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

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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