Public Lawyer Participation in Bar Activities

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Public Lawyer Participation in Bar Activities

Meandering Through the Ethics Quagmire of Public Lawyer Participation in Professional Bar Association Activities

Is it permissible to accept reimbursement for travel costs as a council member of a section of a professional bar association? Since I am a high-ranking federal government lawyer, may I serve as an officer of a section of a professional bar association? May I use administrative leave to attend a section council meeting? These are some of the questions that persist in the minds of many government lawyers who have recognized the importance of active participation in bar association activities. Often, answers to these questions are not so easy to obtain.

For many years, the ABA has worked to convince the government to eliminate barriers to public lawyer participation in professional bar association activities. It is the ABA’s position that participation by public lawyers in professional bar association activities should be encouraged and facilitated by the government. Such participation enables lawyers to fulfill their professional responsibility to improve the law and to engage in pro bono work, and it significantly enhances their professional development and thus their value to their agencies. Their participation also provides the private bar with the perspective of the government and a better understanding of how the government conducts its business.

Unfortunately, many, especially federal, government lawyers have been unduly inhibited from participating meaningfully in the work of bar associations of their choosing due to confounding rules, vague agency policies and overly-broad criminal conflict of interest laws. There is much confusion on the part of federal government lawyers about what is, and is not prohibited and because a criminal conflict of interest statute comes into play, there is a serious chilling effect on participation. The fact that there is no one source that lists all the applicable rules, only compounds an already untenable situation. It is not surprising then, that some lawyers find the entire topic so confusing that they simply do not engage in any bar association activities whatsoever. Both the lawyer and the bar association suffer as a result.

Bar work brings together lawyers from all the various disciplines and practice settings. They come together in order to participate in a dialogue about the pressing issues of the day; promote access to the justice system; work on standards of professional conduct; provide and obtain professional development and advance the rule of law in the world. But these lofty goals will not be achieved if one sector is left out. If bar associations are denied the benefit of public lawyer participation, then an important voice is missing. Public lawyers have unique perspectives and concerns that must be aired in the councils, committee meetings and programs of bar associations.

After lengthy study, the ABA’s Task Force on Government Lawyer Participation in the ABA produced Proposed Department of Justice Guidance on Federal Government Lawyer Participation in Professional Bar Association Activities (the "Guidance"). The Guidance was produced with the goal that it be adopted by the Department of Justice and by all other executive agencies such that it would supersede all current regulations on this topic.



ABA Proposed Guidance

American Bar Association Proposed Department of Justice Guidance on Federal
Government Lawyer Participation in Professional Bar Association Activities

INTRODUCTION
Advantages of Government Lawyer Participation in Professional Bar Association Activities
Participation by government lawyers in professional bar association activities should be encouraged and facilitated by the federal government. Such participation enables lawyers to fulfill their professional responsibility to improve the law and to engage in pro bono work, and it significantly enhances their professional development and thus their value to their agencies. It also provides the private bar with the perspective of the government and a better understanding of how the government conducts its business. Thus, for example, it may help private attorneys and bar associations to develop a more balanced assessment of the effect that proposed legislation and regulations may have on executive branch agencies, and improve interpretation and enforcement of the law. In addition, it will provide the government with an additional means of communicating its perspective on issues of concern to the legal community, and an opportunity for an exchange of views with private sector lawyers on matters of public policy. Considering the importance that may be attached to recommendations of bar associations by Congress, by courts, and by the public, effective participation by government lawyers in the development of those recommendations by their profession should prove especially valuable to the government.

Increased Government Lawyer Professionalism
A government lawyer's involvement in bar activities will generally be in areas directly related to the lawyer's responsibilities in government. Government lawyers, no less than their counterparts in private practice, are understandably drawn to professional activities that focus on their areas of practice. Discussions held or recommendations considered during bar association business meetings or educational programs frequently involve the very subjects a lawyer is working on in his or her government position, such as recent court decisions or pending legislation. Bar activity thus affords the government lawyer an opportunity to work very closely with other professionals who can provide valuable insight into the perspective of the private bar, and at the same time provides members of the private bar with a better understanding of the government's views, in general and on particular matters. In this continuous learning environment, government lawyers bring valuable ideas and a broader perspective to the private bar and to their home agencies.

A government lawyer's involvement in bar activities will generally be in areas directly related to the lawyer's responsibilities in government. Government lawyers, no less than their counterparts in private practice, are understandably drawn to professional activities that focus on their areas of practice. Discussions held or recommendations considered during bar association business meetings or educational programs frequently involve the very subjects a lawyer is working on in his or her government position, such as recent court decisions or pending legislation. Bar activity thus affords the government lawyer an opportunity to work very closely with other professionals who can provide valuable insight into the perspective of the private bar, and at the same time provides members of the private bar with a better understanding of the government's views, in general and on particular matters. In this continuous learning environment, government lawyers bring valuable ideas and a broader perspective to the private bar and to their home agencies.

In sum, the opportunities for educational development, for meeting other professionals, and for discussing a wide variety of legal and policy issues fully justify the government in encouraging and facilitating its lawyers' participation in bar activity as an integral part of their government service, just as private law offices encourage their lawyers to participate in bar activity, and for the very same reasons.

Support for Government Lawyer Professional Bar Association Participation
Government lawyers generally participate in bar association activities not as official federal agency representatives, but rather in their professional capacity. Federal agencies should support such as professional participation by enabling government lawyers to use government time and resources for this purpose. The extent of such agency support will necessarily vary from case to case, depending upon what is deemed reasonable and appropriate in the applicable circumstances consistent with the agency's mission and currently available resources. Most agencies can provide access to resources for the support of professional development and training of their personnel, which could be used to defray costs associated with participation in bar association programs and activities. Particular decisions respecting the allocation of such resources can be made on a case-by-case basis, depending upon available resources and competing priorities. In short, an agency's decision to provide a general level of support for its lawyers' bar association activities, or to support a particular lawyer's bar participation, involves normal resource allocation considerations, giving due consideration to the importance of improving the professional development of government lawyers.

In some cases a government agency may designate one or more of its lawyers to represent its interests within the bar, in which case the lawyers will be regarded by their agency -- and by the bar -- as participating in an official capacity. In a few instances, some bar groups specifically reserve places on their governing bodies for government representatives. A government agency may assign a lawyer to present the agency's views at a particular bar function, or to serve as a more permanent liaison with a bar group.

Government Lawyer Participation in Professional Associations is in the Government's Interest
A government lawyer’s participation in bar activities will generally be in the government’s interest. There is no inherent conflict of interest for a lawyer in actively participating in such activities and performing such service in bar associations. Occasionally, a specific conflict could arise because of a government lawyer’s work on a particular matter, either for the government or for the bar. Only in the rare instance where a federal government lawyer formally represents a bar association before a federal executive branch agency or court, would an issue be raised under 18 U.S. C. § 205. Neither concern should discourage participation. A generalized concern for possible future conflicts should not deter federal government lawyers' full participation in most bar activities, since specific conflicts can be handled through recusal on a case-by-case basis. Moreover, a government lawyer will rarely be called upon to act as a representative of a bar association before a federal government agency. Further, § 205 has recently been significantly narrowed by the courts in its application to federal government lawyers.

To be a fully involved and effective member of a bar association, a lawyer may often be required to take on leadership positions. The more senior the leadership position, the more valuable the lawyer’s participation may be -- for the lawyer’s own professional development and for the lawyer’s agency. For example, it may increase the lawyer’s stature when representing the agency and help in recruiting new lawyers.

Government lawyers have sometimes been discouraged from becoming involved in activities sponsored by bar associations because of an assumption, in some cases inadvertently reinforced by management directives, that such participation is not a legitimate part of their service to the government. In the past, some government advice has suggested that a lawyer's participation in bar activities is not entitled to agency financial and logistical support unless it is undertaken in an official capacity, where the lawyer has been designated by agency management to represent the government. Government lawyers have been further discouraged by a concern of some that taking a leadership role in a bar association will necessarily involve them in a conflict of interest, or in some undefined improper or even illegal representational activity on behalf of the bar.

The following guidance implicitly rejects both of these assumptions. It is premised rather on a different assumption: that the government stands to benefit in a variety of ways from the participation of its lawyers in the full range of bar association activities, that this benefit will increase with the level of responsibility involved in such participation, and that it is therefore entirely appropriate for the government to support and encourage it. Accordingly, where the benefits exist and the resources are available, use of government time and resources to support individual lawyers' professional bar association activities is authorized and encouraged.

SPECIFIC GUIDANCE
1. Federal government lawyers should be encouraged to participate in programs and activities conducted or sponsored by bar associations, including professional development and continuing education, justice system improvement activities, and pro bono representations.

  • As a general matter, government lawyers should be encouraged by their supervisors to take advantage of the full range of programs and activities conducted or sponsored by bar associations. Federal government lawyers may join bar committees and become involved in and contribute to bar-sponsored projects. They should be supported by their agencies in these endeavors as part of their professional development, especially since it is in the interest of the government to do so.
  • As with their other responsibilities, lawyers engaged in bar activities should be expected to keep their supervisors apprised of their activities and to perform their assigned duties fully and promptly. Any questions about the use of government resources or time should be raised with supervisors and resolved through normal management resource-allocation processes, giving due consideration to the importance of improving the professional development of government lawyers.

2. Federal government lawyers should be authorized by their agencies to make reasonable use of official government time and resources in support of their participation in bar association activities.

  • The level of agency support for the participation of its lawyers in professional development activities, including activities sponsored by bar organizations, should be determined in accordance with normal resource allocation principles and processes, giving due consideration to the importance of improving the professional development of government lawyers.
  • Particular decisions respecting the extent of use of government time and resources for participation in bar association activities may depend upon the value the agency places on the specific bar activity, the degree of the particular lawyer's participation in it, and competing priorities.
  • The fact that a particular outside professional activity is authorized for agency support does not mean that the participating lawyer is acting in an official capacity, and such a designation will ordinarily be reserved for the unusual case where the agency has been invited by the bar to send an official observer or ex officio representative.

  • If the agency defrays all or part of the government lawyer's expense in connection with attendance at a bar meeting, in that it is in the government's interest to do so, these outlays should not be considered a part of the lawyer's salary. Similarly, if a bar association reimburses the government for this expense, this should not be considered a gift to the lawyer.

3. Federal government lawyers may accept benefits offered them by a bar association on account of their status as public employees, as long as such benefits are generally available to all similarly situated government lawyers.

  • It is not a conflict of interest or otherwise inappropriate for federal government lawyers to take advantage of discounts offered by bar associations to all government lawyers on dues, meeting costs, member benefits, and CLE course fees. Nor is it inappropriate for a government lawyer to take advantage of benefits that are available to similarly situated private lawyers, such as expense reimbursement for attendance at association meetings.
  • Government lawyers should be authorized by their agencies before accepting reimbursement from a bar association for the cost of traveling to meetings or participating in bar-sponsored programs, and approval should be given unless the circumstances are such that acceptance would create a conflict of interest or an appearance of a conflict.

4. There is no inherent conflict of interest when federal government lawyers participate in bar association activities in their own professional capacity.

  • Federal government lawyers' participation in bar association activities does not normally create a conflict of interest. Government lawyers, however, should be alert to situations where it may be necessary or prudent not to participate in a particular bar matter because of their government position.
  • Decisions concerning a lawyer's participation in specific bar association matters should be made on a case-by-case basis, since a possible conflict is dependent on the facts of the particular situation. Any questions about participation in a specific matter because of a possible conflict of interest can be raised with agency ethics officials.
  • Government lawyers must be alert to situations in which their acceptance of benefits from non-governmental sources, including bar associations, may give rise to a conflict of interest. As previously noted, lawyers should be sure that accepting such benefits is appropriate before accepting them.

5. Federal government lawyers should be encouraged to serve in leadership positions within a bar association.

  • Serving in bar association leadership positions may make government lawyers even more valuable in their government jobs. The more senior the leadership position, the more valuable the lawyers' participation may be for their professional development and for their agency. However, government lawyers in bar leadership positions must be careful to make it clear when they are acting in their governmental position and when in their professional capacity.
  • When government lawyers serve in leadership capacities in bar associations or are involved in developing bar association recommendations, they should make it clear to others the capacity in which they are acting, and should be aware of the possibility of misperception of their capacity in such circumstances.

6. Federal government lawyers may communicate information about bar policies and programs and may advocate the adoption or implementation of such policies and programs within their agencies or generally within the government.

  • Federal government lawyers may communicate with agency officials that a bar association has adopted a policy or taken a position, or that it has developed or implemented a program. In addition, they may advocate the adoption or implementation of such policies, positions, or programs, and for the government's support of them. They should, however, make clear that they are expressing their own views as professionals and are not acting as representatives of a bar association or otherwise on its behalf. If acting as representatives of a bar association, their actions should conform to Specific Guidance 7.
  • Government lawyers may allow their names to be used on bar-generated material to indicate, for example, the role they played in its preparation. They should not, however, permit their names to be used on bar-generated material to indicate that they support a particular position that has been taken by the bar association in a matter (as opposed to helping prepare a study or analysis) where they could not otherwise advocate such a position directly on behalf of the association.
  • Federal government lawyers may encourage their agencies to facilitate agency lawyers' participation in bar activities and advocate for the bar's participation in certain governmental activities, such as the selection of judges or the development of ethical standards, as long as they make clear that they are expressing their own views as professionals, and are not acting as representatives of a bar association or otherwise on its behalf.

7. Federal government lawyers may act as representatives of a bar association and may advocate the bar's position in a particular matter before the government without violating 18 U.S.C. § 205, in the following circumstances:

  • Before Congress. Because Congress is not a department, agency, or court, § 205 does not apply. However, government lawyers must make it clear that they are acting on behalf of the bar association and not their agency. They should not use or permit the use of their official title in connection with the testimony, except as part of several biographical details. They must also comply with ethical and other rules for the protection of confidential government information.
  • Before a court or executive agency, if the representation does not involve a covered matter. Section 205 extends only to matters in which the government decision at stake is focused on conferring a benefit, imposing a sanction, or otherwise having a discernible effect on the financial or similarly concrete interests of discrete and identifiable persons or entities. Accordingly, § 205 does not bar federal employees from advocating on behalf of a bar association on broad policy issues, although it may preclude such advocacy in connection with a specific pending matter involving or affecting particular parties.
  • Before a court or executive agency, if it is within one of the statutory exceptions to 18 U.S.C. § 205. Congress has enacted several exceptions to 205, including one that allows a government employee to act as a representative of a private organization consisting primarily of other government employees, and one that allows a government employee to testify under oath.

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