government agents in executing the orders authorizing the
surveillance. All of the defendants, including Dorfman, sought
discovery of grand jury testimony upon the ground of misconduct
by government attorneys before the grand jury.
Near the conclusion of the hearings on the motion to suppress
the fruits of the electronic surveillance, the question of Mr.
Sullivan's appearance in this case first arose. We were advised
that Mr. Sullivan intended to appear in behalf of defendant
Dorfman on or after May 1, 1982, i.e., one year after his
departure from office. See 18 U.S.C. § 207(c). We requested
counsel for Dorfman, all of whom are partners in or associates of
Jenner & Block, to present Mr. Dorfman's motion for permission
for Mr. Sullivan to appear as additional defense counsel at the
The extensive correspondence among Messrs. Joslin, Sullivan,
Tyson, McWhorter, Jones and Ms. Sposato does not resolve the
issue before us. At no point was Mr. Sullivan's contemplated
appearance in this action discussed, intimated or alluded to.
Arguably Mr. Joslin's April 21, 1981 observation that "Mr.
Sullivan is disqualified from all of the matters and cases listed
in the attached list" and Mr. Sullivan's own July 7, 1981
limitation of his activities in this case to "consulting about or
sharing in fees" could be regarded as preclusive. But the
government does not urge that position and we choose not to adopt
it on our own motion.
What the government does urge is that Mr. Sullivan's public
appearance in this case in behalf of defendant Dorfman will
contribute markedly to the public's impression that public
service is but a vehicle to enhance private gain and that a
"revolving door" exists between the private bar and government
service through which the private practitioner enters upon
government service only to emerge a short time later to represent
those whom he or she regulated, investigated or prosecuted during
their term of public office. It is this public impression and its
consequent erosion of public confidence in government which, the
government urges, motivated the Congress to pass and the
President to approve, the Ethics in Government Act of 1978. It is
the Act, in 18 U.S.C. § 207(b), and Canon 9 of the Code of
Professional Responsibility which the government asserts
precludes Mr. Sullivan's appearance in this action.
Section 207 contains a three tiered restriction on post
government service activity. Section 207(c) is the simplest and
most direct — it prohibits a former government officer or
employee, including of course, a former United States Attorney,
from having any direct contact with the agency by which the
person was employed for one year after termination of service.
All agree that Mr. Sullivan was bound by this prohibition and
that he honored it.
18 U.S.C. § 207(a) is also straight forward. It permanently
prohibits a former government officer or employee from knowingly
acting as attorney for any person, other than the United States,
in any matter in which the officer "participated personally and
substantially" while holding office. Mr. Sullivan's appearance
here would not fall within the proscriptions of § 207(a), for it
is agreed that he did not participate personally or substantially
in any way in any of the activities of his office which led up to
the instant indictment.
It is § 207(b) of Title 18 which the government asserts
precludes Mr. Sullivan's participation in this matter. That
section prohibits a former officer or employee of the government,
for a period of two years after his employment has ceased, from
knowingly acting as an attorney for any person, other than the
United States, in any matter "which was actually pending under
his official responsibility as an officer . . . within a period
of one year prior to the termination of such
responsibility . . ."
Section 202(b) of Title 18 defines the term "official
responsibility" as meaning "the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and either personally or
through subordinates, to approve, disapprove, or otherwise direct
But for Mr. Sullivan's recusal from all matters involving
defendant Dorfman and the Fund, and his particular recusal in
this matter on March 17, 1980, it is clear that § 207(b) would
prohibit his participation in this matter. Obviously the
investigation leading to the instant indictment was "actually
pending under his official responsibility" within the year prior
to his resignation from the office of United States Attorney.
And, this is so even though the prosecution was being conducted
by the Strike Force of the Department of Justice rather than the
office of the United States Attorney for this District. In the
first place, as United States Attorney Mr. Sullivan had the legal
responsibility for the prosecution of all federal offenses within
the Northern District of Illinois. 28 U.S.C. § 547(a) (1976).
While investigation of organized crime matters falls within the
primary responsibility of the Organized Crime and Racketeering
Section of the Department of Justice, once a decision to
prosecute is tentatively reached, the United States Attorney
becomes the responsible official. As chief prosecuting official
of the United States in each judicial district, he has full
authority over the judicial phases of all cases, unless
specifically overruled or removed by an Assistant Attorney
General. The United States Attorneys' Manual requires United
States Attorneys to be "kept fully advised of organized crime
developments within their districts. When a specific
investigation has progressed to the point where there is to be a
presentation for an indictment or any court proceeding, the Chief
of the Strike Force shall then for this purpose operate under the
direction of the United States Attorney who shall oversee the
judicial phase of the development of the case. The matter shall
be handled by an attorney or attorneys designated by the United
States Attorney, at least one of whom shall be a Strike Force
Attorney." United States Department of Justice, United States
Attorneys' Manual, tit. 9, § 9-1.174 (1981).
Accordingly, in the language of § 202(b), the proceedings
underlying the instant prosecution fell under Mr. Sullivan's
"direct administrative or operating authority, whether
intermediate or final, and either exercisable alone or with
others," from its inception prior to January, 1979, through his
resignation on April 30, 1981.
But defendant Dorfman argues that Mr. Sullivan's recusal from
all Dorfman and Fund matters and his particular recusal on March
17, 1980 from the instant matter removed this case from the scope
of Mr. Sullivan's official responsibility no later than March 17,
1980, which was more than one year prior to his resignation from
office. This, coupled with the fact that he concededly did not
participate "personally and substantially" in the matter exempts
him, argues Dorfman, from the strictures of § 207(b).
The government responds that Mr. Sullivan's recusal does not
relieve him of the prohibitions of § 207(b) relying upon certain
regulations promulgated by the Director of the Office of
Government Ethics with the approval of the Attorney General which
undertake to define the scope of § 207(b).
5 C.F.R. § 737.7 (1982) (effective April 3, 1979, 44 Fed.Reg.
19,974 (1979)) is concerned with the two year restriction on
former government officers acting as an attorney in a particular
matter for which the officer had official responsibility during
his or her term in office. Subsection (b)(5) of the regulations
A former [officer] cannot avoid the restrictions of
this section . . . by self-disqualification with
respect to a matter for which he or she otherwise
had official responsibility. However,
self-disqualification is effective to eliminate the
restriction of § 207(a) [i.e. the absolute
prohibition against participation in any matter in
respect to which the officer "participated personally
The government urges that while subsection (b)(5) permits
recusal from personal or substantial participation in a
particular matter, thus freeing the former United States Attorney
from the lifetime post-government representation prohibition of
18 U.S.C. § 207(a), the regulation makes
clear that recusal does not permit avoidance of the two year
prohibition of § 207(b) in respect to those matters which were
actually pending under the official responsibility of the
particular officer during his or her last year in office.
Therefore, despite his recusal, this matter was actually pending
under Mr. Sullivan's official responsibility during the year
preceding his resignation from office.
For his part, defendant Dorfman relies upon a regulation of the
Department of Justice found in 28 C.F.R. § 0.131 (1981)
(effective July 25, 1979, 44 Fed.Reg. 43,468 (1979)) which
Each U.S. Attorney is authorized to designate any
Assistant U.S. Attorney in his office to perform the
functions and duties of the U.S. Attorney during his
absence from office, or with respect to any matter
from which he has recused himself, and to sign all
necessary documents and papers, including
indictments, as Acting U.S. Attorney while performing
such functions and duties.
Dorfman urges that this authorization to United States Attorneys
to recuse themselves from pending matters should take precedence
over the general language of 5 C.F.R. § 737.7(b)(5).
The two regulations are not in conflict. The Justice Department
regulation upon which Dorfman relies merely recognizes the
procedure a United States Attorney should follow either during
his absence from office or with respect to a matter from which he
should recuse himself. It does not speak to the consequences of
the recusal. As Mr. Sullivan observed before taking office, when
a lawyer enters government service from private practice it is
reasonable to assume that matters will arise in the public office
involving former clients from which the public lawyer should
recuse him or herself. 28 C.F.R. § 0.131 (1981) recognizes this
reality and establishes the procedure by which it can be served.
On the other hand, the regulation promulgated by the Director
of the Office of Government Ethics upon which the Government
relies, which was approved by the Attorney General, deals with
the consequence of recusal in light of the proscriptions
contained in 18 U.S.C. § 207(b). The Ethics in Government Act of
1978 makes no mention of recusal. However, the dichotomy between
personal and substantial participation (§ 207(a)) and official
responsibility (§ 207(c)) implicitly recognizes degrees of
involvement during government service. 5 C.F.R. § 737.7(b)(5)
accommodates the dichotomy.
But Dorfman urges that if this be so, 5 C.F.R. § 737.7(b)(5) is
inconsistent with the § 202(b) definition of "official
responsibility". In essence he argues that when Mr. Sullivan
recused himself from this matter no later than March 17, 1980, he
divested himself of "the administrative or operating
authority, . . . either exercisable alone or with others, and
either personally or through subordinates, to approve,
disapprove, or otherwise direct government action" with respect
to this matter.
Recusal by an office holder from a matter does not remove the
matter from the scope of the authority of the office. Recusal
prevents the personal judgment of the office holder from being
brought to bear on the matter. It recognizes that try as we may,
as humans we cannot be certain that we have excluded personal
considerations from our official action unless we refrain from
participating in the official action. But the matter and the
action it demands remains pending before the office and subject
to its official responsibility. Indeed, the act of recusal
recognizes that continuing responsibility.
In light of Mr. Sullivan's announced position prior to taking
the office and his consistent recusal from matters involving
Allen M. Dorfman and the Fund, we do not perceive any
manipulation on his part in this matter. But, were we to accept
defendant Dorfman's position, government officers, including
United States Attorneys and their assistants, during the last
year of their term of office, could selectively recuse themselves
from particular matters actually pending under their official
responsibility enabling them to participate directly in
those matters a year hence. That was not the intent of the
Congress when it adopted § 207(b) as a part of the Ethics in
Government Act of 1978.
18 U.S.C. § 207, like other conflict of interest
statutes, seeks to avoid even the appearance of a
public office being used for personal or private
gain. In striving for public confidence in the
integrity of government, it is imperative to remember
that what appears to be true is often as important as
what is true. Thus government in its dealings must
make every reasonable effort to avoid even the
appearance of conflict of interest. . . .
Sen.Rep.No.170, 95th Cong., 2d sess. 32 (1977), reprinted in 1978
U.S.Code Cong. & Ad.News, 4216 at 4248.
18 U.S.C. § 207(b), is a criminal statute. Mr. Sullivan has
committed no act which would violate the statute and we cannot
render an advisory opinion as to whether his representation of
defendant Dorfman in this action would constitute a violation of
the Act. We can, however, prohibit his appearance in the action
if it would violate the Code of Professional Responsibility.
Canon 1 of the Code provides "A lawyer should assist in
maintaining the integrity and competence of the legal
profession." Disciplinary Rule 1-102(A)(3) and (5) provides, "a
lawyer shall not: . . . (3) engage in illegal conduct involving
moral turpitude, . . . (5) engage in conduct that is prejudicial
to the administration of justice." This disciplinary rule
encompasses § 207(b), because the statute defines conduct which
is illegal and prejudicial to the administration of justice.
Therefore, violations of § 207(b) are prohibited by the
disciplinary rule and we must construe the statute in order to
determine whether Mr. Sullivan's appearance would be in violation
of the rule. We have concluded that it would be.
Canon 9 of the Code of Professional Responsibility provides, "A
lawyer should avoid even the appearance of professional
impropriety." Mr. Sullivan's appearance in behalf of defendant
Dorfman in this case would violate this canon.
The public records and files of this court now disclose that
the preindictment investigation in this case commenced no later
than January, 1979, in the middle of Mr. Sullivan's second year
in office, and continued through the balance of his term in
office. Proceedings actually brought in this court were presented
in his name, albeit inadvertently. The defendants, including
Dorfman, have launched an all-out attack upon the sufficiency of
the applications presented to Chief Judge Parsons in Mr.
Sullivan's name and during his term of office and the honesty of
agents of the Federal Bureau of Investigation and Strike Force
Attorneys in the representations which they made to Chief Judge
Parsons. While those attacks have been rejected, they have not
been withdrawn and will remain a part of this action until its
conclusion. Thus, if Mr. Sullivan appears in this case on behalf
of Dorfman, he must adopt the position of his partners and
co-counsel that significant misconduct was engaged in by his
colleagues during his term in office as United States Attorney.
When the Code of Professional Responsibility speaks of the
"appearance of professional impropriety," it speaks of the
public's impression of the profession and the conduct of its
members. This is evident from the language of the ethical
considerations which accompany Canon 9 which speak of the
promotion of "public confidence in our system and in the legal
profession." They recognize that "public confidence in law and
lawyers may be eroded by irresponsible or improper conduct of a
lawyer." While we do not profess the ability to divine the
public's reaction to Mr. Sullivan now appearing in behalf of a
person who has been accused of a crime as a result of an
investigation which was actually pending under his official
responsibility while he was in office, we are confident that such
a turn of events would not promote public confidence in the law
and lawyers and would, in all likelihood, erode that confidence.
Defendant Dorfman urges that the refusal to permit Mr.
Sullivan's appearance in this case should not be based upon Canon
9 alone. As we have observed in another
setting, disqualification of a lawyer for the appearance of
impropriety is normally coupled with evidence of the likelihood
of actual wrongdoing under one of the disciplinary rules.
Westinghouse Electric Corp. v. Rio Algom Ltd., et al, 448 F. Supp. 1284,
1304 (N.D.Ill. 1978) rev'd on other grounds, 588 F.2d 221
(7th Cir. 1979). But, our earlier conclusions regarding § 207(b)
and Disciplinary Rule 1-102, meet that test. Thus we conclude
that here "there is a reasonable possibility of improper
professional conduct" and "the likelihood of public suspicion or
obloquy [which] outweighs the social interests which will be
served" by Mr. Sullivan's appearance in this case. Woods v.
Covington County Bank, 537 F.2d 804, 813 n. 12 (5th Cir. 1976).
Nor are we insensitive to defendant Dorfman's sixth amendment
right to the effective assistance of counsel and its counsel of
choice elements. See United States v. Seale, 461 F.2d 345, 358-61
(7th Cir. 1972); see also, Slappy v. Morris, 649 F.2d 718, 720-21
(9th Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 1748, 72
L.Ed.2d 160 (1982). The record discloses, however, that to date
Mr. Dorfman has been ably represented by Albert E. Jenner, Jr.,
Esq., John C. Tucker, Esq. and Michael J. Rovell, Esq., all
partners in Jenner & Block, plus three or four associates of that
firm. That representation has been of the highest caliber. We are
confident that our ruling today does not deprive the defendant
Dorfman of the effective assistance of counsel and that the
public interest in preserving the integrity and the appearance of
propriety in the trial bar of this court outweighs Mr. Dorfman's
desires to have an additional lawyer represent him in this case.
The motion of defendant Allen M. Dorfman to permit Thomas P.
Sullivan, Esq. to appear as additional counsel in this case is