A pril 1, 1977
77-17 MEMORANDUM OPINION FOR AN
ASSISTANT ATTORNEY GENERAL FOR A
DEPARTMENT OF JUSTICE DIVISION
Standards of Conduct—Service of Assistant Section
Chief as Reporter on American Law Institute Project
You have asked us whether Mr. A, Assistant Chief of a section of a
D epartm ent o f Justice Division, may serve as reporter for an American
Law Institute (A LI) project relating to the development of peer review
standards. We understand that Mr. A would receive monetary compen
sation for his services.
Under 28 C FR § 45.735.9(a), no employee of the Department of
Justice is permitted to engage in the outside practice of law unless he
first obtains the approval o f the Deputy Attorney General. We have
previously taken the position that teaching does not constitute the
outside practice of law. We believe that Mr. A ’s proposed service as a
reporter more clearly resembles teaching than the practice of law, and
as such, does not require the approval o f the Deputy Attorney General.
T here is, moreover, no prohibition against the receipt of compensation
for the work, assuming that nonpublic official departmental information
is not used on the project.
In addition, 28 CFR § 45.735.9(d) provides:
No employee shall engage in any employment outside his official
hours of duty or while on leave status if such employment will:
(1) In any manner interfere with the proper and effective
performance of the duties of this position;
(2) Create or appear to create a conflict of interest, or
(3) Reflect adversely upon the Department of Justice.
T he reference to activities permitted outside one’s “official hours of
duty” may, by negative implication, be read to mean that no outside
activities are permitted during regular office hours. Mr. A states in his
memorandum to you that he believes a minimal amount o f reportorial
work, such as talking to people and mailing drafts, will have to be done
during regular office hours. In our opinion, 28 C FR § 45.735.9(d) need
not be construed so narrowly as to prohibit all such incidental activities
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if they in fact take only a small amount of time and if you have no
objection. However, it may be advisable to make some assurances,
perhaps through a formal or informal compensatory time arrangement,
that Mr. A will devote the time required to his official duties. If leave
is required in connection with his A LI work, we recommend that
annual leave or compensatory time be used, in view of the fact that Mr.
A will receive compensation. Use of official or administrative leave
provides a sufficiently close nexus to his official duties that the receipt
of compensation from the ALI, in part covering the same activities,
would raise questions under 18 U.S.C. § 209 and 28 CFR § 45.735.12(a).
We believe that all identifiable expenses of the project such as post
age, stationery, and telephone costs should be borne by ALI or some
other nongovernmental source. Any significant secretarial services
should also be reimbursed if appropriate arrangements can be made. On
the other hand, under the unique circumstances present here, the D e
partment’s particular interest in Mr. A ’s project might permit limited
secretarial services to be made available to him for the project.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
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