Violet v. Brown

STEINBERG, Judge,

concurring in part and dissenting in part:

I join in Part II of the Court’s opinion except for the last paragraph that concludes that Mr. Kabatehnick’s activity on behalf of the Secretary in this case constituted “representation” within the meaning of Rule 1.9(a) of the Model Rules. Henee, I dissent from the Court’s order disqualifying Mr. Kabatch-nick from representing the appellant in this case.

In the purest sense of “agency” law, Mr. Kabatchnick was clearly acting on behalf of the Secretary. However, in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 370 F.Supp. 581 (E.D.N.Y.1973), aff'd, 518 F.2d 751 (2d Cir.1975), the court suggested that “representation” requires more than ministerial involvement with a case. Although that case was not dealing with the Model Rules, the court there concluded that “there is reason to differentiate for disqualification pur *534 poses between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited and specific purpose related solely to legal questions.” 518 F.2d at 756 . The court held that in “the latter circumstances the attorney’s role cannot be considered ‘representation’_” Id. at 757 . On that basis, I would read “representation” in Rule 1.9(a) as requiring more than “acting on behalf’ and would hold that merely signing and reviewing for accuracy the transmittal of the BVA decision is peripheral activity and not “representation”.

Indeed, such a construction is supported by comments to the Model Rules that suggest that Rule 1.9 is specifically constructed to prevent representation that gives rise to conflicts of interest or violations of confidentiality. Comment 2 to Rule 1.9 explains: “The underlying question [of the application of this rule] is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” (Emphasis added.) Even more important, comment 5 to Rule 1.10, the general rule covering imputed disqualification, notes:

The government is entitled to protection of its client confidences, and therefore to the protections provided in Rules ... 1.9(a) and (c), and 1.11. However, if the more extensive disqualification in Rule 1.9(b) were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations, and thus has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government’s recruitment of lawyers would be seriously impaired if Rule 1.9(b) were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11.

This comment thus bases the application of Rule 1.9(a) to government attorneys precisely upon the government’s right to preserve client confidences. Where, as here, the attorney’s involvement on behalf of the U.S. government was so peripheral that there is no violation of confidentiality or even an appearance of conflict, I would find that Rule 1.9(a) does not apply to the former government attorney.

Additionally, I believe that we are bound to construe “represented” in a manner consistent with the Supreme Court’s reaffir-mance in Brown v. Gardner that statutory language depends upon context. Gardner, 513 U.S. 115 , -, 115 S.Ct. 552, 555 , 130 L.Ed.2d 462 (1994). In this circumstance, we are not considering the compromising of confidential information, which may give rise to a violation under Rule 1.6. Nor are we considering the mere appearance of impropriety, which comment 5 to Rule 1.9 specifically removes from the ambit of the Model Rules. Because Rule 1.11, on its face, appears to provide a complete standard by which to judge the activities of former government attorneys, Rule 1.9(a), when applied to former government attorneys, should be construed in a manner consistent with the comments that limit its application to instances of actual — and not merely apparent — conflicts of interest.

Finally, given the federal government’s interest expressed in comment 5 to Rule 1.10, above (regarding not stifling the recruitment of attorneys for federal employment), and given the close interpretive question involved and the Court’s enormous pro se rate, I believe we should construe “representation” in Rule 1.9(a) to avoid disqualification if we are satisfied that there is no question on a case’s particular facts of an actual conflict of interest in terms of any substantive work by an attorney on both sides and no possibility of compromise of the Secretary’s confidential information.

For the foregoing reasons, I respectfully dissent.