Whether Former Assistant United States Attorney May Represent Potential Criminal ( 1977 )

D ecem ber 21, 1977
77-72 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
Conflict of Interest—Former United States Attorney
This is in response to your inquiry regarding whether a former
Assistant United States Attorney, Mr. A, may represent a potential
defendant, Mr. X, in connection with a criminal investigation of one
Mr. Z. We understand that the investigation involves Mr. Z ’s alleged
diversion of insurance premiums from union contracts, much of which
were skimmed off in commissions and expenses through a self-con-
trolled insurance agency fronted by Mr. X. According to the Attorney-
in-Charge of the Los Angeles Strike Force, Mr. A did not participate
personally and substantially in the second investigation within the
meaning of 18 U.S.C. § 207(a), and that investigation was not under his
official responsibility for the purpose of 18 U.S.C. § 207(b).
The Attomey-in-Charge of the Strike Force states that Mr. Z was
convicted under 18 U.S.C. § 1954 in March, 1977. He states that Mr. X
was collaterally involved in the original “Z ” investigation but was not
indicted or called as a witness. Mr. A apparently had access to reports
on the first investigation and recommended against prosecution o f a
related tax case against a union official bribed by Mr. Z.
In a conversation with this Office, the Attorney-in-Charge stated that
the current investigation of Mr. Z, in which Mr. X is a potential
defendant, is entirely separate in time and circumstances from the
earlier case with which Mr. A had some connection. As we understand
it, there are no informants or transactions common to the two. It
therefore appears that the investigation in which Mr. A has been asked
to appear is not the same “particular matter” as the earlier investigation
and that Mr. A is not prohibited by 18 U.S.C. § 207 from representing
Mr. X. For the same reason, we do not believe that D R 9 - 101(B) of the
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American Bar Association Code of Professional Responsibility poses a
bar here.1
Canon 4 of the Code of Professional Responsibility requires an attor­
ney to preserve the confidences and secrets of a client. In order to
prevent an attorney from being in a position where confidences and
secrets may have to be revealed, courts have held that a lawyer is
barred from representing a client in a matter that is “substantially
related” to the subject of an earlier representation in which he may
have acquired confidential information. See, e.g„ Gas-A-Tron v. Union
O il Co., 534 F. 2d 1322 (9th Cir. 1976). As explained above, the two
investigations here do not appear to be “substantially related,” and the
Attomey-in-Charge has informed us he has no reason to believe that
M r. A may have previously acquired any confidential information that
may be useful in the present investigation. Based on this understanding,
Canon 4 poses no obstacle to the contemplated representation either.
W e do not believe that this conclusion is altered by the fact that Mr.
A will affiliate himself with a defense counsel w ho still represents Mr.
Z in an appeal from his conviction growing out o f the earlier investiga­
tion, in which Mr. A would be barred. Nor do we attach much
significance to the suggestion that the public may be skeptical that Mr.
A, as head of the Special Prosecution Unit, did not have knowledge of
the new investigation of Mr. X and Mr. Z. As we understand it, Mr. A
did not in fact have any such knowledge, which is the essential point
for present purposes.
L eo n U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
1 D R 9 - 101(B) provides that an attorney may not accept private employment in a
m atter in w hich he had substantial responsibility as a Government employee.
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