Brown v. District of Columbia Board of Zoning Adjustment, 13670.

Docket NºNo. 13670.
Citation486 A.2d 37
Case DateDecember 21, 1984
CourtCourt of Appeals of Columbia District

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486 A.2d 37
Phillip J. BROWN, et al., Petitioners, joined.
Oliver T. Carr, Jr. & George Beuchert, Intervenors.
No. 13670.
District of Columbia Court of Appeals.
Argued En Banc March 5, 1984.
Decided December 21, 1984.

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Nicholas A. Addams, Washington, D.C., for petitioners.

Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C., at the time the petition for rehearing en banc was filed, Richard W. Barton, Deputy Corporation Counsel, Washington, D.C., at the time the petition for review was filed, and Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., entered appearances, for respondent.

Whayne S. Quin, Washington, D.C., with whom Norman M. Glasgow, Washington, D.C., was on the brief, for intervenors.

John J. McAvoy, Washington, D.C., on behalf of the Legal Ethics Committee of the District of Columbia Bar, appointed by this court as amicus curiae.*

Before PRYOR, Chief Judge, NEBEKER, MACK, NEWMAN, FERREN, BELSON, and TERRY, Associate Judges, and KERN** and GALLAGHER, Associate Judges, Retired.

FERREN, Associate Judge:

This case presents the question whether two former attorneys for the District of Columbia violated DR 9-101(B) by accepting private employment in a "matter" for which they had substantial responsibility while in government. We hold that the present transaction — an application to the Board of Zoning Adjustment (BZA) for a special exception to permit additional offstreet parking — is not the same as, or substantially related to, any matter these attorneys

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handled for the District. We affirm the unanimous BZA ruling that these individual attorneys, as well as intervenors' law firm, Wilkes & Artis, are not disqualified from this case.1


In Brown v. District of Columbia Board of Zoning Adjustment, 413 A.2d 1276 (D.C.1980) (Brown I), we noted that two lawyers with intervenor Carr's law firm, Iverson Mitchell and C. Francis Murphy, had served as counsel for the District of Columbia in two earlier transactions allegedly related to this one. Thus, we remanded the record to the BZA "for a determination of whether intervenor Carr's counsel should be disqualified because of previous responsibility for the same matter while employed by the District of Columbia." Id. at 1282. Specifically, we instructed the BZA to determine whether the present transaction and the two earlier ones concerning Oliver T. Carr's property in the Commercial-Residential (CR) Zone in the West End section of the District were the same "matter," within the meaning of DR 9-101(B). Id. at 1283, 1284. The three transactions are:

1. Litigation commenced by Carr in April 1975 against the Zoning Commission challenging, on Fifth Amendment grounds, the 60-foot height limitation on the property, in contrast with the general 90-foot height limitation in the rest of the zone. Carr's litigation, defended for the District by Mitchell, was successful; it increased the usable floor-area ratio for Carr's property from approximately 4.5 to 6.0 and thus increased the allowable rentable space.

2. Conversations and correspondence in October 1975 between Carr's attorneys and Corporation Counsel lawyers, including Murphy and Mitchell, about the legality of Carr's proposed air rights condominium that would mix residential and commercial uses on the same property. Carr abandoned the proposal for reasons unrelated to legal issues.

3. The present case: a 1977 application for a special exception under the zoning regulations to increase the number of below-grade parking spaces permitted for the residential "Westbridge" development on Carr's property. The firm of Wilkes & Artis — which Murphy and Mitchell had joined in 1976 — represents Carr (another firm had represented Carr in the first two transactions). Mitchell's name was on some of the pleadings; neither Mitchell nor Murphy was effectively screened from participation.2

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After remand, the BZA held a hearing, reviewed the testimony, and determined that the three transactions were not the same "matter." The BZA accordingly concluded the disqualification of Wilkes & Artis (based on the presence of Murphy and Mitchell) was not required.3

A division of this court, with one judge dissenting, reversed the BZA ruling after concluding, as a matter of law, that the special exception case at issue here constitutes the same "matter" as the two earlier transactions, within the meaning of DR 9-101(B). Brown v. District of Columbia Board of Zoning Adjustment, No. 13670 (D.C. July 15, 1983) (Brown II). Again, the division remanded the record to the BZA. Id., slip op. at 27. Before further proceedings, however, this court granted respondent's petition for rehearing en banc and vacated the division opinion in Brown II (order filed Sept. 29, 1983).


In Committee for Washington's Riverfront Parks v. Thompson, 451 A.2d 1177

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(D.C.1982), we implicitly concluded that, under DR 9-101(B), matters will be deemed the same if substantially related to one another.4 It is useful, preliminarily, to review why that test evolved and how it generally applies.


The "substantially related" test originated in litigation between private parties. T. C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp. 265 (S.D.N. Y.1953), aff'd, 216 F.2d 920 (2d Cir.1954). The court considered a motion to disqualify counsel on the ground of unethically "switching sides" — of improperly taking legal action against a former client. The court was concerned, primarily, about a violation of Canon 6 of the ABA Canons of Professional Ethics (restated as Canon 4 of the ABA Code of Professional Responsibility), enjoining lawyers to preserve client confidences and avoid conflicts of interest. The question, therefore, was whether counsel may have received confidential information from the former client that could be used against it in the subsequent representation. 113 F.Supp. at 268-69. The court announced the following rule: "Where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited." Id. at 268 (footnote omitted).5

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Courts considering side-switching from one private client to another have consistently followed this formulation. E.g., Trone v. Smith, 621 F.2d 994, 998 (9th Cir.1980); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir.1978). The question for us, of course, is how this side-switching case law applies in the "revolving door" context — in our case a government attorney who leaves to join a private 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 banc).6


The first significant case to consider a revolving door disqualification was United States v. Standard Oil Company, 136 F.Supp. 345 (S.D.N.Y.1955) (Kaufman, J.). The court not only invoked old Canons 6 and 37 (avoiding conflicts of interest and preserving client confidences) but also applied the revolving door rule of old Canon 36: "A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ." The court stressed that the purpose of Canon 36 "was to clarify the duties in Canon 6 as related to government attorneys," id. at 361, with a view to preventing "even the appearance that the government servant may take a certain stand in the hope of later being privately employed to uphold or upset what he had done." Id. at 359 (footnote omitted).

While recognizing this preventive purpose, the Standard Oil court imported into Canon 36 the same "substantially related" test used to evaluate private side-switching and thus the same focus on preventing misuse of confidential information. Id. at 353-55 (citing T.C. Theatre Corp.). The court expressly recognized "it is doubtful if the Canons of Ethics are intended to disqualify an attorney who did not actually come into contact with materials substantially related to the controversy at hand when he was acting as attorney for a former client now adverse to his position." Id. at 364. The court added, however, that a "complainant need only show access to such substantially related material and the inference that defendant received these confidences will follow." Id. at 354 (emphasis in original) (footnote omitted); see supra note 5.7 Moreover, "where there is

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a close question as to whether particular confidences of the former client will be pertinent to the instant case, an attorney should be disqualified to avoid the appearance if not the actuality of evil." Id. at 364.

Revolving door cases under Canon 9 of the ABA Code of Professional Responsibility (Avoiding Even the Appearance of Impropriety) have continued to reflect the Standard Oil court's emphasis on preserving client confidentiality. E.g., Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); see Committee for Washington's Riverfront Parks, 451 A.2d at 1188, 1191, 1192.8


Revolving door cases, however, also address concerns in addition to confidentiality. As the Standard Oil court itself recognized, 136 F.Supp. at 359, the public must be protected against the possibility that government attorneys in a variety of ways will conduct "their offices with an eye toward future private employment," whether by law firms or prospective clients. United States v. Ostrer, 597 F.2d 337, 340 (2d Cir.1979); accord Woods v. Covington County Bank, 537 F.2d 804, 814 (5th Cir.1976); General Motors Corporation v. City of New York, 501 F.2d 639, 650 n. 20 (2d Cir.1974); see ABA Comm. on Professional Ethics, Opinion No. 37 (1931) (former...

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