Notice & Comment

ABA Urges Justice Department to Issue Guidance on Federal Government Lawyer Participation in Bar Associations

Per the ABA website:

On December 20, 2019, the ABA sent a letter to Deputy Attorney General Jeffrey Rosen urging the Justice Department to issue new government-wide guidance—based on the ABA’s Proposed Guidance—allowing government lawyers to participate more fully in the ABA and other legal professional associations. The proposed guidance is needed to correct the Office of Government Ethics’ overly strict interpretation of a federal conflict-of-interest statute (18 U.S.C. § 205), which has discouraged government lawyers from joining and fully participating in the ABA and other legal professional associations. Read the ABA letter… Read the ABA Proposed Guidance

Here’s the issue, from the ABA letter (footnotes ommitted):

…[T]he essence of the problem that we seek to resolve stems from interpretations by the Office of Government Ethics (OGE) and individual agency ethics offices of 18 U.S.C. § 205, “one of a related group of conflict-of-interest statutes found in the criminal code . . . .” The key provision at issue is the prohibition in Section 205, which provides in relevant part:

(a) Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, other than in the proper discharge of his official duties . . .

(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil, military, or naval commission in connection with any covered matter in which the United States is a party or has a direct and substantial interest;

shall be subject to the penalties set forth in section 216 of this title. . . .

(h) For the purpose of this section, the term “covered matter” means any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter.

OGE and many federal agency ethics offices have construed this prohibition very broadly. As a result, federal agency lawyers often have been prohibited or discouraged from:

• Spending time on legal association matters without taking personal leave;

• Gathering information from their agency or others for purposes of developing association policy positions;

• Expressing support for, or even communicating information about, an association position;

• Participating as a speaker on a panel at an association meeting;

• Soliciting other government lawyers to serve as speakers for such panels;

• Recruiting other government lawyers to join a legal professional association;

• Serving in leadership roles on councils and other governing bodies of such associations;

• Engaging in association discussions regarding ways to promote improvements in the law; and

• Participating in efforts, as embodied in this letter, to change the government’s policy on the issue (in a sort of Catch 22).

As described in the next section of this letter, the ABA has long believed that interpretations such as the one described above go far beyond Congress’ intent and are harmful to the government and the public, not just the ABA and other legal professional associations. Indeed, while we are understandably focused on the adverse effect of these interpretations on government lawyers, they apply to all federal employees and their participation in professional associations (e.g., participation of agency accountants in accounting associations or agency scientists in scientific societies).

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