Saturday, May 9, 2009

Main Justice confirms: DOJ recusal period is 2 years

Mary Jacoby at Main Justice provides a useful correction to misinformation being spread about the recusal obligations of Justice Department appointees who previously represented clients in private practice -- and especially clients in the music industry.

Techdirt had reported May 1 that recusal obligations last only 1 year, citing a letter from Lee Lofthus, an assistant attorney general and DOJ's designated ethics official. Lofthus' letter, in turn, cites 5 CFR § 2635.502 -- which pre-dates the Obama Administration.

But Lofthus' letter did not discuss the Obama Administration's own ethics policy, which was promulgated by executive order on January 21, 2009. That executive order (which Techdirt did not mention) provides that all appointees must undertake the following pledge upon entering government service:
I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
(my emphasis). And Main Justice followed up to confirm that the recusal period for DOJ appointees is indeed 2 years:

Justice Department spokesman Matt Miller told Main Justice that the Loftus letter was boilerplate language that hadn’t been updated for the new policy. Miller assured us that the White House ethics policy supercedes traditional ethics guidelines in place at agencies. In short: The two-year ban applies to [associate attorney general Tom] Perrelli and other former intellectual property lawyers who recently joined the Obama DOJ, Miller said.

Miller also said Perrelli had not requested any exemptions from the ban.

It's worth repeating that it is extremely common for DOJ appointees to have previously represented clients from a variety of industries, and there is absolutely no evidence that Perrelli or other Obama DOJ appointees who previously represented record labels and the RIAA are doing anything other than following the relevant ethics rules to the letter.

1 comment:

  1. I'm not sure what the big deal is. Model Rule 1.11(d)(2)(i) states that:

    "Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee ... shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing."

    Dealing with the first part, "except as law may otherwise permit," it's pretty clear that 5 CFR 2635.502 authorizes participation after a thorough review of the circumstances when the agency concludes that there would be no air of impropriety to allow the attorney's inclusion in the case.

    As for the model rule itself, it clearly only allows participation of a potentially conflicted current government attorney only after the agency itself authorizes it in writing, which goes hand-in-hand with the CFR.

    Finally, 1.11(d)(1) still requires the government attorney to abide by rules 1.7 and 1.9 for current and former clients, respectively. So if a former industry attorney was required to take a position adverse to their former client in a litigation, he or she would still be under a professional duty to decline representation.

    Finally, the DoJ would only be pursuing criminal infringement cases anyway, which seems to undercut much of the uninformed internet outrage over the issue. Even if these former industry attorneys were the authors of the brief intervening on statutory damages, it still likely wouldn't qualify as a "matter" in which they had previously personally and substantially participated.

    From what I've seen, the claims of unprofessionalism and bias and unethical behavior that originate in places like "RIAA vs the People" seem completely unfounded both under the facts and the relevant rules.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.