larger development and thus more parking on the site is also not sufficient to create a “same matter’’ connection_(Emphasis added.)

This finding reveals a devastating misconception by the Board of its fact-finding mission in this case. Yet, the court does not deal with this defective major finding of fact.

To begin with, the Board was there referring to the equity action brought by the developer (Carr) in the Superior Court to raise the building height from 60 feet to 90 feet, which if successful, would inevitably provide a strong basis for securing an increase in the number of parking spaces needed. The Board finds that this “coincidental fact” provides no basis to infer a “same matter” connection. In the defensive posture which permeates the BZA findings in this case, no evidence of material significance ever strikes the Board as a “connection” on the “same matter issue.”13 But let us consider what this finding actually says and what it reveals to an appellate court bent on a workman-like review in this administrative case.

Here is a developer (Carr) planning a development for profit. This particular preliminary effort in court succeeded in raising the height of the proposed building from 60 feet to 90 feet — resulting in three more stories on this building. Here we have the sophisticated BZA concluding it is a “coincidental fact” that this successful litigation “allows a larger development” and “thus more parking.” The developer was not in court for an intellectual exercise to prove the city agency was “arbitrary and capricious” in restricting the building to 60 feet in height. The developer went to court to increase the profitability of the proposed building by obtaining more marketable space. It was scarcely “coincidental” that the result allowed “a larger development.” That was the reason for instituting the proceeding.

But what this finding reveals goes to the root of the multiple reversible errors in this case. The BZA misconceived its fact-finding function in this case because it manifestly did not understand what it was supposed to be looking for. Legal ethical problems stem from matters of economics not intellectual exercises. In cases where lawyers are found to have “switched sides” unethically, it was not done primarily for the sake of winning a legal argument, though this may have been a necessary step. Almost invariably, it was essentially rooted in a financial reason — for the law firm and for the lawyer. Ethical problems normally arise from conduct arising out of monetary incentives.

A review of the BZA findings in this case shows a serious lack of understanding of the ethical question. From all that appears, the Board did not understand that the lack of the same legal issues in the injunction proceeding in Superior Court and the special exception for parking proceeding in the BZA was by no means control*68ling.14 The Board ignored the crucial fact that it was the same party seeking at all times to increase the density of marketable space in the same building on the same property — the economic factors — and consequently neglected to make affirmative findings on these factors.

If, for example, Attorney A represented the government in a trial of Corporation X for violation of the antitrust laws and was successful; and Attorney A later appears in court then representing the same Corporation X in a subsequent divestiture proceeding, the first ethical consideration is that Corporation X would be the same party in both proceedings. That the divestiture proceedings had some different legal issues would be relevant but by no means determinative. These issues must be approached with the understanding that protection of the public interest and governmental integrity are the principal considerations, not just remote factors. This is why the appearance of propriety, like the appearance of justice in other contexts, must be at the root of the Canon.

Lastly, the Board finds that there was “no information present in the two earlier proceedings which would have aided the applicant in the subject cases before the Board.” (Paragraph 27). The demonstrable facts are that: (a) this was a new and novel zoning concept in this jurisdiction; and (b) more residential space upstairs (60 feet to 90 feet in height) means additional car parking space is needed downstairs. The height increase and additional parking were tied together.

For the purpose of this review, the ultimate finding of fact in this case is the BZA finding that the pertinent proceedings were “in no way connected.” This is the view of the Bar (Brief for Amicus at 4), and this is the view of the dissent. It is a striking thing in this case that even Mr. Carr, at the BZA hearing, and counsel for Carr, before this court, made no bones about conceding the obvious connection.

At the public hearing before the BZA on the parking exception application, the Hearing Examiner commented:

[Y]ou are doing it because you want to sell your condominium units and you know [you] can sell them easier if you have those parking spaces with them as opposed to having them without parking spaces.

Counsel for Oliver Carr responded:

It is very important from a marketing standpoint. There is no doubt about it....

Still later, witness Robert Carr admitted:

We have always planned to include 157 spaces [one parking space per each con-dominum unit] in the project and to apply to the Board [for approval later].

At oral argument, counsel for Oliver T. Carr, Jr., et al., stated in answer to a question from the court as to whether there is a direct relationship between an increase in the building’s height and additional parking:

[T]o answer your question directly — is there a relationship between an increase in height of a building and more parking — I think the answer is obviously yes, because if you get more units you are more than likely to get more parking.... I don’t think there is any doubt about that.[15]

The BZA found nevertheless that there was no connection whatsoever between the two proceedings. But what is more serious — this court accepts that plainly erroneous ultimate finding of fact.

To illustrate, the court states there is no way one can say to a reasonable certainty that in 1975 the height litigation, premised only on constitutional issues, had a direct bearing on the number of *69dwelling units and parking spaces to which Carr would be entitled.” (Emphasis added.)

First of all, as I have related, both Mr. Carr in his testimony before the BZA and Mr. Carr’s attorney when before the court, affirmed that obtaining more height on the building resulted in economic need for more parking spaces. It would seem plain that the two are “connected.” If, in considering this case, this court can now say the height litigation was premised only “on constitutional issues,” this may be an indication of why there is a fundamental difference in viewpoints between the majority and the dissent in this case. The plain fact is that prevailing on the constitutional issue was but the procedural vehicle for obtaining more density of marketable space in the building. For the purposes of this case, the height litigation was “premised” on a desire to increase the density of the marketable space. The means used was the proceeding raising the constitutional issue. As the Bar points out, the legal avenues used are not of controlling significance. It is more importantly the economic factors.

Yet, the Board concludes the proceedings were “in no way connected” when it is plain to see they were closely connected. If there is an explanation for this egregious error in the ultimate finding of fact in this case, it must be that the Board simply did not understand its mission. In ignoring the fact-finding errors in this case, this court shirks its review responsibility. We are not spectators. We are here to do a job in appellate review which becomes an appellate court. The crucial findings are fatally defective, and this court looks the other way.

The Ethical Standard

The majority opinion rejects our Bar’s effort to secure an uplifting ethical standard in the matter of the “revolving door” standard in Washington, D.C. The Bar urged the court to be mindful of this consideration:

Avoiding the appearance of impropriety goes to the very heart of the legitimacy of the rule of law in our society: the people must have faith that justice can be obtained through our legal system. Code of Professional Responsibility EC 9-1 (1983). For this reason, the committee agrees with the emphasis of the panel majority [16] on the need for “scrupulous care to avoid any appearance of impropriety.”

(Brief for Amicus Curiae at 10; citations omitted.)

This seems to me to be a fair statement of the underlying purpose of the Canon we are considering. The Bar is aware, on the other hand, that if a reading too broad is given to that ethical standard, it might encourage counsel in other proceedings “to harass, divert or delay decisions upon the merits ...” by unfounded motions to disqualify. Id.

To reach a balance on this problem the Bar suggests that:

[Wjhere transactions pertain to a single objective and involve the same property and the same party, public concerns about the fair administration of law usually will support a determination that the transactions are part of the same matter.[17]

Id. at 10-11.

The majority rejects this fair-minded approach to the problem, though I find it quite appealing. It is a sensible standard. It does not engage in syrupy rhetoric but, rather, gets down to earth on the issue. But the majority rejects the Bar’s “single objective” -criteria as “too vague and wooden.” I think that was quite unnecessary because it is practical and definitive. It *70avoids “fine ratiocinations.” The Bar, in its supplemental brief, later elaborated on the term “single objective.” It stated that in real estate development the term was not intended to be a goal as broad as the “general economic development” of an area. The term was meant, says the Bar, to be directed toward a more pointed objective. It is quite apparent in this case that the specific objective of the “same party” in these proceedings was at all times to increase the density of the marketable space in the building, a sufficiently narrow specific objective. To meet the Bar’s test, the “single objective” need hardly be as narrow as, for example, to obtain larger elevators or different door knobs for the building in each of the three “transactions” in this case; nor, as the Bar put it (Brief for Amicus at 19), need it have related always to parking, though the BZA mistakenly thought so.18

In contrast, the essence of the majority opinion in this case in relation to the ethical standard is:

[O]nly if specific information (as distinct from general agency expertise or contacts) that a former government lawyer may have had access to in one matter is likely to be useful in a subsequent matter, will there be a reasonable possibility of the particular improprieties that DR 9-101 (B) is intended to forestall. (Emphasis added.)

Majority opinion at 23.

It is my view, however, that our Bar is eminently correct in the opposing view that the “interest unique to Canon 9 is public confidence in the fair administration of the law.”19 Consequently, says our Bar, there is a need for “ ‘scrupulous care to avoid any appearance of impropriety.’ ” (Brief for Amicus at 10) (quoting General Motors Corp. v. City of New York, 501 F.2d 639, 649 (2d Cir.1974)) (emphasis in original). I agree with the Bar’s forthright statement of what the ethical standard should be in this jurisdiction. This standard does not stem from the issue of whether the attorney did or did not take away from the government “useful information” (whatever that may be)20 later being applied in a case in private practice. The crucial consideration is that the “useful information” requirement successfully writes out of the equation the heart of the ethical rule, viz., the public’s conception of impropriety. Instead, it substitutes a test which requires a substantial piece of collateral litigation to determine whether there was “useful information” employed. According to the court, it requires proof that there was an “actual impropriety.” (See supra note 15, majority opinion). In reality, the court is requiring proof of a misfeasance. This is a rewrite of the Canon.

The concern that lawyers consider the appearance their conduct will present to an independent observer (the public) is the primary reason that Canon 9 has special importance in the context of former government attorneys.21 The public’s perception is particularly important where government attorneys “switch sides” and represent adverse interests in a subsequent proceeding. It has been held that the preser*71vation of public trust in the scrupulous administration of justice, and in the integrity of the bar, mandate disqualification even in those instances where a former government attorney’s conduct may be only arguably improper. Hull v. Celanese Corp., 513 F.2d 568, 570 (2d Cir.1975); New York Co. Lawyer’s Association, Comm. on Prof. Ethics, Opinion No. 202.

The “substantial relationship” test has been construed most frequently in court decisions which focused upon an attorney’s obligation to keep confidential information received from a former client. The majority opinion has seized upon this line of cases and narrowly confines its analysis to focus exclusively on the passage of information. Such a limited perspective is wrong, since the utilization of “useful information” obtained while in government is not the sole impropriety which the disqualification rule seeks to prevent. As the majority recognizes, resolving the ethical issues associated with side-switching requires balancing the need for capable government attorneys with the interest in public confidence in the administration of law. The majority fails to recognize, however, that in balancing these concerns, it is essential to recognize in accordance with the spirit of Canon 9 that public confidence can be undermined by the appearance of ethical improprieties. It is therefore essential that we be concerned with appearances from the public’s reasonable perspective — a public that currently is not entirely trusting of lawyers.22

Even in criminal law, the Supreme Court often returns to the theme: “... to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’ In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954) (emphasis added)); see also Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982) (discussing the due process requirement of judicial impartiality); Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) (discussing the reality that different juries reach different results); Proctor v. Warden, Maryland Penitentiary, 435 U.S. 559, 98 S.Ct. 1596, 56 L.Ed.2d 547 (1978) (relief denied had nothing to do with habe-as corpus relief requested).

The principal concern is that when an attorney switches from government to private practice and gets involved in a matter in which he previously had substantial responsibility, it may reasonably appear to the public that he conducted his office with the hope of eventual personal gain in the private sector. See General Motors, supra, 501 F.2d at 650 n. 20; D.C.Bar Comm, on Legal Ethics, Opinion No. 26 (1977); Developments in the Law — Conflicts of Interest in the Legal Profession, 94 HaRV. L.Rev. 1246, 1430 (1981) [hereinafter cited as Developments ]. Involvement in private practice in a “substantially related matter,” for example, may create an appearance that the attorney failed to zealously represent the government’s interest in anticipation of private employment. See Woods v. Covington County Bank, 537 F.2d 804, 814 (5th Cir.1976); D.C. Bar Comm, on Legal Ethics, Inquiry No. 19, at 12 (Tent. Draft 1976); Allied Realty of St. Paul, Inc. v. Exchange National Bank of Chicago, 283 F.Supp. 464, 469 (D.Minn.1968), aff'd, 408 F.2d 1099 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 64, 24 L.Ed.2d 73 (1969). Such an appearance, even if based solely upon representation in two substan*72tially related matters, logically raises suspicions about an attorney’s “overall conduct as a government official.” Woods, supra, 537 F.2d at 814. The ultimate fear is that the attorney may have neglected issues of public importance to concentrate primarily on developing matters that could prove profitable in private practice. “Side-switching” on related matters, therefore, creates appearances that from the public’s perspective call into question the integrity of the attorney involved and the reliability of our legal system. It is a crucial consideration in this case that the majority fails to recognize that this appearance will exist regardless of whether the attorney carried “useful information” into private practice.

While the concerns raised by the potential use of confidential information are significant, just as important is the concern that government power may be abused to secure subsequent private gain. See General Motors, supra, 501 F.2d at 650 n. 20. Such abuse can occur, for example, when an attorney uses the government position to initiate a suit that he will be able to later develop further in private practice or when he less than vigorously represents the government’s interest in order to benefit the position of a potential private employer. The appearance that a public position was compromised through either of these methods can clearly arise without delving into whether the former government attorney had access to or possesses “useful” information. The majority does just what our Bar diplomatically warned against in this case with a certain incisiveness. Focusing on the taking away of information from the government position, it engages in just the type of “fine ratiocination” that, as the Bar cautioned, will “only exacerbate public fears about the fair administration of justice.” (Brief for Amicus at 19.) The simple reality ignored by the majority is that from the public’s perspective, a substantial factual relationship between two matters may well be enough to reasonably give rise to the “appearance” that an attorney may have comprised the government’s interests before entering private practice. For this reason, the gloss placed by the majority on “substantially related matters” is entirely at odds with the intended effect of DR 9-101(B).

The fear of blanket disqualification is no longer of genuine concern to law firms which are considering employment of government attorneys. The only remaining disqualification concern is that individual attorneys may be barred from participating in particular matters over which they had substantial responsibility while in the government. It would be most unusual for this concern to be enough to dissuade a law firm from hiring a government attorney, as the number of matters from which an attorney must be screened is obviously limited and is unlikely to involve the bulk of a firm’s practice in a particular area.23

The practice of screening adequately addresses the concerns that underpin the majority’s narrow definition of “substantially related matters.” The majority’s preoccupation with these concerns is therefore unrealistic and detrimental to what is actually at stake — public confidence in the legal profession and the administration of justice.

The court’s unwillingness to invoke Canon 9 to correct improper appearances eviscerates this standard’s effect on lawyer’s conduct and, thus, runs counter to DR 9-101(B)’s intended purpose. This approach erroneously relegates Canon 9 and its focus on “ ‘appearance of impropriety’ to a remote and uncertain role at best.” Armstrong v. McAlpin, 625 F.2d 433, 452 (2d Cir.1980) (en banc) (Newman, J., dissenting) (vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981)). It is difficult to accept that a profession which *73prides itself on “maintain[ing] the highest standard of ethical conduct,” should be willing to retreat from the general principle that the actions of its members should “merit the approval of all good men.” See Model Code of Professional Responsibility Preamble (1979); see also United States v. Trafficante, 328 F.2d 117, 120 (5th Cir.1964). Moreover, since access to “useful information” — whatever that is — may be difficult to demonstrate, the guidepost of “appearance” is particularly appropriate in these matters.

The term “substantial relationship” signifies something more than a mere facial similarity between the nature of the past and present representations. It is not necessary to treat each distinct form of a proceeding as a separate matter without regard to any underlying factual nexus between such proceedings. After all,

[t]here may be for various technical reasons, all sorts of separate proceedings conducted under different docket numbers, in some or different form, which all arise from a single set of underlying facts, circumstances, or transactions. In our view, it is the [underlying] factual relation between various pleadings or claims which determines whether they constitute the same matter.

D.C. Bar Ethics Opinion No. 92 (emphasis added).

This the BZA did not understand.

The Bar in its brief puts it to the court this way:

A former government attorney should not ... represent, consult or advise a person concerning a property or project if while in government the attorney opposed or advised that same person regarding his or her same practical objectives regarding that same property or project....

(Brief for Amicus at 13.)

I agree, and it seems evident that it fits this case squarely. It is not open to question that one or the other of the two attorneys at varying times advised or opposed Carr on this building project from its infancy. And it also seems undeniable that there were present at all pertinent times Carr’s “practical objectives” regarding construction of a building on the same property.

The Bar in its brief stated the proposition well:

The “substantial relationship” test used to construe “matter” in DR 9-101(B) should recognize reasonable public perceptions of impropriety and thereby encourage public confidence in the neutral administration of law. Ordinarily, transactions involving the same party, property and objective will justify these apprehensions. In such situations, the potential for disqualification is sufficiently serious that attorneys should take available precautions to avoid the appearance of impropriety.

(Brief for Amicus at 22.)

Saying “it is the key to this case,” the court in this case holds that:

[O]nly if specific information (as distinct from general agency expertise or contracts) that a former government lawyer may have had access to in one matter is likely to be useful in a subsequent matter, will there be a reasonable possibility of the particular improprieties that DR 9-101 (B) is intended to forestall. (Emphasis added; footnote omitted.)

This test, which this court now says is “the key to this case,” requires a law firm to determine whether its attorney — previously a government attorney — had access to information as a government attorney which was “likely to be useful in a subsequent matter.” (Emphasis added.) Apparently, the decider must (1) examine all the information to which the former government attorney gained access; and (2) determine whether there was any information “likely to be useful in a [the ] subsequent matter.” (Emphasis added.) This is a hazy test for this ethical question and will likely require extensive litigation to determine whether one is able to prove “useful information” was available to the *74former government attorney. And this is what the court says is “the key to this case.”

Translated into this case, it should not have been necessary for the law firm initially to discover what information the two attorneys came upon in the government and then determine whether any such information would be “useful” in the parking proceeding. It was readily apparent that the “parking” proceeding was still another attempt to increase the density of marketable space in the same building by the same property owner. There was thus a “substantial relationship” between the proceedings going far back. The firm should have assigned a different attorney to the case, not a particularly horrendous decision. If one were disenchanted with the “revolving door” canon of ethics there would scarcely be a more effective way of smothering it than to now require the court’s “useful information” test.

It is important to realize what the court is here doing in the process of the “fine ratiocinations” 24 of its opinion. The court says:

In the present case, for example, we are satisfied that the three land use transactions directed at the same property in the unique, relatively small CR zone, involving Oliver T. Carr and the District of Columbia government in each instance, provide a sufficient factual overlap for a reasonable person to infer that Iverson Mitchell and C. Francis Murphy, while attorneys for the District, may have had access to information from the height litigation and the air rights condominium discussions that could be legally relevant to, or otherwise useful in, the special exception case at issue here. (Emphasis added.)

That conclusion by the court should have been enough to resolve the ethical issue. What that statement necessarily means is that there is a reasonable public perception of impropriety. If as the court says, and I agree, there is enough here “for a reasonable person to infer that Iverson Mitchell and C. Francis Murphy, while attorneys for the District, may have had access to information from the height litigation and the air rights condominium discussions that could be legally relevant to, or otherwise useful in, the special exception case at issue here,” then there inevitably is enough here without more for a reasonable public perception of impropriety. This is after all not a criminal proceeding. We are here dealing with an ethical standard relating to the public perception of the administration of justice. And we are dealing with a problem that is readily avoided by the use of the moderate screening device in the law firm.

But that is not the court’s view of the question. The court’s view is that the inference to which I have referred is simply enough to cause a review of the findings of the BZA to determine whether there was actually anything improper. So, in order to determine this the court then turns to the fatally defective findings of the BZA, swallows them whole, no matter how indiscriminate, and proceeds to conclude that the ethical issue vanishes.

The court’s view of the ethical standard, and more specifically the grafting of the “useful information” (confidential information) test onto Canon 9 is more properly a test for a case when there is a “vicarious disqualification” involved; by that I mean, a case where the law firm is disqualified if one of its attorneys is disqualified. But the “useful information” test is too protective in this jurisdiction where we have a screening provision which avoids the heavy sanction against the law firm. The presence of the screening provision should require a construction of the Canon as it is written — “to avoid the appearance of impropriety,” i.e., to avoid a reasonable public perception of impropriety. The court should realize it must pay more attention to *75a reasonable public perception when ethical issues stemming from “revolving door” are before it. Those issues have the additional factor of problems directed toward governmental integrity.

According to the new rule in this jurisdiction being announced today by the court, even though there is an appearance of impropriety, the law firm may properly ignore this if the firm believes the attorney in question did not actually take “useful information” (whatever that may be) away from the government position. The court does not satisfactorily define “useful information” except to say it does not include “agency expertise and contacts.” How this is in reality distinguished from “useful information” is not apparent. This illustrates the folly of the court’s “useful information” test now being grafted onto the Canon. Before this was done, the Canon specifically related entirely to the “appearance of impropriety.”

This is in fundamental conflict with the test proposed by the Bar. The Bar proposes this worldly test:

[Wjhere transactions pertain to a single objective and involve the same property and the same party, public concerns about the fair administration of law usually will support a determination that the transactions are part of the same matter.

(Brief for Amicus at 10-11.)

It is readily apparent that the Bar and the court have a philosophical difference in viewpoints on this issue of legal ethics. The court adopts something akin to a punitive test approach (misfeasance) and the Bar views it as a purely ethical question. The Bar’s outlook is aspirational. The court approaches it as though a punitive sanction were involved. Yet, the screening provision was intended to allay just those economically punitive fears and remove a financially harsh sanction.

The court approaches the question as though the economic consequences to the law firm were grave in the manner of vicarious disqualification of the entire law firm from the case, and perhaps additional cases. But that consequence no longer exists due to the screening provision. The court, however, essentially views the issue as if the consequences were still as severe as they were in the past.

This underlying conflict in views is at the root of the fundamental difference between the court and the Bar. The Bar’s concern is with a reasonable public perception. The court largely ignores this consideration and is excessively solicitous of the law firms. We in dissent favor the viewpoint of the Bar.

What this all boils down to is that in rejecting the enlightened ethical standard proposed by our Bar, we are presenting an unnecessary rebuff, instead of support, to the legal profession of this city.

L’Envoi

There is a serious abdication by the court in this case in its review function. Though that is cause enough for concern, the court then rejects our Bar’s effort to initiate a public interest oriented ethical standard relating to the “revolving door” between government employment and private practice. This Canon is especially important because it has a particular effect on the integrity of the executive branch in this seat of government. It is to me incomprehensible that an appellate court would decline an edifying standard of ethics which was urged upon the court by its own Bar. The court was assured by the Bar that there is nothing about its proposed interpretation that inhibits lawyer recruitment by the government; and that it would not unreasonably restrict private practitioners. Even this assurance was not enough for the court. One can only speculate whether the court somehow viewed the interest of law firms as being different from the interest of the Bar. I must say it does give one an uneasy feeling to read in the majority opinion that the court should not read our Canon of Ethics “broadly enough to ... require disqualification solely on the basis of unseemly appearances.” (Emphasis *76added.) I should have thought that if the appearance is “unseemly,” we would require the law firm to screen the attorney causing this undesirable consequence and substitute another attorney — a step that is moderate enough.

As learned counsel for the Bar put it to the en banc court in oral argument while urging adoption of the “appearance of impropriety” test, “what the rule should do is create” an “assurance of honest administration of the law.” That surely is not too much to ask of the court. For those of us in dissent, it is an appeal by our Bar which we would not turn down.

There is a certain irony in the whole affair. Ordinarily, the Bar is apt to be criticized for being overly protective of its members in matters of ethics. But here the Bar is urging on the court a reasonable and high-minded ethical standard and the court rejects it — almost as if it were necessary for the court to protect the Bar from itself on a matter grounded in economic considerations for local law firms. There is a bit of wry humor in this decision.

There is always another day and another case. Decisions such as this have a way of living a short life. If the Bar does not grow indifferent, another opportunity will arise before long to once again urge its enlightened rule, and the next time perhaps judicial feet will not be in concrete. If so, the Bar may then be successful in coaxing the court to get abreast of the historical public interest tide which is flowing in the field of legal ethics.

.The Committee on Legal Ethics of the District of Columbia Bar is here referred to as “the Bar.” The Committee is the Bar’s representative on matters of legal ethics. It is precisely for this reason that the court requested it to brief and orally argue this case as amicus.

Like in other Bars, the Committee issues published opinions at the request of Bar members on problems of legal ethics. See ABA/BNA Lawyers Manual on Professional Conduct, § 81-2301 et seq.; Code of Professional Responsibility and Opinions of D.C. Bar Legal Ethics Committee. Though not binding, courts view such opinions as authoritative. Nationally, the American Bar Association’s Legal Ethics Committee opinions are widely cited by the courts.

I am not entirely clear on whether the statement in the first footnote of the majority opinion has a contrary implication. As will be apparent, the Committee (the Bar) is in fundamental disagreement with the court in this case on how legal ethics should be viewed in this jurisdiction as it applies to former government attorneys.

. Brown v. District of Columbia Board of Zoning Adjustment, 413 A.2d 1276 (D.C.1980).

. In remanding, we took the extraordinary step of offering some advance suggestions in the legal ethics area due to the protestation of the BZA that the agency was inexperienced in this area. This was done to point the agency toward some potential questions that might arise on remand. We of course were not deciding any issues in advance.

. By "same building” I mean the building constructed on the same site.

This is not a corporate tax case where form and technicalities predominate. We have here a down to earth ethical question. For our purposes, there need not be the same number of restrooms, or water fountains, or elevators, or parking spaces to be the "same building.” Contrary to the court's opinion at footnote 2, the two attorneys were in fact government attorneys when the height of the Westbridge (to be built) was raised by three stories as a result of litigation. The fact is that Mr. Mitchell represented the government in that litigation — contrary to the majority’s representation that the "project was initiated after they left.”

The court’s treatment of the “same building” question — and its emphasis on a non-existent air rights condominium — is an excellent illustration of the wisdom of the Bar’s suggestion that we not engage in "fine ratiocinations” in this case.

. BZA Findings, paragraph 25 (emphasis added). As will appear, this test, which the BZA applied, is manifestly erroneous as a matter of law. This alone requires reversal under the well known rule of SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The rule of Chenery is one of the landmarks in the law on administrative procedure.

. The Board considered this evidence prior to its decision on remand and assumed that these discussions had in fact taken place:

Wilkes and Artis, principally through Norman M. Glasgow, Sr., represented Oliver T. Carr during the period of time that the CR zoning was before the Zoning Commission in 1973 and 1974. The opposition alleged that while so representing Carr, Mr. Glasgow met with Mr. Murphy during 1973 and 1974, who gave advice and consultation to Mr. Glasgow on how best to obtain approval of the CR Zone from the Zoning Commission. The Board finds that, even assuming those contacts, there is no relationship, factual or legal, between the public hearings on the CR zoning issues and the [proceeding involved here].

. I do not imply one way or the other that an appeal should or should not have been taken.

. "Revolving Door, ” 445 A.2d 615 (D.C.1982) (en banc) (per curiam).

. It is true that this court should ultimately reach its own judgment on matters of law relating to construction of the court's own rules on legal ethics. It is hardly for an administrative agency to bind the court on the meaning of the court's own rules.

. The review is made difficult by the manner in which the Board’s decision is constructed. Findings of fact are interspersed with legal conclusions and are not segregated for review purposes. However, we must take them as we find them in this already protracted case, even though it makes review more difficult.

. As I have indicated, while the decision contains several pages the material findings of fact are found in Paragraphs 24 through 27, inclusive.

. Naturally, in referring to "same building” it is not intended that it was the same identical building, in all respects.

. Still again, there is no indication of the Board’s awareness that "substantially related" is the ultimate test as a matter of law.

. See Brief for Amicus Curiae, Committee on Legal Ethics of the District of Columbia Bar [hereinafter Brief for Amicus] at 12.

. Oral argument before the hearing division in this case.

. The Bar was there referring to the prior opinion of the division in this case, which was necessarily vacated when the court went en banc.

. Incidentally, it will be noted once again, that the BZA made no affirmative finding whatsoever on the presence in this case of the "same party, same property” factors.

. See paragraphs 5, 9 and 11 of the BZA decision.

. Brief for Amicus at 10. The Bar recognizes also that there is a second public interest and this is that the government’s ability to hire "talented and well-qualified attorneys” should not be crippled. But the Bar concluded with reason that with the moderate screening provision now in DR 9-102, any potential danger of impairing this governmental interest is now dissipated. (Brief for Amicus at 9-10 and 22.)

. In our "Ethical Consideration” we say this: After a lawyer leaves ... public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists. EC 9-3 (emphasis added.)

.Canon 9 creates a special niche for former government attorneys. See DR 9-101(B). Furthermore, because of their status as public servants, they are subject to additional ethical constraints in order to prevent potential abuse of public office. See EC 9-3; 18 U.S.C. § 207 et seq. (1970).

. In an October 4, 1983 front page article addressing the public's image of lawyers, the Wall Street Journal reported that “[t]o much of the public, lawyers seem more interested in beating the system than in justice.” Wall Street Journal, Oct. 4, 1983, at 1, col. 1. Quoting Lloyd Cutler, a prominent member of our own Bar, the article continued: "We are regarded as more canny than candid, more as servants of our prince — as mouth pieces or hired guns — than as servants of our consciences.” Id. In a recent Gallup Poll, also referred to in the Wall Street Journal article, only 24% of those polled rated lawyers high or very high with regard to honesty and ethics; 43% of those surveyed felt lawyers were average in that regard; and 27% stated that lawyers rated low or very low.

. The American Bar Association formulated the practice of screening in 1975 in Formal Opinion 342. This practice, stated the ABA, serves the purpose of "inhibit[ing] government recruitment as little as possible and enhancing] the opportunity for all litigants to obtain competent counsel of their own choosing, particularly in specialized areas.” ABA Comm, on Ethics and Professional Responsibility, Formal Op. 342, at 521 (1975).

. (Brief for Amicus at 19.) The Bar was introspective in its brief in diplomatically warning against a court opinion resting on "fine ratioci-nations.”