728 A.2d 625 (D.C. 1999)
This case is before us on exceptions to the report and order of the Board on Professional Responsibility (the “Board”) directing Bar Counsel to issue an informal admonition to respondent for having violated Rule 1.11(a) of the District of Columbia Rules of Professional Conduct. The rule states in relevant part:
A lawyer shall not accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.
A hearing committee and the Board both concluded that respondent had violated this rule by undertaking to represent the government of Libya in connection with criminal and civil disputes and litigation arising from the 1988 bombing of Pan American Flight 103 over Lockerbie, Scotland, after respondent, while serving as Legal Advisor in the United States Department of State, took part personally and substantially in the government’s investigation of the bombing and in related diplomatic and legal activities.
We sustain the Board’s order and adopt its comprehensive report, which sets forth (and in turn adopts) the hearing committee’s findings of fact, correctly explains the elements of a Rule 1.11(a) violation, and demonstrates why Bar Counsel proved by clear and convincing evidence that respondent violated the Rule. We limit ourselves to the following discussion, which presupposes familiarity with the Board’s report, annexed hereto.
Respondent argues that in defining the “matter” in which he took part while Legal Advisor as “the legal activities flowing from the government’s efforts to address [the Pan Am 103 bombing],” the Board bundled together activities so diverse in nature as to give him no fair warning of a potential overlap when he accepted the private representation of Libya. We are not persuaded. The activities in question, including diplomatic intervention with an unnamed country, attendance at confidential briefings on the criminal investigation, and overseeing the State Department’s response to civil third-party subpoenas, all centered about a distinct historical event involving specific parties, whether or not all had been identified. As the Board recognized, “The ‘matter’ is not terrorism, or even Libyan terrorism”; rather, “[t]he core of fact at the heart of each piece of legal activity is ... why and how Pan Am 103 blew up over Lockerbie.” The contours of the bombing and the government’s investigation and related responses to it were defined sharply enough to constitute a “matter” under the Rule.
Respondent contends that his work as Legal Advisor concerned the Pan Am 103 bombing in ways that were too marginal, infrequent, or passive to amount to “personal and substantial” participation in the matter. The main feature of the government’s response, he asserts, was the criminal investigation conducted by the Department of Justice, not the Department of State; State’s role (hence respondent’s) consisted largely of a routine response to a third-party subpoena issued by Pan Am in furtherance of its theory that the U.S. government had advance warning of the bombing but failed to act.
Respondent’s discounting of the subpoena as routine depends partly on hindsight: the district court eventually quashed the subpoena. Until then, however, the subpoena had the potential of embroiling the government in the tort litigation, and so respondent’s role in reviewing and approving the memorandum recommending the State Department’s response to the subpoena cannot be considered perfunctory. But his participation went further. After Pan Am voiced its theory of government foreknowledge at a meeting with the Secretary of State which respondent either attended or knew of, respondent’s judgment was sought on whether, or how fully, to inform the Department’s designated witness in the subpoena matter of the meeting, in preparation for his testimony. That action, as Bar Counsel points out, did not become “insubstantial” because the legal judgment was easily arrived at or because the government subsequently concluded that Pan Am’s theory of government complicity was unsupported.
Moreover, respondent’s actions take on added significance when viewed in the context of his participation, as one of a small number of senior State Department officials, in confidential oral and written briefings which periodically included information about the progress of the criminal investigation and related diplomatic actions. The fact that respondent played no role in the investigation itself and was not shown to have recommended or taken action based on the briefings is not critical. As the Board explained,
“Respondent was much more than the passive recipient of general agency information. As chief legal officer of the State Department, [he] was kept abreast of the progress of the investigation and the diplomatic efforts in response to the bombing precisely so that he could provide legal advice and perform legal duties concerning the bombing when called upon to do so.”
All told, respondent’s active participation in the Pan Am 103 matter bears no resemblance to the merely peripheral or formal involvement in a matter which the Rule does not encompass.
See Opinion No. 84, D.C. Bar Legal Ethics Committee (1980) (interpreting former DR 9-101).
Respondent’s assertion that by emphasizing his receipt of confidential information from the briefings the Board confused Rule 1.11(a) with Rule 1.6 (restricting use of client confidences or secrets) is mistaken. While he is correct that “no one has ever suggested any improper disclosure of confidences by Respondent,” Rule 1.11(a) bars participation in overlapping government and private matters where “it is reasonable to infer counsel may have received information during the first representation that might be useful to the second”; “the ‘actual receipt of ... information,’ ” and hence disclosure of it, is immaterial.
Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 50 (D.C.1984) (en banc) (citations omitted).
Rule 1.11(a) prohibits a lawyer from accepting employment in connection with a matter “the same as, or substantially related to,” a matter in which he or she took part as a public officer or employee. The inquiry is a practical one asking whether the two matters substantially overlap. Respondent insists that he stayed clear of that overlap by restricting the terms of his agreement to represent Libya so as to “assum[e] Libya’s culpability for the [Pan Am 103] bombing.” A lawyer may, of course, limit the objectives of a representation with client consent. Rule 1.2(e). But respondent’s retainer agreement exemplifies why, in our view, limiting the private representation rarely will succeed in avoiding the convergence addressed by Rule 1.11(a). While stating that “[the firm’s] efforts will not include substantial activities as litigators but rather would be limited to activities associated with agreed upon measures, including consensual dispositions,” the agreement emphasized that “[m]easures will be taken only with your [i. e., Libya’s] prior consent, and without admission of liability” (emphasis added). The proposed activities included “investigating the facts and legal proceedings, preparing legal analyses, providing legal advice and proposing legal steps to deal with” the “ongoing civil and criminal disputes and litigation” stemming from the destruction of Pan Am 103 — all clearly features of a comprehensive attorney-client relationship. We do not question the sincerity of respondent’s belief that the representation could be insulated, factually and ethically, from the investigation and diplomatic efforts of which he had been part. The “substantially related” test by its terms, however, is meant to induce a former government lawyer considering a representation to err well on the side of caution. Respondent did not do so.
Respondent points to the exact words “accept other employment” in the Rule and makes an argument which neither the Board nor the hearing committee addressed. To conclude that he had accepted employment on behalf of Libya, he maintains, the Board had to find “that [his] conditional agreement to represent Libya was capable of being legally carried out,” which required that the firm obtain the necessary OFAC authorization for the representation — a critical part of which was not received before he and his firm withdrew from the representation. Bar Counsel counters that the reason neither the Board nor the hearing committee considered this argument is that it was not raised until now and thus has been waived. See, e.g., In re James, 452 A.2d 163, 168 (D.C.1982). We have examined all of respondent’s arguments to the hearing committee and the Board and can, indeed, find none directed to “what constitutes ‘accepting] other employment’ ” (Br. for Resp. at 38). His arguments instead focused entirely upon the meaning and application of the terms “matter,” “substantially related,” and “participated personally and substantially.” We thus would be well within our authority to disregard the present argument.
In any event, we reject it on the merits. Respondent did not just conditionally agree to represent Libya — the representation actually began after four things took place: OFAC issued a specific license authorizing respondent’s firm to receive fees and expenses in connection with the pending criminal and civil cases affecting Libya; the firm received a letter of credit from Bank Credit Suisse for $2.5 million, ensuring payment of Libya’s legal fees; the firm issued a press release announcing the representation and its receipt of the license from OFAC; and the firm received the first $250,000 installment of the legal fees. Thereafter, respondent and the firm performed the services summarized in paragraph 52 of the Board’s report which included, but were not limited to, resolving continued differences with OFAC as to the correct license needed to carry on the representation. In these circumstances, it would be a wholly artificial reading of the Rule to say that respondent had not “accepted the] employment” before withdrawing from it two weeks later for reasons unrelated to OFAC permission.
A former government lawyer in the Respondent’s position is free to solicit the views of his or her former agency concerning the proposed private legal undertaking (which the Respondent deliberately elected not to do in this case), or to consult with ethics advisers in his or her law firm (which, again, the Respondent seems not to have done concerning Rule 1.11) or with the Legal Ethics Committee of the Bar (which the Respondent never suggested he did). If, while in government service or while contemplating entry into such service, the attorney deliberates the prospect that Rule 1.11 will narrow somewhat the career choices and client selections available to the attorney following departure from the government, then the Rule will have served one of its salutary objectives.
We affirm the Board’s conclusion that respondent violated Rule 1.11(a) and the Board’s order directing Bar Counsel to issue an informal admonition.
So ordered.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of:
ABRAHAM D. SOFAER, ESQUIRE, Respondent.
Bar Docket No. 280-93
ORDER OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
On December 21, 1988, Pan American Flight 103 was blown up over Lockerbie, Scotland, killing everyone on board and 11 people in the town below. The United States undertook an intensive investigation to identify the perpetrators of this terrorist act, and the families of the victims sued Pan Am for damages arising from the bombing. At the time of the bombing and the beginning of the investigation, Respondent was the Legal Adviser in the United States Department of State. In June 1990, Respondent left the State Department to join the Washington office of the law firm of Hughes Hubbard & Reed (HH & R). In November 1991, two Libyans were indicted by a federal grand jury for the bombing.
In July 1993, Respondent and HH & R were retained to represent Libya in connection with criminal and civil disputes and litigation arising from the Pan Am 103 bombing. Respondent intended to seek consensual monetary settlements with the families of the victims and negotiate arrangements by which Libya would surrender the two indicted Libyans for trial by the United States and the United Kingdom in a mutually agreeable venue. In mid-July 1993, soon after Respondent’s retention by Libya became public, he and HH & R withdrew from the representation, stating that the adverse public and governmental reaction made it impossible to accomplish the purposes for which they were retained.
Shortly thereafter, Bar Counsel initiated an investigation into Respondent’s possible violation of District of Columbia Rule of Professional Conduct 1.11(a). This rule prohibits a former government lawyer from representing a party in connection with a matter that is the same as or substantially related to a matter in which the former government lawyer participated personally and substantially while working in the government. On July 25, 1995, Bar Counsel charged Respondent with violating this rule.
Hearing Committee Number One conducted an evidentiary hearing on December 5 and 6, 1995. The Hearing Committee concluded, over the dissent of the public member, that Respondent’s representation of Libya constituted a violation of Rule 1.11(a). The Committee recommended that Respondent receive an informal admonition for his misconduct. The Hearing Committee found that “[m]ost of the facts in this case are not in dispute.” Hearing Committee Report at 5. What is hotly contested before the Board on Respondent’s exception to the Hearing Committee’s Report is whether these facts prove a violation of Rule 1.11(a). While our analysis does not follow precisely the same path as the Hearing Committee’s, it reaches the same conclusion. We adopt the Hearing Committee’s very thorough Findings of Fact virtually without change.
Respondent served as the State Department’s Legal Adviser from June 1985 to June 15, 1990. In this position, he was the State Department’s chief legal counselor and supervised the activities of the State Department’s Office of the Legal Adviser. Respondent and the other attorneys in his office provided legal advice to the Secretary of State and to other officials in the State Department and the United States government.
While Respondent was the Legal Adviser, the United States government was grappling with the appropriate response to certain acts of terrorism connected to the Libyan government. These acts included the December 1985 bombings and terrorist attacks of the Rome, Italy, and Vienna, Austria airports. Respondent met periodically with a high-level, interagency group of lawyers to consider legal issues related to the possible use of force against Libya in retaliation for its sponsorship of these terrorist acts. Other lawyers in this group included the Counsel to the President, the Legal Adviser to the National Security Council, the General Counsel of the Central Intelligence Agency, the General Counsel of the Department of Defense, the Legal Counsel to the Chair of the Joint Chiefs of Staff, and the Assistant Attorney General for the Office of Legal Counsel in the Department of Justice.
On April 5, 1986, a bomb exploded in a discotheque in Berlin, Germany, killing several United States military personnel. The United States government learned that this bombing was also connected to the Libyan government. As a result, the United States decided to take retaliatory action against Libya. Respondent met with the inter-agency group of high-level government lawyers to provide legal advice to administration officials on the sufficiency of the evidence linking Libya to the Berlin discotheque bombing, the necessity for the use of force against Libya, the proportionality of the proposed response, and the applicability of the War Powers Resolution to the proposed retaliation.
While participating in these discussions, Respondent learned details of communication intercepts linking the Berlin discotheque bombing to Libya. He also learned about passports seized from the Abu-Nidal terrorists who had committed the Rome and Vienna airport bombings, which also connected the terrorists to the Libyan government. Respondent was informed of other possible acts of terrorism that Libya was planning. Finally, Respondent was informed about potential Libyan targets that the United States was considering bombing.
On April 15, 1986, the United States government bombed Tripoli, the capital of Libya.
Much of the classified information that Respondent learned before the Tripoli bombing about Libyan terrorism was publicly disclosed by the United States government after the bombing. Respondent was not sure in his testimony at the hearing in this matter if all the information he learned was disclosed. He testified that he thought that all of the significant information, but not the way the intelligence was gathered, was made public. II Tr. 18-19, 40-41; RX6; RX 74. Respondent himself published an article, cleared by United States government authorities, concerning Libya’s terrorist activities. RX 7.
The Pan Am 103 bombing sparked a massive hunt by the United States and the United Kingdom for the perpetrators of this heinous act. As the State Department’s Legal Adviser, Respondent received the State Department’s daily written briefing report about sensitive or important matters. This classified report was provided to approximately 25 top officials in the State Department. The report periodically contained information about the progress of the United States government’s investigation concerning the bombing, which was ongoing during the remainder of Respondent’s State Department service. I Tr. 191, 206-07; II Tr. 95-96,115-16; BX 40; BX 42. Respondent also received oral briefings about matters of interest in the State Department. These briefings were provided by State Department Bureau of Intelligence and Research officials to top State Department officials, including the Secretary of State, the Deputy Secretary, Under-Secretaries, a number of Assistant Secretaries, and the Legal Adviser. Respondent testified that these oral briefings “from time to time” included information about the progress of the Pan Am 103 investigation. II Tr. 42-44, 87-88; BX 40 at 2; BX 42. Between the time of the Pan Am 103 bombing and his departure from the State Department, Respondent also had access to classified communications and cables relating to the progress of the investigation and diplomatic efforts concerning the bombing. BX 25; BX 37; BX 39 at 4. The documents to which he had access remain classified, and Respondent did not have a specific recollection of their exact content beyond information that was published in newspapers at the time of the investigation.
While Respondent was the Legal Adviser, the United States government’s investigation into the Pan Am 103 bombing focused not on Libya but on two other countries. The United States initially believed the chief suspects in the bombing were the Iranian Revolutionary Guard Corps in Iran or the Popular Front for the Liberation of Palestine in Syria, or both. Iran and Syria were also suspected of supporting these terrorist groups in committing the bombing. Iran was suspected partly because a United States Navy ship had shot down an Iran civilian aircraft over the Gulf of Iran in 1988. I Tr. 207-08; II Tr. 32-33; RX 12. In the classified briefings Respondent received as the Legal Adviser, he was informed of the evidentiary basis for suspecting that one or both of these two entities, and Iran or Syria, had sponsored the Pan Am 103 bombing. II Tr. 46-48, 54-55; II Tr. 205-07; BX 37; BX 39 at 4; RX 61.
Sometime after the Pan Am 103 bombing, Respondent participated in a diplomatic exchange with a country other than Libya, “occasioned by the Pan Am 103 bombing,” relating to that country’s responsibility for terrorist activity generally. BX 39 at 4. Respondent communicated directly with that country to persuade it to stop its terrorist activities. The details of that exchange, including the country involved, remain classified and were not disclosed at the hearing.
In 1989, families of the victims of the Pan Am 103 bombing filed wrongful death lawsuits against Pan Am and other defendants in several federal courts. In April 1989, the federal Judicial Panel on Multidistrict Litigation consolidated for pretrial purposes the federal lawsuits into one proceeding, In re Air Disaster at Lockerbie, Scotland, before the United States District Court for the Eastern District of New York (Platt, J.) (hereafter “the Civil Case”).
On September 27, 1989, Pan Am served non-party subpoenas on the State Department and five other government agencies, seeking documents and the identification of knowledgeable witnesses relating to a theory by Pan Am that the United States government had advance warning of the Pan Am 103 bombing but failed to take adequate steps to prevent it. BX 1; BX 2; BX 3; RX 13.
On November 21, 1989, the Justice Department, which represented government agencies on subpoena matters such as this, moved to quash the subpoenas because of its on-going criminal investigation into the bombing. On December 29, 1989, the Justice Department wrote to all six agencies asking for their positions on the disclosure of their documents responsive to the subpoenas. BX 1. The letter pointed out that the Justice Department would respond to the subpoenas on behalf of all six agencies. The letter stated that the Justice Department wanted the agencies’ position on disclosure under their “administrative or housekeeping regulations.” The letter also noted that all the agencies believed that Pan Am’s allegations were unfounded.
On January 31, 1990, the Justice Department again wrote to the six agencies, providing a report on the status of its motion to quash the subpoenas and describing in detail Pan Am’s theory of United States government liability for the bombing. The substance of Pan Am’s theory, as described in this letter, was that the United States government, through the CIA, received several specific warnings in the days just before the Pan Am 103 bombing about plans for an explosive to be placed on a Pan Am flight. Allegedly, some of the warnings and tips identified as the target of the attack the specific Pan Am 103 flight that was bombed. BX 2.
An attorney in the State Department’s Office of the Legal Adviser drafted a memorandum recommending the State Department’s response to the subpoena. The draft memorandum was to be transmitted from Respondent, as the Legal Adviser, and Mr. Busby, as the head of the State Department’s Office on Counterterrorism, to Edward Perkins, the State Department’s Director General, who responds to such subpoenas on behalf of the State Department. The memorandum noted that a search of State Department files revealed approximately 400 documents responsive to Pan Am’s request, but many of these documents originated with other agencies and would have to be referred to these agencies for their position on release. The memorandum stated that approximately half of the documents were classified and therefore could not be released under the “state secrets” privilege. The memorandum also reported that the Justice Department would ask for the documents to be withheld if it determined that their production would prejudice the criminal investigation. Finally, the memorandum recommended that Frank Moss, an official in the State Department’s Office on Counterterrorism, should be designated as the appropriate State Department witness to testify on the events described in the responsive documents. Attached to the memorandum were the Pan Am subpoena and the letters from the Justice Department concerning the subpoena, but the responsive documents were not attached.
Respondent read the memorandum, dated January 31, 1990, and its attachments. He did not believe that he saw any of the documents that were responsive to the subpoena. After reviewing the memorandum and attachments, Respondent approved the memorandum by initialing it. The memorandum was also signed by Mr. Busby’s deputy on his behalf and sent to Mr. Perkins. I Tr. 33-34, 39-40, 194-95; II Tr. 49; BX 3; BX 41 at ¶ 5.
Both Bar Counsel and Respondent advanced much testimony at the hearing relating to whether Respondent’s review and approval of this memorandum was, as Respondent claimed, routine and unimportant or, as Bar Counsel argued, substantial and significant. Respondent testified that because he believed Pan Am’s allegations were meritless, he did not give much consideration to the contents of the memorandum. He testified that he considered the memorandum to be a routine response to a subpoena request for documents. II Tr. 124-25. He also testified that, as Legal Adviser, he approved “a couple of dozen” memoranda per year dealing with State Department responses to subpoenas, and he perfunctorily approved this one as well. Moreover, while Respondent may have approved dozens of documents dealing with the State Department’s responses to subpoenas, this response was lengthier, related to a more complicated third party case, involved more documents than normal, concerned sensitive intelligence matters, and related to a criminal investigation being pursued by the Department of Justice. II Tr. 157, 173-76. Therefore, the Hearing Committee concluded that “Respondent’s review and signing of this memorandum constituted the exercise of his discretion to approve the legal advice in the memorandum and was not an insignificant or ministerial act.” Hearing Committee Report at 13.
In the fall of 1989 a meeting was held among Secretary of State James Baker, Mr. Busby, and Thomas Plaskett, the Chief Executive Officer of Pan Am. Respondent testified that he did not know whether he attended the meeting, although he knew he was informed about the meeting by Mr. Busby. I Tr. 202-04. But see II Tr. 111 (“I did recall the Pan Am theory and I did recall being in a meeting”); BX 39 at 5 (“I do recall, and may have attended [the Baker/Plaskett meeting]”); BX 41 at ¶ 2 (“I did recollect having attended a meeting with representatives of Pan Am”). The purpose of the meeting was for Mr. Plaskett to apprise the Secretary of State about the allegation, discussed above, that the United States government may have had advance warning of the Pan Am 103 bombing and therefore shared some culpability for it. Respondent was also informed after the meeting that the United States government investigated the allegations raised by Pan Am and believed them to be meritless.
When the State Department received Pan Am’s non-party subpoena, Mr. Busby asked Respondent if Frank Moss, the State Department official who was designated as the State Department’s knowledgeable witness in response to the subpoena, should also be informed about the information in the State Department’s possession concerning Pan Am’s theories and the Baker/Plaskett meeting. Mr. Busby had told only a limited number of government officials about the substance of the Baker/Plaskett meeting because of the sensitivity of the subject and the on-going investigation into the bombing. But by January 1990, Pan Am’s theory had been discounted by the United States government. Respondent learned that the State Department and other government agencies had investigated Pan Am’s contentions and believed them to be baseless. Respondent testified that he did not think it would do any harm to notify Mr. Moss about the substance of the Baker/Plaskett meeting. Respondent therefore advised Mr. Busby that Mr. Moss should be informed of the discussions at the meeting.
Sometime during June 1990, the United States government uncovered information linking Libya to the Pan Am 103 bombing. Investigators determined that the bomb that destroyed Pan Am 103 was activated by a sophisticated electronic timer that had been delivered to Libyan intelligence officials. This timer was identical to other timers used by Libyan terrorists who had been captured in 1988. Therefore, in June 1990, the United States government began to focus its investigation on Libya.
The evidence at the hearing indicates that Respondent did not learn of the new information linking Libya to the Pan Am 103 bombing while he was the Legal Adviser. He left the State Department to join HH & R on June 15, 1990. Although it is unclear exactly when in June 1990 the United States learned of the new evidence pointing to Libya, the Hearing Committee found that “Respondent testified forcefully and credibly that he did not know about it while at the State Department. He said he learned about the evidence in November 1991, after he had left the State Department, when the indictment of two Libyans for the bombing was announced.” Hearing Committee Report at 16. Respondent’s testimony was supported by an article he wrote for The Washington Post in July 1990, which suggested that Iran was responsible for the Pan Am 103 bombing. RX 9.
As noted above, on November 13, 1991, the United States indicted two Libyans for planting the bomb that destroyed Pan Am 103. The indictments were returned in the United States District Court for the District of Columbia (United States v. Ali Al Megrahi) (hereafter, the “Criminal Case”).
On November 24, 1991, the United States and the United Kingdom proposed a joint declaration for United Nations approval, calling for the Libyan government to surrender the two indicted Libyans for trial, to disclose all it knew about the bombing, and to pay appropriate compensation for the bombing. On January 21, 1992, the United Nations Security Council adopted a resolution condemning the bombing and urging Libya to cooperate fully in establishing responsibility for the bombing. On March 31, 1992, because Libya did not respond to the United Nations demand, the United Nations called for the imposition of sanctions on Libya.
In late 1992, Graham Wisner, a Washington, D.C. lawyer who knew Respondent, asked Respondent if he was interested in assisting Wisner in representing Libya in connection with legal proceedings in the United States arising from the Pan Am 103 bombing. Respondent replied that he would not defend Libya for anything it had done, but if Libya was looking for a way to satisfy its obligations under the United Nations resolutions, he would be interested in representing Libya for that purpose. I Tr. 210-13.
Wisner told Respondent that the Libyans were interested in having Respondent write a proposal concerning his potential representation of Libya. I Tr. 218. Respondent drafted a letter, dated January 7, 1993, proposing a representation of Libya “in connection with on-going civil and criminal disputes and litigation relating to the destruction of Pan Am 103.” BX 7 at 1; I Tr. 218. The letter, addressed “To Whom it May Concern,” stated that HH & R was prepared to assist “in resolving by consensual negotiations all pending and potential civil and criminal litigations and other legal proceedings” relating to the Pan Am 103 bombing. BX 7 at 1. HH & R proposed to commence work on this representation when Libya placed a retainer of $3 million into HH & R’s escrow account in a Swiss bank, payable to HH & R for its work at the rate of $250,000 a month.
Respondent delivered this proposal to Wisner, who gave it to “intermediaries” of the Libyan government. I Tr. 218. Respondent also met twice with representatives of the Libyan government in Geneva to discuss the proposed representation. I Tr. 219, 250-51; II Tr. 97-98.
On April 14, 1993, Respondent and a representative of the Libyan government signed two letters, similar in terms to the January 7 letter, that established the agreement by which Respondent and HH & R would represent Libya in connection with civil and criminal litigation relating to the Pan Am 103 bombing. The letters were addressed to “The Committee for the Case of Lockerbie.” This committee acted on behalf of the Libyan government and consisted of the Libyan Ambassador to Morocco, the Libyan Ambassador to Tunisia, the Libyan Minister of Foreign Affairs, and the Libyan Chief of Foreign Security. RX 4; BX 10; II Tr. 78-81.
The terms of the April 14 representation agreement specified that HH & R:
would represent you [sic] committee in connection with on-going civil and criminal disputes and litigation relating to the destruction of Pan Am 103. We are prepared to assist the relevant parties regarding the above incident by investigating the facts and legal proceedings, preparing legal analyses, providing legal advice and proposing legal steps to deal with this matter. Our efforts will not include substantial activities as litigators but rather would be limited to activities associated with agreed upon measures, including consensual dispositions. Measures will be taken only with your prior consent, and without admission of liability.
BX 10 at 1. The letter went on to point out that “[o]ur firm has excellent litigators, including former prosecutors, former State officials, and lawyers familiar with aircraft litigation, upon all of whose talents we would draw as necessary.” The agreement also stated that HH & R was unwilling to engage in any activities that would require it to register under the Foreign Agents Registration Act (FARA). This meant that HH & R would limit its activities to legal work rather than any lobbying on behalf of Libya.
The financial terms of the agreement specified that Libya would deposit a $3 million retainer into a mutually agreeable Swiss bank account for one year’s work by HH & R. The retainer would be disbursed to HH & R at the rate of $250,000 a month. The representation would begin when the Libyans provided a letter of credit to HH & R’s Swiss bank account ensuring payment of the agreed-upon fees and when HH & R confirmed that it had obtained a license from the Treasury Department’s Office of Foreign Assets Control (OFAC) permitting HH & R to receive payments from Libya legally. I Tr. 219-20.
Respondent testified that the two specific objectives of the representation were: 1) to attempt to resolve the extradition request for the two indicted Libyans in a manner acceptable to the United States, the United Kingdom, and the Libyan government; and 2) to seek consensual settlements of the civil litigation arising from the Pan Am 103 bombing in a manner satisfactory to the plaintiffs, their counsel, the court, and the Libyans. I Tr. 213-19; BX 12A; BX 27. Another lawyer at HH & R, Mr. Gerson, described Respondent’s contemplated role as “Kissingerian” — achieving a “grand scale” settlement providing compensation to families of the victims in fulfillment of the United Nations resolutions.
Respondent testified that “acting as Libya’s lawyer” he intended to work out an arrangement with the Department of Justice to have the two indicted Libyans produced to an acceptable venue for trial. I Tr. 217; II Tr. 62-63. Respondent thought that the Libyans, the United States, and the United Kingdom might agree that the trial of the Libyans could proceed in a forum other than the United States, such as Scotland. II Tr. 62-63; II Tr. 261. Respondent stated that he specifically declined to represent the two indicted Libyans in the defense of their criminal case or to represent Libya in defending itself in connection with the bombing. I Tr. 93-95, 217-18; BX 27.
Respondent also testified that he contemplated Libya making an ex gratia payment to the families of the victims of the bombing, that is, a payment by Libya without any admission of fault. I Tr. 214-18; II Tr. 63-64. While Respondent was Legal Adviser, he had successfully obtained ex gratia payments from Iraq for the families of the servicemen killed or injured on the USS Stark, a United States Navy ship that had been attacked by an Iraqi aircraft. I Tr. 183-85; RX 74 at ¶ 5. Respondent described the ex gratia payment by Iraq in the Stark case:
You accept the responsibility to pay for the damage without saying that you were liable in a tech — you know, like Iraq did in Stark. Iraq said this was a mistake, we didn’t — we wouldn’t be — we wouldn’t be responsible, if you had a trial, you wouldn’t be able to find us responsible, but we’re paying you anyway; accept responsibility in that sense at least, yes.
I Tr. 214 (emphasis added).
In preparation for their representation of Libya, Respondent and HH & R took several steps. First, they attempted to obtain the required OFAC license. OFAC administers the economic sanctions imposed on foreign countries by the United States, including 1986 sanctions on Libya. Under those sanctions, any economic transaction with Libya was prohibited unless OFAC granted a specific license to engage in the transaction or the transaction was authorized by a general license because it fit within a general category of acceptable transactions. Providing legal advice to Libya on the United States legal system was covered by a general license. Receiving payments from Libya for legal services required a specific license.
On March 11, 1993, an attorney at HH & R spoke to Richard Newcomb, the director of OFAC, regarding HH & R’s possible representation of Libya. Newcomb stated that “lobbying” to settle the Civil Case would not fall within OFAC’s general exception for legal services. Because the exact scope of HH & R’s Libyan representation was not clear at the time, Newcomb suggested that HH & R provide a written description of what it intended to do for Libya. BX 8.
On April 19, 1993, after Respondent and the Libyan representative signed the representation agreements described in paragraphs 31-33 above, an HH & R attorney advised OFAC in writing that HH & R would be providing “[l]egal representation to the Government of Libya in connection with [the Criminal Case and the Civil Case].” BX 11. Respondent and HH & R believed that it could provide such legal services under a general license, but that they needed a specific license to be paid by Libya for their services. HH & R’s letter therefore requested a specific license for receipt of payments from Libya for legal services. BX 11.
On May 10, 1993, OFAC issued a specific license to HH & R to receive payments of fees and expenses in connection with the Criminal Case, the Civil Case, and any other United States court cases relevant to the Pan Am 103 litigation. OFAC also required HH & R to file a copy of the specific license with “the court.” BX 12.
Respondent and HH & R were aware of an ethical issue related to their proposed representation of Libya because another attorney at HH & R, Allan Gerson, represented a plaintiff who was seeking compensation from Libya for the Pan Am 103 bombing. I Tr. 237-39. Mr. Gerson, a law professor on leave from his university, had been working at HH & R in an “of counsel” capacity since January 1991. On July 1, 1992, Mr. Gerson had written an article in The New York Times proposing adoption of a United Nations resolution establishing an international claims commission to administer compensation by Libya for the families of the Pan Am 103 victims. As a result of his article, two men whose relatives were killed in the bombing, Bruce Smith and Paul Hudson, retained Mr. Gerson and HH & R to seek compensation from Libya through the establishment of the United Nations commission. By early 1993, Mr. Gerson began contemplating suing Libya in the United Kingdom on behalf of his clients.
On January 4, 1993, Respondent told Mr. Gerson that Respondent and HH & R were considering representing Libya in connection with the Pan Am 103 bombing. Respondent informed Mr. Gerson that they should not discuss Mr. Gerson’s representation of the Pan Am 103 plaintiffs because Mr. Gerson “might be on the other side” if Respondent were retained by Libya. I Tr. 111-12. Respondent believed that it would have been an ethical conflict for him and HH & R to represent Libya with regard to payment of compensation to the relatives of the victims while at the same time another HH & R lawyer was considering a lawsuit against Libya on behalf of the relatives of the victims. I Tr. 237-38; BX 39 at 2. Charles Scherer, the managing partner of HH & R, agreed that this situation raised a conflict under the District of Columbia ethics rules. II Tr. 235-36.
On March 24, 1993, Mr. Scherer and Robert Sisk, the chairman and senior litigating partner of HH & R, informed Mr. Gerson that an ethical conflict was developing because of HH & R’s impending representation of Libya. Mr. Scherer testified that Mr. Gerson was told that he would have to leave HH & R if it were retained by Libya. II Tr. 235. Mr. Gerson testified that he understood that if the firm agreed to represent Libya, he would either have to withdraw from representing the Pan Am plaintiffs or leave the firm.
On April 16, 1993, after the representation agreements between Libya and HH & R were signed, Mr. Gerson wrote a letter to HH & R announcing his intention to withdraw from his position with the firm and return to teaching full-time. BX 10A. This letter confirmed that Mr. Gerson was continuing his representation of Mr. Smith, one of the Pan Am plaintiffs; Mr. Gerson no longer represented the other plaintiff, Mr. Hudson. Mr. Smith subsequently signed a letter terminating any relationship between himself and HH & R, confirming that he wanted to be represented by Mr. Gerson, and consenting to HH & R’s representation of Libya. RX 35.
John Townsend, the managing partner of the Washington office of HH & R, assisted in HH & R’s preparations to represent Libya. HH & R had a firm-wide ethics committee, and a Washington HH & R partner, Bill Stein, was a member of that committee. Mr. Townsend consulted with Mr. Stein concerning the ethical rules applicable to HH & R’s proposed representation of Libya. According to Mr. Townsend, sometime after HH & R and Respondent agreed in April 1993 to represent Libya, Respondent asked Mr. Townsend for a copy of any ethics rule applicable to the proposed representation. Mr. Townsend consulted with Mr. Stein, who said that Respondent should keep in mind Rule 1.11 as well as Rule 1.9. Respondent was given a copy of both rules. II Tr. 252-59.
Respondent testified at the hearing that he did not specifically recall discussing Rule 1.11 with Mr. Townsend, Mr. Stein, or anyone outside the firm to determine whether this rule prevented Respondent from representing Libya. Respondent said, however, that the issue “certainly came up.” II Tr. 116-22, 268-70. He testified that he consulted with members of the firm about the ethics issues surrounding the proposed representation of Libya, but he did not “systematically” address whether his prior service as the Legal Adviser precluded his representation of Libya under Rule 1.11. Respondent testified that much more important to him was the question whether he had learned any “confidential information” as Legal Adviser that might have to be revealed during his representation of Libya, and because he believed he had not learned such information, he “thought [Rule 1.11] was clearly inapplicable” to his representation of Libya. II Tr. 109, 118-21. Respondent said he did not think that Rule 1.11 was “a major issue” or a “real issue” concerning his proposed representation. II Tr. 120-21.
Respondent did not consult with the State Department before undertaking the Libyan representation to determine if it had any objection to his representing Libya. He also did not check with the State Department to determine whether he had worked on any matters while in the government that arguably could be considered substantially related to his representation of Libya. II Tr. 83. Respondent said he refrained from doing so before the representation began because he knew his representation of Libya would create a “bombshell,” and he was not confident that Libya would follow through with its intent to hire him. Libya had courted other lawyers in the past but had not retained them. Moreover, according to Respondent, he believed that the limitation he placed on the scope of the representation — seeking consensual resolutions only and not helping Libya avoid liability — made everything he learned at the State Department irrelevant, since he was proceeding on the assumption that Libya was responsible for the bombing.
HH & R did take action to “wall off” Peter Flory, a law clerk at the firm, from any involvement in the Libyan representation. From January 1992 to January 1993, Flory had served as the Associate Coordinator in the State Department’s Office on Counterterrorism. This office helped coordinate the work of federal agencies, including the FBI and the Justice Department, in connection with counterterrorism issues worldwide. According to Mr. Flory, the Office on Counterterrorism was the lead office in developing United States policy with regard to the bombing of Pan Am 103. During the time Mr. Flory worked in that office, he was involved in deliberations regarding the Pan Am 103 bombing, working directly in support of the development and implementation of U.S. diplomatic and other policy with regard to Libya’s sponsorship of the attack. Because Mr. Flory had been privy to classified and confidential information connecting Libya to the bombing, HH & R decided he should not be involved in the firm’s representation of Libya. According to Mr. Townsend, the managing partner of HH & R’s Washington office, he asked Mr. Flory to send a letter to the State Department confirming that he would not be involved in HH & R’s representation of Libya “so that there would be no question of concern at State that any classified information that was lurking in Peter [Flory’s] mind was being applied to this representation.” II Tr. 257-58.
On June 24, 1993, HH & R received a letter of credit from Bank Credit Suisse for $2.5 million, ensuring payment of Libya’s legal fees. BX 14. On June 30, 1993, HH & R sent a statement billing Libya $250,000 for professional “services and advice” to be performed by Respondent and HH & R for Libya during the month of July 1993. BX 15.
On July 1, 1993, HH & R received $250,000 in its Geneva bank account from Libya. Respondent and HH & R considered its representation of Libya to begin on July 1.
Respondent and HH & R took several initial steps as part of its representation of Libya. Various research projects were assigned to HH & R attorneys, such as compiling docket entries in the Pan Am 103 Civil Case, collecting reported decisions arising from litigation relating to the bombing, surveying United States practice regarding trials of international fugitives, surveying relevant treaties between the United States and Libya, and researching procedures for filing an OFAC license with a court. Respondent and other HH & R lawyers also met to discuss possible approaches to the resolution of the Criminal and Civil Cases. In addition, Respondent wrote to a member of the Libyan committee to request relevant documents from Libya.
Although HH & R had obtained a specific license from OFAC to receive payments for its legal services, there was still some question whether HH & R’s contemplated legal representation exceeded the services permitted under OFAC’s general license. Moreover, HH & R was concerned about having to file the specific license with the court overseeing the Civil Case, as required by the license. Libya was not a named party in the Civil Case, and HH & R thought that filing the specific license with the court might be construed as waiving the sovereign immunity of Libya from a lawsuit in the United States. As a result, on July 1, 1993, HH & R wrote to OFAC requesting a meeting to discuss the terms of the OFAC license. BX 16.
On July 12, 1993, HH & R issued a press release announcing that it had “been retained by the Government of Libya to assist it in seeking a consensual resolution of litigation arising from the Pan Am 103 disaster.” BX 19. The release quoted Respondent as stating: “This retention does not mean that Libya or either individual defendant has decided to appear in the criminal or civil cases. Hughes Hubbard & Reed will advise the Government of Libya with a view to developing solutions for the differences which exist in these litigations, and which are acceptable to all parties; we will not litigate actively in defense of Libya or the individual defendants.”
The release provoked extremely negative public reaction, including an editorial on July 14 in The Washington Post comparing Respondent’s representation of Libya to the movie “Indecent Proposal.” BX 20; BX 24. On July 14, in response to media inquiries, a State Department spokesperson stated that the State Department would not comment on whether Respondent’s representation of Libya created a conflict of interest.
On July 15, 1993, Respondent and another HH & R lawyer met with the Director of OFAC and other OFAC officials. The OFAC officials advised Respondent that a general OFAC license permitted HH & R to provide Libya with legal advice and to represent Libya concerning potential extradition of the two indicted Libyans. Because Libya was not a party to any proceeding in the United States, the general license did not permit HH & R to pursue settlement negotiations on behalf of Libya. A specific license was needed for that purpose. Respondent testified that he stated at the meeting that he intended to contact the lawyer representing the families of the victims about the possibility of commencing settlement negotiations, and if that process looked like it was going to proceed, he would apply for another specific license as required by OFAC. On July 15, 1993, Respondent wrote to a lawyer for the Pan Am plaintiffs to describe Respondent’s role in representing Libya.
Also on July 15, 1993, Respondent wrote to the State Department’s Legal Adviser, Conrad Harper, expressing displeasure with the statement attributed to the State Department official concerning Respondent’s representation of Libya. Respondent’s letter to Mr. Harper described the proposed scope of his and HH & R’s representation of Libya and stated that Respondent did not see any legal or ethical impediment to it. The letter asked for the State Department’s appraisal of this position. BX 25. Later that day, after his meeting with OFAC officials, Respondent wrote to Mr. Harper again to clarify the nature of HH & R’s representation of Libya and to ask for a prompt reply about the propriety of the representation. BX 27.
On July 16, 1993, Respondent and HH & R withdrew from representing Libya. They issued a press release announcing the withdrawal and stating that the public perception of HH & R’s undertaking and the reaction of government authorities were so negative that HH & R concluded that it could not effectively carry out the representation. Respondent testified that the public reaction and the inaccurate portrayal that HH & R was trying “to get Libya off the hook” had caused the families of the victims to react unfavorably. In addition to the families’ reaction, a hostile response from United States government officials, including Senators and State Department officials, made Respondent and HH & R conclude they could not reach consensual resolutions of the Civil and Criminal Cases and therefore should withdraw. Respondent stated that he and HH & R withdrew because “we didn’t think we’d be able to do the job effectively.” II Tr. 122.
HH & R subsequently applied to OFAC for a specific license to return the $250,000 payment it had received from Libya for services rendered during July 1993. That license was granted, and HH & R returned the $250,000 to Libya.
In response to a request from United States Senator Carl Levin, the Office of Government Ethics (OGE) reviewed whether Respondent’s conduct violated any applicable post-employment restrictions on government employees, including 18 U.S.C. § 207. This statute prohibits a former federal government employee from communicating or appearing before a federal government agency, with the intent to influence the government, in connection with a particular matter in which the former official participated personally and substantially when in the government. OGE concluded that because Respondent had not yet contacted any government officials with the intent to influence them in connection with his Libyan representation, he had not violated this statute. OGE made no judgment on the hypothetical question whether Respondent would have violated the law if he had continued the representation and made substantive communications to executive branch officials on behalf of Libya. BX 46.
The United States Attorney’s Office for the District of Columbia also investigated the circumstances surrounding HH & R’s application for an OFAC license but closed its investigation without bringing any charges.
On July 22, 1993, as a result of his review of press articles about Respondent’s representation of Libya, Bar Counsel began an investigation into Respondent’s conduct. Bar Counsel sent Respondent a letter asking for his response to the allegation that his representation of Libya may have violated the District of Columbia Rules of Professional Conduct, particularly Rule 1.11(a).
In response to these investigations, on August 18, 1993, Respondent’s counsel sent to the State Department a draft of two paragraphs describing Respondent’s recollection of the matters on which he worked while the Legal Adviser that related to the Pan Am 103 bombing. Respondent’s counsel asked whether these recollections were accurate. BX 37. According to this submission, Respondent recalled his diplomatic exchange with the country other than Libya and recalled that he either attended or knew about the Baker/Plaskett meeting. On August 20, 1993, the State Department’s Legal Adviser, Mr. Harper, responded that the State Department was not in a position to verify the accuracy of Respondent’s submission. Mr. Harper noted, however, that Respondent had signed the January 31, 1990, memorandum concerning the State Department’s response to Pan Am’s non-party subpoena. BX 38. Respondent testified that he had forgotten about that memorandum until Mr. Harper’s letter reminded him of it. I Tr. 198-99; II Tr. 110-11; BX 41.
Bar Counsel and Respondent agreed to a diversion agreement in April 1995, which was rejected by the Board Chair on May 1, 1995. Respondent rejected an informal admonition offered by Bar Counsel, so Bar Counsel petitioned the matter and brought it to a hearing.
Hearing Committee Number One held a two-day evidentiary hearing on December 5 and 6, 1995. Bar Counsel and Respondent were given the opportunity to submit briefs, and to address specific legal issues posed by the Committee concerning the interpretation of Rule 1.11(a).
In a Report and Recommendation dated October 22, 1996, Hearing Committee One concluded after a thorough analysis of the facts and the law that “Respondent did participate personally and substantially while at the State Department in the response to the Pan Am 103 bombing, including the government’s investigation and the establishment of liability for it. [The Committee further] conclude[d] that this matter was substantially related to his later representation of Libya and therefore Respondent violated Rule 1.11(a).” Hearing Committee Report at 51. The Committee recommended an informal admonition as the appropriate sanction for Respondent’s misconduct. Hearing Committee Report at 70-72.
The public member of Hearing Committee One dissented, because she disagreed that Respondent obtained confidential information in his capacity as Legal Adviser that could have been useful in his subsequent representation of Libya, given the limits on Respondent’s representation and the lack of any real doubt by July 1, 1993 as to whether Libya was responsible for the Pan Am 103 tragedy.
This matter is before the Board on Respondent’s exception to the Hearing Committee’s Report and Recommendation.
Rule 1.11(a) states in pertinent part:
A lawyer shall not accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.
Therefore, the essential elements to show a violation of Rule 1.11(a) are:
(1) a government lawyer
(a) participates as a public employee in a matter,
(b) both personally and substantially;
(2) followed by the lawyer’s leaving the government and accepting employment in another matter that is
(a) the same as, or
(b) substantially related to the original matter.
We outline first the definitions and case authority available to us in construing the Rule. We then apply these provisions to Respondent’s conduct, taking into account the arguments made by Respondent and Bar Counsel.
The definition of “matter” for purposes of Rule 1.11(a) is crucial for an analysis of whether any “matter” in which Respondent participated as Legal Adviser is the same as, or substantially related to, the representation of Libya he undertook at HH & R. At all times relevant to Respondent’s conduct, Rule 1.11(g) defined “matter” as: “[A]ny judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties.” Comment [3] to Rule 1.11 explains that “[t]he making of rules of general applicability and the establishment of general policy will ordinarily not be a ‘matter’ within the meaning of Rule 1.11.”
The District of Columbia Court of Appeals has not been presented with a case requiring interpretation of the word “matter” in the context of Rule 1.11(a) since the Rules became effective on January 1, 1991. The leading case interpreting predecessor DR 9-101(b), Brown v. District of Columbia Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc), noted with approval the characterization of “matter” by the American Bar Association’s Committee on Professional Ethics and Grievances, which described a matter as “ ‘a discrete and isolatable transaction or set of transactions between identifiable parties.’ ” 486 A.2d at 42 n. 4 (emphasis in original), quoting Committee for Washington’s Riverfront Parks v. Thompson, 451 A.2d 1177, 1188 (D.C. 1982). In Committee for Washington’s Riverfront Parks, 451 A.2d at 1188, the Court quoted at length the description of “matter” by the ABA Committee:
Although a precise definition of “matter” as used in the Disciplinary Rule is difficult to formulate, the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. Perhaps the scope of the term “matter” may be indicated by examples. The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101(b) from subsequent private employment involving the same regulations, procedures, or points of law; the same “matter” is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties. [(ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 at 6 (1975)) (footnotes omitted).]
The second essential element necessary for Bar Counsel to show a violation of Rule 1.11(a) is that the government lawyer must have participated in the government matter “personally and substantially.” The Comments to Rule 1.11 do not address personal and substantial participation, and no definition of this term is provided. No District of Columbia case interprets the meaning of personal and substantial participation in the context of a disciplinary proceeding. The regulations implementing 18 U.S.C. § 207 provide some insight on this issue, although in the distinct context of guiding interpretation of a criminal statute banning conflict of interest by government employees:
“Substantially,” means that the employee’s involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.
5 C.F.R. § 2637.201(d)(1). However, “the single act of approving or participation in a critical step may be substantial,” if the act is of significance to the matter.
In an opinion interpreting DR 9-101, the D.C. Bar Legal Ethics Committee opined that a government lawyer’s participation in a matter was personal and substantial because it was “direct, extensive, and substantive, not peripheral, clerical, or formal.” Opinion No. 84 (1980).
The third essential element for a violation of Rule 1.11(a) is that the matter in which the government lawyer participated must be “substantially related” to the subsequent matter in which he or she represents the private client. The methodology for determining whether two matters are “substantially related” in the revolving-door context, under DR 9-101(b), was the subject of extended analysis by the en banc Court in Brown. Brown concerned whether counsel for a private real estate developer should be disqualified in a Board of Zoning Adjustment proceeding where the counsel previously had been counsel for the District of Columbia in two earlier transactions relating to the same piece of real estate. 486 A.2d at 40. In Brown, the Court noted that the substantial relationship test originated in litigation between private parties in the context of a motion to disqualify counsel on the grounds that a lawyer had unethically switched sides between private litigants. 486 A.2d at 42. The Court cited T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953), aff’d, 216 F.2d 920 (2d Cir. 1954), a case in which the central purpose of the ethical prohibition against side-switching was described as preventing a private lawyer who may have received confidential information from using it against the client in a subsequent representation.
The Court described the test that was generally used to determine if two matters were substantially related in private side-switching cases:
“Initially, the trial judge must make a factual reconstruction of the scope of the prior legal representation.” If the factual contexts overlap, the court then has to determine “whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those [prior] matters.” Finally, if such information apparently was available to counsel in the prior representation, the court has to determine whether it “is relevant to the issues raised in the litigation pending against the former client.” If all three conditions are met, the matters will be substantially related and thus deemed the same for conflict of interest purposes, with doubts to “be resolved in favor of disqualification.”
486 A.2d at 49 (citations and footnotes omitted) (quoting Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir. 1978)).
The Brown Court then examined the revolving-door situation, in which a lawyer leaves the government to enter private practice. The Court concluded that the revolving-door rule, like the side-switching rule, was designed to address at least a reasonable possibility that some specifically identifiable impropriety would occur. 486 A.2d at 49. The Court emphasized that the critical issue was whether the attorney had the opportunity while participating in a matter in the government to gather specific information that the attorney could not otherwise have gained and that could be used on behalf of a private client in a later proceeding. The information of concern was not general data, or general agency expertise and contacts, but specific information. 486 A.2d at 48-49.
The Brown Court concluded that the Westinghouse private side-switching test should be broadened in a government revolving-door case for several reasons. First, because government attorneys may have had access to more kinds of information than private attorneys typically do, there is a greater potential for misuse of government information in the revolving-door situation. Second, the public generally is more concerned about government improprieties than private improprieties, and the appearance problem is more severe because the public is likely to be more critical of the potential abuse of information by a government lawyer entering private practice. Third, the complainant in a revolving-door situation may not have specific knowledge of the information gathered by the government lawyer. 486 A.2d at 48.
As a result, the Court in Brown articulated a broad test for determining whether a substantial relationship exists between two matters in revolving-door cases:
Accordingly, in cases where the complainant’s evidence shows that the factual contexts of the two (or more) transactions overlap in such a way that a reasonable person could infer that the former government attorney may have had access to information legally relevant to, or otherwise useful in, the subsequent representation, we conclude that the complainant will have established a prima facie showing that the transactions are substantially related. The burden of producing evidence that no ethical impropriety has occurred will then shift to the former government attorney, who must rebut complainant’s showing by demonstrating that he or she could not have gained access to information during the first representation that might be useful in the later representation. Absent sufficient rebuttal, the complainant will have carried the burden of persuasion as the moving party.
486 A.2d at 49-50 (footnotes omitted).
The Court in Brown stressed that it would not be adequate rebuttal for the former government lawyer to state that no useful information was in fact received during the government representation. The Court declared that if it was reasonable to infer that the lawyer may have received useful information during the government representation, there would be a conclusive inference that useful information was in fact received. 486 A.2d at 50. The lawyer’s rebuttal case had to focus instead on the scope of the representation involved in each matter and not the actual receipt of information:
To rebut a complainant’s prima facie showing of substantial relationship, the former government attorney must produce evidence elaborating on the nature of the two matters so as to make it “clearly discernible” that the issues involved are unrelated and the court should not infer the existence of useful government-developed information.
486 A.2d at 50 n. 18 (quoting Westinghouse Electric Corp., 588 F.2d at 224).
The Court also made clear that it would not inquire into the specific information or confidences disclosed during the government representation, or whether that information was used by the former government lawyer in private practice. The Court noted that it would not require proof that an attorney actually had access to or received privileged information in the prior case. “Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.”
Brown, 486 A.2d at 42 n. 5 (quoting T.C. Theatre Corp., 113 F. Supp. at 268-69).
While the Court in Brown set out a methodology for determining when matters are substantially related that is designed to give wide scope to the protection of the public, it made clear by its exacting analysis of the facts that it would take care in applying that test to each case, so that private employment following government service would not be unduly constrained. In Brown, the two lawyers involved, while previously at the D.C. Office of Corporation Counsel, had worked on two transactions involving the property: the developer’s attempt to increase the height limitation on the property and the developer’s attempt to mix residential and commercial uses on the property. When the two lawyers left the government, they were retained by the same developer to handle another zoning issue involving the same property: the developer’s application for a special zoning exception to increase the number of below-grade parking spaces permitted on the property. 486 A.2d at 40-41.
In deciding a motion to disqualify the two lawyers from representing the developer in the BZA proceeding involving the parking spaces, the Court applied the methodology described above to determine whether the matters were substantially related. The Court concluded that the lawyers could not have gained any information in the earlier proceedings that would have aided them in their subsequent representation, and therefore the matters were not substantially related. 486 A.2d at 53, 58-59. The Court looked beyond the surface facts that the developer and property were the same, to the issues involved in the various representations, in reaching that conclusion.
When the District of Columbia Court of Appeals adopted the Rules of Professional Conduct in 1991, it also adopted the Comments to the Rules. See Preface to Rules of Professional Conduct (adopting Rules and Comments). Comment 4 to Rule 1.11 contains an explicit description of the Brown methodology for analyzing the substantial relationship element of Rule 1.11(a):
The leading case defining “substantially related” matters in the context of former government employment is Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc).