The greatest victory the speech or debate clause has achieved is in McSurely v. McClellan, which adopted the position that was taken by lawyers in my division, including the gentleman seated to my left. Mr. Goldbloom.1

Mr. JAFFE. That conflict of which you speak arises only in one sense. That is when the executive branch is pitted against it. And that happens very rarely. In no other instance where private parties are involved is there any possibility of conflict between them and the Justice Department. Except where an executive branch official is involved in the same context, or the same manner, is there a conflict? And that happens with such rarity, I do not think that it requires the broad statement that we are in an institutional conflict position. Mr. LUDLAM. Are you saying that to have conflict you must have a close proximity in time between two cases, and also have a close proximity in the courts in which the two cases are pending?

Mr. LEE. As you, of course, know, a determination of whether you have a conflict in any given case is a subjective judgment. It is the kind of thing a lawyer has to make in consulting his conscience and determining many kinds of factors.

The factors you have mentioned are among those that enter into them. In particular instances, I might or might not have made the judgment the same way, but they have to be made by conscientious lawyers exercising their professional responsibility on a case to case basis.

Mr. LUDLAM. Can you, in addition to proximity in time and geographic proximity, could you name any other factors which would bear on the question of whether there was a conflict?

Mr. LEE. Each case really has to be examined on proximity in time and geographic proximity. The most important question is, are you taking a position in one case that will be at odds, or that may be at odds, or may develop down the road the possibility of being at odds with the position you are taking in another case.

Originally we used to talk about it in terms of a number of rather specific canons, and we do not do that any more. There are a limited number-7 or 8-very broad canons, and No. 5 that deals with this area of conflicts and others is a signal canon, but with a lot of different considerations. And in each case you have to look at all of those.

[Supplemental question and answer follows:]

Question. In footnote 19 of canon 5, the Code of Professional Responsibility cites a definition of "conflicting interest." That definition states that "a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose." Does the Department accept that definition?

A. In footnote 29 of canon 5, the Code of Professional Responsibility says that "the relations of partners in a law firm are such that neither the firm nor any member or associate thereof may accept any professional employment which any member of the firm cannot properly accept." In terms of ethical considerations, is the Justice Department like a large law firm?

B. Has the Department ever defended a Member of Congress at the same time that the Department was defending a court action brought by the same

1 The U.S. Court of Appeals has since ordered a rehearing en banc of the October 28, 1975, decision of Judes Wilkey, Levinthal, and Dahaher.

Member against the executive branch? If so, the Code of Professional Responsibility cites a case in footnote 2 under canon 5 which states that "a (law) firm may not accept any action against a person whom they are presently representing even though there is no relationship between the two cases.' Does this rule raise any ethical problems to the Department's representing a Member of Congress while defending the Government against an action brought by the same Member?

C. Has or will your Department ever represent a judge in an action when the United States then has pending before the same judge any other litigation? If so, would you explain whether the Department's serving as defense counsel for a judge in one case involves any canons of ethics considerations in terms of influencing the same judge's handling of other cases in which the United States is a party?

D. Could you describe the role played by the Department and the Solicitor General in resolving conflicting legal positions within the executive branch?

Answer. This question relates to a variety of special problems that the Justice Department faces in representing Government officials. Certainly there are many cases in which the Department defends a Government official in a particular litigation and finds itself on the opposite side of that Government official in another litigation on a different topic. For example, the Department has defended former Attorney General John Mitchell in a civil litigation at the same time as it prosecuted him for unrelated criminal offenses. The same problems may arise in our representation of members of the judiciary. In all these situations where Justice Department lawyers face potential conflicts, each lawyer including the Solicitor General takes appropriate action to resolve any conflicts which may arise based on the application of the canons of ethics to the particular facts of each case.

There are certain analogies between the Justice Department and a large law firm. It is because of conflicts or potential conflicts among cases handled by Justice Department lawyers that we have found it necessary on occasion to employ outside counsel.

Mr. LUDLAM. And in Miss Lawton's letter, which was introduced into the record,' she states that when the Department undertakes the representation of a congressional client, it insists on retaining control of the litigation and making litigation decisions in the case. I would like to ask you a few questions about this policy.

[Supplemental question and answer follows:]

Question. To what extent does the Department's assertion of control over the litigation decisions in congressional cases derive from 28 U.S.C. 516-519? Please cite any legislative history of this statute indicating congressional intention that the Department exercise such control.

Answer. The Department's assertion of supervision and control of litigation in which the interests of the United States are involved does derive from 28 U.S.C. Sections 516 to 519 and from 5 U.S.C. 3106 28 U.S.C. 517 does not define the interests of the United States in terms of whether the parties to the litigation include or do not include a Federal public official or employee or a Member of Congress or a judge. The legislative history of the Department of Justice Act of 1870, 16 Stat. 164, reflects the intention of Congress to centralize the supervision and control of all the litigation and all the law business, in which the United States is interested, in the Attorney General. This was thought to be necessary in order to provide for uniform legal interpretations throughout the executive branch (see Congressional Globe, 41st Cong., 2d sess., pp. 3036, 3038, and 4490). There was no reference in the legislative history of the Department of Justice Act to cases in which Members of Congress were involved.

Miss Lawton's August 17, 1973, letter appears as exbibit 55 in the text at pages 28 to 34.

25 U.S.C. 3106 provides as follows:

$3106. Employment of attorneys; restrictions

Except as otherwise authorized by law, the head of an executive department or military department may not employ an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party, or is interested, or for the securing of evidence therefor, but shall refer the matter to the Department of Justice. This section does not apply to the employment and payment of counsel under section 1037 of title 10.

Mr. LUDLAM. Is the statutory authority for this assertion of control also found in sections 516 or 518, or the other statutes which we were talking about earlier?

Mr. LEE. I do not believe it is. Whether it is or not, that, in my opinion, Mr. Ludlam, follows inexorably from being a lawyer. That is no different. What Mary Lawton expressed in the letter is no different from what I insisted on during my years as a private practitioner, as I entered upon representation of

Mr. LUDLAM. Ethical consideration 7-7 in the Code of Professional Responsibility. It states "The authority to make decisions is exclusively that of the client and if made within the framework of the law, such decisions are binding on his lawyer."

Mr. LEE. Fine.

Mr. LUDLAM. How can the Justice Department justify its control of the litigation decisions in the light of that canon?

Mr. LEE. It says control of the litigation. The making of the underlying substantive decisions are, of course, for the client. As that ethical consideration says, that's different from control of the litigation. That is what we are talking about.

Mr. LUDLAM. Explain the distinction please.

Mr. LEE. I certainly cannot give you a categorical distinction, but it is essentially a distinction between strategy, tactics, procedure on the one hand, and on the other hand whether it is more in the client's interest to go to trial or accept a $10,000 settlement.

Mr. LUDLAM. Let me bring up an example, the case of Hentoff v. Ichord, which is a 1970 case. I would like you to correct my statement of the case, either as you know it or for the record.

Mr. LEE. I cannot, I assure you. I heard about it for the first time this morning.

Mr. LUDLAM. You can correct my statement for the record but let me present the factual situation. An individual sought an injunction against the issuance of a committee report from Congressman Ichord's committee. The Justice Department represented Congressman Ichord, and both the Justice Department and Ichord lost and an injunction was entered against the publication of the committee report.

Mr. LEE. This was an outside-the-halls-of-Congress kind of publication?

Mr. LUDHAM. I believe that is correct. Then the Justice Department on behalf of Congressman Ichord filed papers for an appeal of the injunction. Congressman Ichord decided, however, to seek passage in the House of the resolution which states, in effect, that if anyone seeks to enforce this injunction they will be held in contempt of Congress. This is, of course, a fairly unique approach to the existence of an injunction. Whether or not that is constitutional is not the question. Mr. LEE. I have some question in that regard.

Mr. LUDLAM. Perhaps. Congressman Ichord, as I understand it, then requested the Justice Department to withdraw the papers that had been filed in the appeal. There was some question about whether Justice would, in fact, respond to that directive of the client.

[Subsequent to the hearing the subcommittee submitted the following materials describing the Department's handling of the case: (a) a copy of H. Res. 1306, which contains the text of the Oct. 28, 1970,

opinion of Judge Gesell, 318 F. Supp. 1175 (D.D.C. 1970), appearing as exhibit 10 in the appendix at pages 302 to 308; (b) a copy of the appeals brief filed on behalf of Congressman Ichord which appears as exhibit 11 in the appendix at pages 309 to 347; (c) a copy of Congressman Ichord's Apr. 6, 1971, statement in the Congressional Record regarding withdrawing the appeal which appears as exhibit 12 in the appendix at page 348; (d) two exchanges of correspondence between Congressman Ichord and the Department regarding the question of withdrawal which appear as exhibit 13 in the appendix at pages 349 to 350. The House debate on H. Res. 1306 appears as 116 Cong. Rec. 41358-41374 (Dec. 14, 1970).]

Mr. LUDLAM. I am wondering whether the client has control of the litigation in that situation, a situation in which the Justice Department must respond to the direction of the client, if the client is to accomplish what he intends, or whether that falls into a category in which, according to Mrs. Lawton's letter, the Justice Department has control of the situation.

Mr. LEE. There is this difference. Our representation is a representation of United States, and you do have-my earlier statement may have been oversimplistic-you do have this overlay of the interests of the United States in taking an appeal, or in not taking an appeal. I really do not know.

If you like, I can amplify my remarks for the record. I have the same problem I had earlier in response to Professor Kurland. I am not familiar with this case, and it sounds like the kind of thing that I would not want to second-guess a lawyer on, but speaking in general, there is the possibility, as I stated in my opening statement, that we may determine that it is not in the interest of the United States to take an appeal. That is not a great problem however.

Mr. LUDLAM. The question is whether a congressional client can direct his department attorney to withdraw papers that have already been filed. If the department refuses, the papers remain filed.

Mr. LEE. I cannot speak to that because I am not familiar with the case.

Mr. LUDLAM. The principle is the important issue.

Mr. LEE. The principle, yes; I think the principle is important. I am glad you raised it. In my view the principle, Mr. Ludlam, is this, that if we reach a point at which the interests of the United States indicate no appeal and the interests of the individual indicate appeal, as we have been discussing for a couple of hours, my solution to that is a substitution of counsel at that point and the interests of the individual can be pursued by independent representation.

Senator ABOUREZK. What you are conceding, that the interests of the United States can easily differ from those of a person you originally started out to defend or represent.

Mr. LEE. Mr. Chairman, what I am conceding is this-and this is the thrust of my prepared statement, as well-that conflicts do exist. They can arise ab initio; they can arise in the course of the case as it progresses. A good example, parenthetically, is Doe v. McMillan, in which we did not perceive the conflict initially. It developed later. But those conflicts are rare. In light of their rarity and in light of the ready and effective availability of another alternative, which is outside representation by other than the Department of Justice, the

ideal solution, or preferred solution, in our view is the traditional one to continue the representation by outside counsel.

Senator ABOUREZK. Let me pose, let us just follow that up and pose a hypothetical case. If Justice is representing a Member of Congress and for some reason, which we do not need to know here, he decides he does not want to go any further with the case, and Justice thinks it is in the best interest of itself and the United States to continue the case. What good would it do this guy to hire his own counsel if all he wanted to do was terminate the proceedings. How does he then have any control over his department attorney?

to.

Mr. LEE. I think we would probably not pursue it if he elected not.

Senator ABOUREZK. But if you did decide to pursue it?

Mr. LEE. That would give me some real ethical problems, frankly. [Subsequent to the hearing the Justice Department submitted the following statement:]

As noted at the hearing, we are not aware of any instance in which the hypothetical has, in fact, occurred. The ethical concerns that Mr. Lee expressed represented his own personal views, arising out of his perceptions of the lawyer's obligations to his client. He was not expressing the views of the Department, nor could he, in the absence of an actual concrete case, as opposed to a hypothetical, which to our knowledge has not, and may never, arise.

Mr. JAFFE. May I try to answer that question?

I conceive of a difference when we have representational authorities or lawyering functions, if you will, when executive branch officers are involved and when congressional Members are involved. Basic to all our representation is that we are representing the United States and if we represent an individual, it is because there is an interest of the United States, which we think needs protection. We have never heretofore taken the view that our representation of a Congressman, as distinguished from an officer, was mandatory. It was permissive. A Congressman could or could not seek our representation. Even the officer must seek it; if he does not seek it, we do not give it under section 118. We represent an officer only when requested to do so.

We have taken the position in the past, at least, that if a Congressman does not request representation or wants to discontinue it at any time, or a judge, because they are not in the executive branch, they can do so. We might remain in the case as amicus if we wish to protect whatever interest of the United States we could perceive. If we had a situation where we thought the vital interests of the United States were involved and the Congressman wanted to discontinue the case and we thought that it was necessary for the interests of the United States to continue it, I think we would attempt to continue it.

[In answer to the subcommittee's request that the Justice Department "cite authority and procedure for Department continuing a congressional case if congressional clients declined to do so," the Department repeated its statement submitted immediately above.]

Mr. LUDLAM. So this is a case where control of the litigation in the context of the Justice Department is different than the control that an average attorney would have vis-a-vis average client.

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