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June 23, 1982


The opinion of the court was delivered by: Marshall, District Judge.


Defendant Allen M. Dorfman has moved that Thomas P. Sullivan, Esq. be permitted to appear as additional counsel for Dorfman in the defense of this criminal case. Mr. Sullivan was the United States Attorney for this district from July 19, 1977 through April 30, 1981. The investigation which culminated in the indictment returned against Dorfman and others began on or before January 29, 1979 and continued through the return of the indictment on May 22, 1981, just 22 days following Mr. Sullivan's departure from office. The government resists Dorfman's motion upon the grounds that Mr. Sullivan's appearance in this action will violate 18 U.S.C. § 207(b) (Supp. II 1978) and Canon 9 of the American Bar Association's Code of Professional Responsibility which is applicable to the Bar of this court. In our judgment, Canon 1 of the Code and the ethical considerations and disciplinary rules under Canons 1 and 9 are also implicated. This appears to be a matter of first impression and it is one of considerable significance to the profession. To our knowledge, no other former United States Attorney has sought to appear in behalf of a defendant in a matter which was under investigation in the district during the United States' Attorney's term of office. For the reasons hereinafter stated, defendant Dorfman's motion is denied.

The facts relevant to this decision come from the records and files of this court, a stipulation entered into between present counsel for defendant Dorfman and the special attorneys of the United States Department of Justice who represent the government in this prosecution, the uncontroverted affidavit of Douglas P. Roller, Esq. of the Department of Justice and certain uncontroverted exhibits submitted by Dorfman in support of his brief and argument.

Mr. Sullivan was sworn in as United States Attorney for this district on July 19, 1977 and held office through April 30, 1981. Stip. 1 Before taking office he was a partner in the Chicago law firm of Jenner & Block. On March 10, 1977, while under consideration for the office, Mr. Sullivan publicly stated,

  I have been asked what I would do as United States
  Attorney in cases involving persons or firms who were
  clients of mine or of other lawyers in Jenner & Block
  while I was in the private practice. In such cases I
  intend to recuse myself and have no involvement
  whatsoever. I have been advised by the Department of
  Justice that this is not an uncommon situation,
  especially when an active private practitioner
  becomes United States Attorney. It is customary in
  such instances for the United States Attorney to
  deputize one of his assistants as Acting United
  States Attorney for purposes of that matter, or to
  have the matter assigned to the appropriate Assistant
  Attorney General of the Department of Justice in
  Washington, D.C., or an attorney designated by him,
  or to the United States Attorney from another
  district . . . I intend to avoid contact with cases
  in which there is any question about the propriety of
  my involvement, to the end that the highest standards
  of the office and of the legal profession are
  scrupulously followed.

Dorfman Memorandum, Ex. C.

From the outset of his service, Mr. Sullivan advised his first assistants, Charles P. Kocoras, now a judge of this court, and Gregory C. Jones, and the attorneys in charge of the Chicago Strike Force, first Peter Vaira, and then Douglas P. Roller, who represents the government in this action, that Sullivan would not act as United States Attorney in any matter involving the Trustees of the Central States, Southeast and Southwest Areas Pension Fund (the Fund) or Allen M. Dorfman and that he intended to disqualify himself from any matter involving those persons and appoint his first assistant as Acting United States Attorney with respect to those matters. Stip. 3.*fn1 Consistent with this stated intent, Mr. Sullivan executed written recusals and appointments of his first assistant in all cases involving the trustees of the Fund or Allen M. Dorfman as soon as he learned of the existence of matters in the United States Attorney's office involving those persons. Stip. 4. The materials submitted on the motion include written recusals in eight separate matters which meet that description. Id. (a)-(h).

On January 29, 1979, an application was made by the government to Chief Judge James B. Parsons of this court for authorization to conduct electronic surveillance of Allen M. Dorfman and others over certain telephone lines pursuant to Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510-20 (1976 & Supp. II 1978). Applications for authority to extend that surveillance and to enlarge it to include the placement of hidden microphones in Dorfman's office to intercept "live" conversations were presented to Chief Judge Parsons on a monthly basis through January, 1980. The fruits of this extensive surveillance are the underpinnings of the instant indictment. All of the surveillance applications were presented to Chief Judge Parsons over Mr. Sullivan's name as the United States Attorney for this district. However, the parties have stipulated that he was not advised nor did he know of the existence of any of the applications until shortly before March 17, 1980 when he signed a statement addressed to First Assistant United States Attorney Gregory Jones and Messrs. Roller and Fleishman of the Strike Force, which reads:

"I hereby recuse myself in the following matters:

Allen M. Dorfman, No. 80-265

Allen M. Dorfman

Joseph Lombardo, No. 80-328

Allen Dorfman

Joseph Lombardo

Roy Williams, No. 80-329

    I designate Gregory C. Jones to take charge of
  these matters in my stead with full authority with
  respect to these matters." Stip. Ex. 5.

In March, 1980, a special grand jury for this district was convened. On March 13, 1980, four days prior to the above quoted recusal, the grand jury investigation and proceedings which culminated in the instant indictment began. Mr. Sullivan did not appear before the grand jury. However, virtually all of ...

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