Conference of Western Attorneys General Sun Valley, Idaho August 2009

2. Legal Ethics— The Revolving Door Conundrum Conference of Western Attorneys GeneralSun Valley, Idaho August 2009 Richard Frank Executive Director Center for Law, Energy & the Environment Berkeley Law University of California Berkeley, CA 94720-7200 (510) 642-8305 rfrank@law.berkeley.edu www.clee.berkeley.edu

3. Sources • Federal Statutes and Regulations: 18 U.S.C. § 203 (sources of fees); 18 U.S.C. § 207 (personal and substantial involvement ban; cooling off periods); 18 U.S.C. § 208 (prospective employment) 25 U.S.C. § 450i(j) (tribal representation) 5 C.F.R. Part 2635 (implementing regs for 18 U.S.C. provisions) • State Statutory Rules (California): Cal. Government Code § 87401 (switching sides) Cal. Government Code § 87406 (revolving door) Cal. Government Code § 87407 (prospective employment) Cal. Government Code § 1090 (conflicts of interest/contracts) Cal. Public Contract Code § 10411 • ABA Model Rules: Rule 1.11 (personal and substantial involvement matter ban, prospective employment)

4. The 18 U.S.C. § 207 Basics • Lifetime Prohibition on matters on which there was personal and substantial involvement: bans representation of a client before any department, agency, court or court-martial of the United States or District of Columbia regarding any particular matter involving specific parties on which the attorney was “personally and substantially” involved while in government service. 18 U.S.C. § 207(a)(1). • Two-Year Prohibition on matters under the official’s supervision: bans representation of a client before the federal government on particular matters which were pending under the former employee’s supervision during the one-year period predating his or her resignation from the government. 18 U.S.C. § 207(a)(2). • One-Year “Cooling Off Period” relating to communications with the official’s former agency: prevents “senior officials” from making any communication to or appearance before the agency at which such employee worked seeking official action on any matter. 18 U.S.C. § 207(c). • Two-Year “Cooling Off Period” relating to communications with any executive branch agency: prevents “very senior officials” from making any communication to or appearance before not only their own agency, but also before “any person appointed to a position in the executive branch which is listed in section 5312, 5315, 5314, or 5316 of title 5”. 18 U.S.C. § 207(d).

5. ABA Model Rule 1-11Conflicts of Interest—Current & Former Government Officers & Employees • (a) A lawyer who has formerly served as a public officer or employee of the government…[s]hall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee [without the government’s written consent]. • (b) Once an attorney is disqualified under (a), entire law firm likewise disqualified unless attorney screened from any participation • Former government attorney may not share in any fees received by new firm from its representation of party opposed to the government • Former government attorney may not disclose/utilize confidential information on behalf of any private client (incl. policy & people)

6. Scenario # 1 • Large firm hires new law school graduate as associate • Then defers start date for economic reasons, & provides 1-year, $75,000 stipend to pursue “public interest” work of grad’s choice • Grad volunteers to work for Attorney General’s Office “for free” • Can/should the AGO agree to take on this volunteer lawyer? • Does answer change if the attorney is a 2nd-year firm associate? • Does answer change if attorney is 2nd year firm associate who’s worked in same legal subject area s/he wants to volunteer for AGO?

7. Scenario # 2 • Jane leaves USDOI Solicitor’s Office to join Acme Law Firm • At DOI, Jane worked on Bureau of Reclamation/water issues • Can Jane go back to DOI to meet with former DOI colleagues on behalf of Acme clients on a water allocation issue? • Can Jane meet with other, former DOI colleagues on behalf of clients re: an Endangered Species Act issue involving a national park? • Can Jane meet with still other DOI former colleagues on behalf of clients re: an offshore oil and gas leasing issue? • Do your answers change if Jane previously worked for your state A.G.’s Office, rather than DOI?

8. Scenario # 3 • Can former DOI staff attorney Jane meet with USDOJ’s Environment & Natural Resources Division attorneys on behalf of an Acme client re: a matter Jane had nothing to do with at DOI? • Does your answer change if Jane is a former AAG In your state who seeks to lobby state fish and wildlife officials on a matter Jane had nothing to do with at the AGO?

9. Scenario # 4 • Gary served as Deputy Assistant Secretary for Indian Affairs at DOI • Gary is an attorney licensed in his home state, but didn’t function at DOI as an attorney • Gary leaves DOI and joins a private law firm that represents Indian tribes in matters involving the federal government • Can Gary represent those tribes before DOI re: matters on which he worked while at DOI? • If Gary instead joins a consulting firm that holds itself out as a lobbying shop rather than a law firm, does your answer change? • If Gary leaves DOI to become employed directly by a tribal government to practice law and lobby (rather than a separate firm), does your answer change? • If Gary originally worked as an AAG for the state Attorney General, rather than DOI, do your answers change?

10. Scenario # 5 • Karl is a state AAG who represents the state Dept. of Water Resources • Carrie is the Deputy Director of the state DWR • Karl & Carrie worked to formulate DWR’s bargaining position in contract negotiations with AquaCorp to provide engineering services • Karl & Carrie leave state service to join AquaCorp • 18 months later, AquaCorp’s president asks Karl & Carrie to negotiate with DWR to “close the deal” on the contract • Can they? • If not, what are the consequences if the contract is finalized?

11. Scenario # 6 • State AAG Deb, representing DFW, has concluded 3-week trial v. Eastlands Water District & its law firm, Dewey & Associates. • Deb & DFW prevailed, and Eastlands has filed an appeal • Dewey, impressed with Deb’s work in the trial, offers her an Of Counsel position with the law firm • Eastlands is advertising for a new General Counsel, and asks Deb to apply • Can Deb pursue discussions with the Dewey firm? • Can Deb apply for the legal position at Eastlands? • If so, are there any limitations on her government law practice in the meantime?

12. For further information: • Richard Frank • Executive Director • Center for Law, Energy & the Environment • Berkeley Law • University of California • Berkeley, CA 94720-7200 • (510) 642-8305 • rfrank@law.berkeley.edu • www.clee.berkeley.edu