Application of Conflict of Interest Rules to the Conduct of Government Litigation by Private Attorneys

Headnotes: 

Whether the American Bar Association’s Code of Professional Responsibility would bar private attorneys, retained as contractors to represent the interests of the United States in railroad litigation, from simultaneously representing other parties whose interests are adverse to those of the United States, depends on the facts of each situation.

Ethical constraints on private attorneys retained to conduct railroad litigation on behalf of the United States do not end with the termination of the railroad litigation itself.

The making of litigation judgments is a function at the core of the President’s Article II duty to take ca re that the laws be faithfully executed, and must, therefore, be performed by those who serve under, and are responsible ultimately to, the President.

The scope of ethical restraints on private attorneys retained by the United States depends upon extent of necessary interaction with and supervision by government officials; if close interaction and supervision can be anticipated, likelihood of ethical problems developing increases.

Appendix identifies and discusses issues under the conflict of interest laws applicable to the temporary appointment of an attorney in private practice as a government attorney.

Updated July 9, 2014