("Revolving Door"), No. M-81-88.

Docket NºNo. M-81-88.
Citation445 A.2d 615
Case DateApril 30, 1982
CourtCourt of Appeals of Columbia District
445 A.2d 615
(REVOLVING DOOR").
No. M-81-88.
District of Columbia Court of Appeals.
April 30, 1982.

Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, MACK, FERREN, PRYOR and BELSON, Associate Judges.

Page 616

ORDER

PER CURIAM:


On February 9, 1979, the Board of Governors of the District of Columbia Bar filed with this court a petition and supporting memorandum, supplemented by a memorandum of July 13, 1979, recommending approval of certain amendments to the disciplinary rules under Canon 9 of the Code of Professional Responsibility (incorporated in Rule X of the rules governing the Bar). The Board also proposed a related amendment to DR 5-105(D) under Canon 5 of the Code. To provide perspective and thus aid the court, the Board also submitted recommendations by the Legal Ethics Committee of the Bar which in a number of respects differed from the Board's own recommendations.

Collectively, these proposals came to be known as "revolving door" amendments, for they addressed the ethical problems encountered when a lawyer moves between government and private employment. Typically, in this situation, the private firm already has (or may wish to accept) a client involved in a matter in which the lawyer was involved on the other side while with the government. Thus, if the lawyer's own disqualification is not to be imputed to the private firm, there is a need to insulate that lawyer from his or her firm's participation in the matter, in order to prevent any actual or apparent impropriety.

On March 7, 1979, this court entered an order for publication of the Board's petition, calling for written comments by July 13, 1979. Following consideration of the many responses, we issued on April 17, 1980 a Notice of Proposed Order setting forth proposed amendments to DR 5-105(D), DR 9-101, DR 9-102, DR 9-103, and related definitions, and inviting written comments to be filed no later than June 2, 1980. See Appendix A hereto. These proposals essentially incorporated both the "screening" and "waiver" requirements of ABA Formal Opinion No. 342 (1975). (Less than a month earlier, on March 31, 1980, a division of this court had issued its decision in Brown v. District of Columbia Board of Zoning Adjustment, D.C.App., 413 A.2d 1276 (1980), which acknowledged ABA Formal Opinion No. 342 as the controlling rule.)

After reviewing the responses to the April 7, 1980 Notice of Proposed Order and after further considering the matter, this court issued on July 28, 1981 an Order and Notice of Proposed Order. See Appendix B hereto. Therein we adopted a clarifying amendment of DR 5-105(D) (as amended by Order of August 6, 1981 to cure a typographical error). We also proposed to substitute what we characterized as a "screening and affidavits" approach for the "screening and waiver" amendments in the April 17, 1980 Notice; and we eliminated the imputed disqualification of a law firm attributable to employment of former judicial and administrative law clerks (as defined). We set September 15, 1981 as the deadline for additional written comments.

In response to comments received and after further consideration, this court has made still other revisions. In particular, we now adopt suggestions that notification of disqualification shall be required (if there is a difference) upon the later of the acceptance of employment by the disqualified lawyer's firm, or of disclosure of this fact and subject matter on the public record; that notification by "a signed document," rather than an affidavit, shall suffice; and that no second filing upon completion of the representation shall be required.

This process has taken over three years since the Board of Governors of the Bar petitioned this court. The Legal Ethics Committee of the Bar actively reviewed the issues for a period of years before that. All proposals have been thoroughly reviewed by the members of the Bar, as reflected in hundreds of written critiques filed with this court, and this court has responded to the many helpful comments through three rounds of proposals published in 1979, 1980, and 1981. We are satisfied that the rules announced in this Order reflect a substantial consensus of the Bar, as well as a necessary level of public protection.

Page 617

Our dissenting colleagues suggest that this court should await the outcome of the debate by the American Bar Association House of Delegates later this year on new Rules of Professional Conduct proposed by the ABA's Commission on the Evaluation of Professional Standards (the "Kutak Commission"). We decline to do so for three reasons: First, the lawyers and the courts of this jurisdiction, where the issue is of greatest significance in the nation, have thoroughly evaluated the problem over a number of years. Second, this court's Order reflects the approach taken by the Kutak Commission while adding important clarifications. Finally, it is important not to defer any longer our reconsideration of the law of this jurisdiction, ABA Formal Opinion No. 342, which a division of this court followed two years ago in Brown, supra, and which — because of its waiver requirement — we have come to regard as unwise.

Accordingly, it is

ORDERED that DR 9-101, DR 9-102, DR 9-103, and related definitions are hereby amended to read as follows:

DR 9-101 Avoiding Impropriety or the Appearance of Impropriety.

(A) A lawyer shall not state or imply that he or she is able to influence improperly, or upon grounds irrelevant to a proper determination on the merits, any tribunal, legislative body or legislator, or public official.

(B) A lawyer shall not at any time accept private employment in connection with any matter in which he or she participated personally and substantially as a public officer or employee, which includes acting on the merits of a matter in a judicial capacity.

DR 9-102 Imputed Disqualification of Partners, Associates, and Of Counsel Lawyers.

(A) If a lawyer is required to decline or to withdraw from employment under DR 9-101(B), on account of personal and substantial participation in a matter other than as a law clerk, no partner or associate of that lawyer, or lawyer with an of counsel relationship to that lawyer, may accept or continue such employment except as provided in (B) and (C) below.

(B) The prohibition stated in DR 9-102(A) shall not apply if the personally disqualified lawyer is screened from any form of participation in the matter or representation as the case may be, and from sharing in any fees resulting therefrom.

(C) When any of counsel lawyer, partner or associate of a lawyer personally disqualified under DR 9-101(B) accepts employment in connection with the matter giving rise to the personal disqualification, or when the fact and subject matter of such employment are otherwise disclosed on the public record, whichever occurs later, the following notifications shall be required: (1) The personally disqualified lawyer shall file with the public department or agency and serve on each other party to any pertinent proceeding a signed document attesting that during the period of his or her disqualification the personally disqualified lawyer will not participate in any manner in the matter or the representation, will not discuss the matter or the representation with any partner, associate, or of counsel lawyer, and will not share in any fees for the matter or the representation. (2) At least one affiliated lawyer shall file with the same department or agency and serve on the same parties a signed document attesting that all affiliated lawyers are aware of the requirement that the personally disqualified lawyer be screened from participating in or discussing the matter or the representation and describing the procedures being taken to screen the personally disqualified lawyer.

(D) Signed documents filed pursuant to DR 9-102(C) shall be public except to the extent that a lawyer submitting a signed document shows that disclosure is inconsistent with Canon 4 or provisions of law.

(E) When the fact and subject matter of a client's employment of any of counsel lawyer, partner or associate of a lawyer personally disqualified under DR 9-101(B)

Page 618

has been otherwise disclosed to the public department or agency but not to the general public, the signed documents required by DR 9-102(C) shall be filed only with the public department or agency to which such disclosure has been made and shall not be served on any other person. So long as disclosure has not been otherwise made on the public record, the public department or agency shall keep the signed documents confidential.

DR 9-103 Preserving Identity of Funds and Property of a Client.

[Present DR 9-102, without change other than renumbering.]

Definitions

"Law clerk" means a person, typically a recent law school graduate, who acts, typically for a limited period, as confidential assistant to a judge or judges of a court; to an administrative law judge or a similar administrative hearing officer; or to the head of a governmental agency or to a member of a governmental commission, either of which has authority to adjudicate or to promulgate rules or regulations of general application.

"Matter" includes any 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.

"Participate" includes any action, directly or indirectly, through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise.

APPENDIX A
DISTRICT OF COLUMBIA COURT OF APPEALS
No. ____
NOTICE OF PROPOSED ORDER
April 17, 1980

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

The en banc Court has before it for consideration the petition dated February 9, 1979, submitted by the Board of Governors of the District of Columbia...

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7 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...the Court of Appeals announced the ``substantially related'' test after concluding that, under former DR 9-101(B), see ``Revolving Door,'' 445 A.2d 615 (D.C. 1982) (en banc) (per curiam), the term ``matter'' was intended to embrace all matters ``substantially related'' to one another--a tes......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...the Court of Appeals announced the ``substantially related'' test after concluding that, under former DR 9-101(B), see ``Revolving Door,'' 445 A.2d 615 (D.C. 1982) (en banc) (per curiam), the term ``matter'' was intended to embrace all matters ``substantially related'' to one another--a tes......
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...firm and begins to represent clients against, or before an agency of, the former government employer. See generally "Revolving Door," 445 A.2d 615 (D.C. 1982) (en The first significant case to consider a revolving door disqualification was United States v. Standard Oil Company, 136 F.Supp. ......
  • Matter of Burton, No. M-143-82.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 11, 1984
    ...when this court amended the Code of Professional Responsibility with the "revolving door" rules, now DR 9-101, -102. ("Revolving Door"), 445 A.2d 615, 618 (D.C. 1982) (en * indicates initial deposit ** indicates overage 1. Disciplinary Rule 9-102(A) provides in pertinent part: DR 9-102 Pres......
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5 cases
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...firm and begins to represent clients against, or before an agency of, the former government employer. See generally "Revolving Door," 445 A.2d 615 (D.C. 1982) (en The first significant case to consider a revolving door disqualification was United States v. Standard Oil Company, 136 F.Supp. ......
  • Matter of Burton, No. M-143-82.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 11, 1984
    ...when this court amended the Code of Professional Responsibility with the "revolving door" rules, now DR 9-101, -102. ("Revolving Door"), 445 A.2d 615, 618 (D.C. 1982) (en * indicates initial deposit ** indicates overage 1. Disciplinary Rule 9-102(A) provides in pertinent part: DR 9-102 Pres......
  • Committee, Etc. v. Thompson, No. 81-1304.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 1, 1982
    ...DR 9-101(B). See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 5-105(D) (1979); Formal Op. 342, supra. Compare "Revolving Door," D.C.App., 445 A.2d 615 (1982) (en banc) (containing current versions of these Robbins' roles in the rezoning proceedings and the task force meetings satisfy the "s......
  • Haynes v. Kuder, No. 90-816.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 31, 1991
    ...has commenced, when the position of trust is well established, and the litigation involved is reaching its culmination"). 10 See 445 A.2d at 615 ("Moreover, there is no basis upon which we can conclude that the trial court did not scrutinize the contract closely, and assign the burden of pr......
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