Ethical Issues Raised by Assistant United States Attorneys' Representation of Judges ( 1981 )

Ethical Issues Raised by Assistant United States Attorneys'
Representation of Judges
A number of concerns are raised under the American Bar Association’s canons of
professional ethics when an Assistant United States A ttorney (AUSA) is asked to
represent a judge in his or h er district in a suit brought by a private individual. These
ethical concerns could be handled through disclosure o f prior or pending representa­
tion to opposing counsel, by arranging to have the judge represented by an AUSA
from another district, or by retaining private counsel to represent the judge.
November 2, 1981
MEMORANDUM TO TH E COUNSEL, OFFICE OF
PROFESSIONAL RESPONSIBILITY, DEPARTMENT OF
JUSTICE
This responds to your request for our opinion on several questions
raised by the United States Attorney for the Southern District of
California, M. James Lorenz.1These questions center around the ethical
problems raised when an Assistant United States Attorney (AUSA)
appears before a federal judge whom he is defending or has defended in
a suit in which the judge is charged with depriving an individual of his
constitutional rights. See 42 U.S.C. § 1983.2 On April 13, 1981, this and
related problems, including that of representing a judge sued for actions
taken while he was a federal officer but prior to his nomination to the
bench, were raised at a meeting of the Advisory Committee for United
States Attorneys held at the Department of Justice. In September, this
Office received a letter from the United States Attorney in Puerto
Rico, Raymond L. Acosta, outlining cases in which AUSAs repre­
sented judges who had been sued for their handling of administrative
matters involving the district court.3 We believe that the present system
of representation for judges by AUSAs raises recurrent ethical concerns
that should be addressed at the highest levels of the Justice Depart­
ment. We suggest that your Office convene a meeting that would
1We have solicited and received the views of the Civil Division on this question.
2 Representation by the AUSA is authorized by the Department of Justice at the request of the
Adm inistrative Office o f United States Courts. United States Attorneys’ Manual, § 1-10.000 (1977).
3 L etter from Raymond L. Acosta, United States Attorney for the District of Puerto Rico, to the
Office o f Legal Counsel, September 11, 1981 (Acosta Letter). F o r example, Mr. Acosta described one
case in w hich his Office was simultaneously prosecuting a lawyer for trespass against the Navy and
defending the entire district court from charges that the judge’s refusal to admit the lawyer to the
Puerto Rican bar was politically motivated.
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involve, at the least, the Executive Office for United States Attorneys,
the Civil Division, and the Deputy Attorney General, in order to draw
up a uniform policy that will eliminate, to the greatest extent possible,
these ethical concerns.
I. Background
Most suits in which representation is requested appear to fall into the
category outlined by Mr. Lorenz—the judge is sued for actions that are
alleged to violate an individual’s constitutional rights. Such cases will,
we assume, be defended on the ground of absolute judicial immunity.
Others, like Mr. Acosta’s examples, arise in Bivens-type suits and man­
damus actions stemming from administrative, rather than judicial, mat­
ters. These “demand more involvement on the part of the attorneys
than is normally required in cases where the absolute immunity doc­
trine is applicable.” Acosta Ltr., at l.4
Permitting AUSAs to represent federal judges thus raises ethical
concerns about which cases should be accepted and what, if anything,
should be said to opposing counsel. These concerns are not matters of
idle or academic speculation for the attorneys involved. At the Advi­
sory Committee meeting, some of those present argued that a United
States Attorney’s office is analogous to a firm with one partner and a
number of associates, and that the same considerations that bind the
private bar also bind the government. See Roberson v. United States, 249
F.2d 737, 741 (5th Cir.), cert, denied, 356 U.S. 919 (1958) (United States
Attorney is “of counsel” to all cases filed in his district). Others noted
that as long as the judge was an AUSA’s client, it was immaterial
whether the suit was frivolous or easily defended, since the merit of a
suit is not the usual test for whether an attomey-client relationship
exists.5
Mr. Lorenz asked whether the judges should be forced to recuse
themselves because the situation is one in which the judge’s “impartial­
ity might reasonably be questioned.” 28 U.S.C. § 455(a). We do not
believe that it is appropriate for this Office to issue an opinion instruct­
ing the judiciary on its ethical duties. The individual judge, the appeals
court, and the Administrative Office of the United States Courts, which
is charged with issuing opinions on the ethical standards of judges, are
the ultimate authorities for deciding issues of disqualifaction under 28
U.S.C. § 455. Rather, the issue for this Department is how to resolve
4 We are unable to determine what percentage of requests for representation falls into each
category, since not all decisions to represent judges are reported to the Civil Division or the
Executive Office for United States Attorneys. Mr. Acosta reported four requests in the last three
years.
&“ [T]here invariably is at least an intangible interest on the part o f any judge in having his actions
vindicated.” ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1331 (1975), at 1.
Mr. Acosta expressed a concern that, in the real world, and especially in the administrative actions
with which he was familiar, judges remembered the AUSAs who had not successfully defended their
actions.
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the ethical considerations for an AUSA, who, as the Attorney Gener­
al’s representative, appears before a federal judge whom he is or has
represented.
II. Tlhe Ethical Considerations
Attorneys employed by the Department are subject to the canons of
professional ethics of the American Bar Association. 28 C.F.R.
§ 45.735-l(b). Canon 9 states: “A lawyer should avoid even the appear­
ance of professional impropriety.” To a layman, knowledge that the
government’s attorney has at some time also been the judge’s attorney
might well suggest that the AUSA will have an unfair advantage in
practice before the judge. This was recognized in a recent ethics opin­
ion in which a firm of private attorneys asked whether it could repre­
sent state judges “in actions brought against them under various federal
statutes, including, presumably, [42 U.S.C. § 1983].” ABA Comm, on
Ethics and Professional Responsibility (ABA Committee), Informal Op.
1331 (1975), at 1. The situation arose when the state’s attorney general
“declin[ed] to follow the practice of his predecessors” by providing the
judges with state attorneys for their defense. Id.The ABA Committee had some difficulty answering the question,
noting that there was “no clearly controlling provision” in the Code of
Professional Responsibility (CPR) and “no reference” in the Code of
Judicial Conduct that was relevant. Id. at 2. “ [I]n light of the sensitive
problem in question,” however, the ABA Committee turned to the
ethical considerations of the CPR:
For example, Canon 9 itself admonishes that “A lawyer
should avoid even the appearance of professional impro­
priety.” It is debatable whether serving in the capacity
suggested is to be regarded as fulfilling the role of a part-
time public officer. However, it is suggestive of the aspi-
rational level of conduct suggested by the Code of Profes­
sional Responsibility that Ethical Consideration 8-8 sug­
gests that “A lawyer who is a public officer, whether full
or part-time, should not engage in activities in which his
personal or professional interests are or foreseeably may
be in conflict with his official duties.” Obviously, contrary
policy arguments can be made that this practice ought not
to be discouraged by imposition of undue burdens upon
counsel willing to undertake a commendable and often
arduous task.
Under the described circumstances, we conclude that
the portions of the Code of Professional Responsibility
relating to the avoidance of the appearance of impropriety
suggest that in many instances it would be preferable for
your firm not to appear before a judge who is then being
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represented by you in these circumstances. Of course, it
would be advisable, if possible, to effect an advance
agreement with the court administrator establishing a pro­
cedure to avoid any conflicting representation.
Id.In view of the obvious disadvantage to the fashioning of a categori­
cal rule, especially because the factual contexts in which the question
may arise are so diverse, we hesitate, as did the drafters of Opinion No.
1331, to assert that one solution or another is best for all the varied
cases that arise in the United States Attorneys’ Offices around the
country. There are at least three alternatives that could be adopted.
First, the AUSA could disclose his prior or pending 6 representation to
opposing counsel. Disclosure of the representation will sustain the
public’s confidence in the judicial system by: (1) eliminating the suspi­
cion that something was hidden should the fact of representation come
to light later on; and (2) demonstrating that the government is willing
to disclose information which is arguably relevant, even though the
disclosure might be of use to the other party. Disclosure will also
sustain the faith of the private bar in the integrity of government
attorneys.7 These considerations are grounded in the proposition that
the impartiality of the judiciary is at the heart of its ability to enforce
its judgments. Government attorneys have a special responsibility, as
representatives of the Executive Branch in particular and of the gov­
ernment in general, to ensure that that impartiality is maintained.8
Given the sweep of the absolute immunity defense available in most
cases and the fact that a prolonged attorney-client relationship probably
will not develop between the AUSA and the judge, the disclosure
should generally establish the lack of a basis for suspecting prejudice or
favoritism on the part of the judge. There may well be unusual cases,
however, in which representation is extensive, see Stump v. Sparkman,
435 U.S. 349 (1978), and the attorney-client relationship has become
fully developed. Once the fact of representation has been disclosed, it
would be for opposing counsel to decide whether to file a motion
alleging bias or prejudice, 28 U.S.C. § 144, or for a judge to determine
whether to recuse himself. 28 U.S.C. § 455; ABA Code of Judicial
Conduct, Canon 3.® Another alternative would be for the opposing
6W hether an AUSA should ever appear before a judge whom he is then representing without
disclosure to opposing counsel obviously raises a serious ethical question
7It will also help to prevent those attacks on the judiciary which tend to threaten its dignity and
integrity. ABA Code o f Professional Responsibility, EC 8-6.
8“ Reasons which call for a high standard of conduct on the part of all attorneys are increased in
the case of counsel for the government.” Fahy, Special Ethical Problems o f Counsel fo r the Government,
33 Fed. B.J. 331, 332 (1974).
®It should not be too burdensome for an AUSA to keep track o f which judges he has represented.
The disclosure will not violate Canon 4’s injunction to protect client confidences, since the fact of
representation is presumably a matter of public record. Nevertheless, the Executive Office for United
C ontinued
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counsel to waive his right to seek disqualification of the judge. 28
U.S.C. § 455(e).10
Second, the judge could be represented by AUSAs from another
United States Attorney’s office. Since most cases involve motions to
dismiss based on absolute immunity, which could be handled largely by
mail, travel costs should be minimal. For those few cases involving
more extended representation, we believe that the more extensive the
attorney-client relationship, the more justified the cost would be to
protect the AUSA and the judge from questions about their integrity.
Finally, the Department could insist that the Administrative Office of
the United States Courts pay for outside counsel for the judges. See 53
Comp. Gen. 301 (1973).
We urge that this matter be resolved as promptly as possible in order
to give the new United States Attorneys uniform guidance on an issue
that will almost inevitably arise in their offices. Further, it would
rescue judges from a dilemma in which acceptance of representation
creates an ethical quandary both for them and for their attorneys.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
States A ttorneys may wish to issue a notice to all judges that' this fact will be disclosed in all future
cases in order to avoid any embarrassment to the judge.
W e do not believe that representation of a judge by one AUSA requires any other AUSA in the
district to inform opposing counsel o f the representation. The Judicial Conference Advisory Commit­
tee on Judicial Activities does not consider the United States A ttorney's Office a private law firm. As
a result, a judge whose son is an A U SA need not recuse himself from cases in which the government
appears, as would otherw ise be mandated by 28 U.S.C. § 455(bX5)(ii). Advisory Committee on Judicial
Activities, Advisory Opinion No. 38 (1974). See also United States v. Zagari, 419 F. Supp. 494, 505-06
(N.D. Ca. 1976) (representation by AU SA of judge on motion to quash subpoena does not require
recusal w hen either AUSA or any other member o f the United States A ttorney’s office appears).
10 “Any justice . . . shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). The Civil Division has expressed some concern that
obtaining the w aiver creates another set of problems: “ It must be noted, however, that waivers will
probably be closely scrutinized. A request by a judge for a w aiver places counsel in the awkward
position o f acquiescing or openly doubting the court’s impartiality . . . . W here a waiver is contem­
plated, then, the best procedure w ould be for the AUSA and his opponent to work it out among
them selves at the A U SA ’s initiative and then present it to the judge.”
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