*1 Phillip BROWN, al., Petitioners, et J.
v.
DISTRICT OF COLUMBIA BOARD OF ADJUSTMENT, Respondent.
ZONING Carr, George
Oliver T. Jr. &
Beuchert, Intervenors.
No. 13670. Appeals.
District of Court of Columbia
Argued En March Banc
Decided Dec. *2 D.C., Addams, Washington,
Nicholas A. *3 petitioners. for Reischel, Deputy Corp. Charles L. Coun- sel, D.C., Washington, whom with Judith Counsel, Rogers, Corp. W. Washington, D.C., petition rehearing at the time the for filed, Barton, en Dep- banc was W. Richard Counsel, uty Corporation Washington, D.C., petition time for review filed, Gorman, was Corp. and Leo N. Asst. Counsel, D.C., Washington, appear- entered ances, respondent. for Quin, Whayne Washington, D.C., S. whom Glasgow, Norman M. Washington, D.C., brief, was on for intervenors. McAvoy, Washington, D.C., John J. behalf Legal of the Ethics Committee of Bar, appointed by District of Columbia this court as amicus curiae.* PRYOR, Judge, Before Chief NEBEK ER, MACK, NEWMAN, FERREN, BEL- SON, TERRY, Judges, and Associate GALLAGHER, KERN** and Associate Judges, Retired.
FERREN,
Judge:
Associate
presents
This case
question
attorneys
two former
for
District
9-101(B) by accept-
Columbia
DR
violated
ing private employment
“matter”
responsibility
had substantial
government.
while in
We hold that
application
transaction —an
Zoning
(BZA)
Adjustment
Board of
special exception
permit
additional off-
as,
street
not the same
or sub-
—is
to,
stantially
at-
matter these
express
appreciation
*We
wish
our
to Mr.
trict of
Bar
Columbia
or its Board of Gover-
McAvoy
Legal
and the members of the
Ethics
nors.”
Committee of the District of
Bar
Columbia
**
participating
According
as amicus curiae.
Judge
Judge
KERN
an Associate
amicus,
solely
"this brief reflects
collective
argument.
court at the time of
His status
views of the members of the Committee on
Retired,
changed
Judge,
May
to Associate
Legal Ethics and should not be construed as
reflecting
representing
views
Dis-
grounds,
challenging, on Fifth Amendment
for the District. We af-
torneys handled
proper-
on the
ruling
the 60-foot
limitation
BZA
that these
firm the unanimous
general
ty,
90-foot
in contrast with the
attorneys, as well as intervenors’
individual
rest
height limitation in the
zone.
Artis,
firm,
disquali-
Wilkes &
are not
law
litigation,
for the District
Carr’s
defended
from this case.1
fied
successful;
Mitchell,
it increased
prop-
floor-area ratio for Carr’s
the usable
I.
approximately 4.5
6.0 and thus
erty from
Board
Brown v. District Columbia
space.
rentable
increased the allowable
42 (D.C.1982), that, concerned, implicitly primarily, un- we concluded about a 9-101(B), der 6 DR matters will be deemed violation Canon ABA Canons of (restated substantially one 4 related to Professional Ethics as Canon useful, Responsibili- preliminarily, another.4 It to re- the ABA of Professional Code why ty), enjoining lawyers preserve it view test and how client evolved generally applies. confidences and avoid conflicts of interest. therefore, question, The was whether coun-
A.
informa-
sel
have received confidential
be
“substantially
tion from the former client
could
The
test
related”
against
subsequent
represen-
originated
litigation
private par
used
it
between
Corp.
v.
Broth
T.C. Theatre
Warner
F.Supp.
113
268-69. The court
ties.
tation.
at
rule;
Pictures, Inc.,
ers
(S.D.N.Y.1953),
F.Supp.
following
announced the
“Where
'd,
Cir.1954).
(2d
relationship can
shown be-
43 considering side-switching Courts purpose from stressed that the Canon 36 “was private one client another to have consist clarify to in Canon the duties 6 as related E.g., ently followed formulation. 361, id. at government attorneys,” to with Smith, (9th Trone v. 621 F.2d 998 preventing appearance a view to “even the Cir.1980); Government India v. Cook take a servant Industries, Inc., (2d 569 F.2d 739-40 hope being certain stand of later Cir.1978). course, question us, The employed upset or what privately uphold to side-switching applies how this case law (footnote omit- Id. at 359 he had done.” “revolving door” context —in our ted). government attorney case a who leaves to recognizing preventive pur- While join private begins represent firm and pose, Oil imported court into Standard against, of, agency clients or before an “substantially Canon 36 the same related” government employer. gener former See ” side-switching test private used to evaluate Door, ally “Revolving (D.C. A.2d preventing and thus focus 1982) (en banc).6 Id. at misuse of confidential information. Corp.). T.C. (citing Theatre 353-55 B. expressly recognized court “it is doubtful significant The first case to consider a Canons Ethics are intended to dis- revolving disqualification door was United qualify attorney actually an who did not States v. Company, Standard Oil come into contact with materials substan- (S.D.N.Y.1955) F.Supp. (Kaufman, J.). tially controversy at hand only The court not invoked old Canons 6 acting when attorney he was for- (avoiding and 37 conflicts of interest and mer position.” client now adverse to his preserving confidences) client ap- also but Id. added, however, plied revolving door rule of old Canon “complainant only access need show lawyer, having 36: “A public once held substantially related material and such having office been in the employ, should not after inference defendant received these accept his retirement em- (em- follow.” Id. at 354 ployment will connection confidences matter omitted); investigated phasis original) (footnote see passed upon he has supra Moreover, while in such employ.” office or The court note 5.7 “where there substantially joins attorney two keep, related matters later a on, former or take represent a law firm that seeks adverse properly such a matter if that matter, party second court will participating sharing screened fees in presence determine whether the of the new at Hospital, it. 445 at 617. Sierra A.2d See Vista torney requires disqualification at the firm States, Inc. v. United 226 Ct.Cl. 639 F.2d Again, the entire firm. in this side- (1981) (upheld denial of motion *7 switching adopted context have a courts rebut- disqualify government law firm where former presumption knowledge table that is shared firm, attorney disqualified, at himself was en- among require firm members. Courts therefore case); tirely participation screened from in disqualification of the entire firm absent a 433, (2d Armstrong McAlpin, F.2d v. 625 445 partner showing that the new or associate has Cir.1980) banc) (same), (en vacated other effectively participation been screened from in 1106, 911, grounds, U.S. S.Ct. 66 449 101 L.Ed.2d the second matter. See LaSalle National Bank (1981) (disqualification appeala- 835 motion not Lake, 252, County (7th v. F.2d 703 257-59 1291); of ble under U.S.C. Unit- § 28 Kesselhaut v. Cir.1983); Peterson, generally see Rebuttable 791, States, 124, ed 214 Ct.Cl. 555 F.2d 793 Screening, Presumptions and Intra-Firm 59 No (1977) (same). (1984). tre Dame L.Rev. 399 adopted per- 9-101(B), 7. The “rule" "Revolving adopted in Standard Oil thus In we Door" DR 1, complainant mits a supra precluding private employment use of two inferenc- see note make seeking disqualify government es respect a former "matter” which attor- First, attorney. showing ney "participated personally substantially” F.Supp. 136 at 354. and, government; relationship of response while related, "a substantial between the sub- ject "imputed disqualification” problem, matter of a we law and the matters suit 9-102, adopted permitting attorney DR represented a firm hires which the his former 44 government variety question particular of close as to whether in a ways of “their with an
confidences the former client will be will conduct offices case, attorney eye private employment,” pertinent to the an toward future instant disqualified prospective firms appear- should be to avoid law Ostrer, v. States Id. United clients. actuality ance if not of evil.” at 597 F.2d v. 337, Cir.1979); accord Woods (2d 340 Covington County Bank, 804, F.2d 537 Revolving under door cases Canon 9 of Corpo- General Motors (5th Cir.1976); 814 Responsibili- ABA Code Professional York, City New 639, ration v. F.2d 501 ty (Avoiding Appearance Im- Even the Comm, Cir.1974); see (2d 650 n. ABA 20 propriety) have continued to reflect Ethics, (1931) Opinion No. 37 Professional Standard Oil court’s emphasis on preserv- (former ABA 36 to deter Canon intended Kg., Board of confidentiality. client government lawyers being influenced Education v. Nyquist, 1241, 590 F.2d 1246 “by hope being employed pri- of later Cir.1979); see Committee (2d Wash- vately uphold upset either or to what Parks, 451 ington’s at A.2d Riverfront Oil, Standard done”).9 [they] In had how- 1191, 1188, 1192.8 ever, the court did address these other in order to concerns determine whether C. “substantially related” test was sufficient- however, Revolving cases, also ad- door ly responsive. so We do here. concerns dress in addition confidentiali- Oil Standard turn to concern ty. As the itself rec- We therefore a second 359, door, revolving arising from the ognized, F.Supp. 136 from the protected against possibility government attorneys fact that often must be sides, changes gives arise is addressed client” to "an inference that confiden- when counsel rise Second, reposed.” Id. 4 Confidences [Preservation tial information was Canon [Avoiding complainant challenged that the at- shows and not Canon 9 Client] Secrets of torney’s government position provided access to Appearance Impropriety].” General Even the substantially York, related to City materials representation, the second Corporation 501 v. New Motors attorney Nonetheless, han- 639, (2d Cir.1974). even if the did not 20 F.2d 650 n. the court infer dle the will commonly canons courts consider both ethical actually gained attorney personal together, e.g., Nyquist, 590 Board Education v. Id.; knowledge of confidential information. see (2d Cir.1979); Westinghouse F.2d 1246 Kaufman, generally Former At- Government Corp. Corp., Oil F.2d Electric v. Gulf Ethics, torney Canons (7th Cir.1978); Organization Professional Ltd. v. NCK (1957). Cir.1976). Harv.L.Rev. (2d Bregman, 542 F.2d 9-101(B), cases, DR the focus of the substan- gloss Under concern these the Canon 9 —the relationship solely relationship tial on the test appearance impropriety about even —is subject representa- matter of each between significant typical reinforcement of the court’s attorney’s issue. tion at relationship Consideration that, disqualification does view under Canon to the earlier matter— upon proof depend of an actual breach i.e., attorney’s potential access to useful confidentiality. supra See note 5. government-developed information —is relevant 9-101(B) inquiry separate DR into wheth- side-switching considering 9. At one court least er the earlier matter was one which the expressed has from one client another personally “participated and substan- a similar concern: (or, tially” rule, pre-1982 under the version lawyer ex- and the client should Both the responsibility”). "had Because substantial skill, pect lawyer every ex- that the will use conclude there is no substantial rela- pend every energy, every legitimate tap *8 tionship subject matters each of between the of pro- independent in the exercise of resource (and representations issue the three at here judgment on fessional behalf of the client re- hence no inference of useful information undertaking representation the client’s ceived), we address the need not “substantial professional That commitment is not behalf. responsibility” issue in this case. furthered, endangered, possibility but if the noted, however, lawyer change will later specifically exists that sides has 8. One substantially ‘side-switching,’ question in a related matter. and of the that "the Smith, (9th Cir.1980). 621 F.2d Troné v. 998 conflict of interest which almost certain
45
generally
government
possibility
access to information that is
is a
real
—there
sector,
private
government
available to the
even that
counsel could channel
through
access,
discovery. They have
government
primarily
resources into cases
grand
example,
proceedings
jury
eventual,
employment,
suited to
lucrative
Woods,
classified documents.
F.2d
537
at
clearly
rather
into
than
cases more
They
position
also are often in a
Compare
interest.
Motors
General
who,
obtain statements from
but
witnesses
(former
Corp.,
Department
47 relationship government increasingly specialized, udicial between a particularly in this government transaction and a former attor- jurisdiction many where administrative ney’s client, later private work for a agencies headquartered, are we believe the attorney’s government reputation, exper- likely consequence of ap- such a wholesale tise, should, for sake contacts of proach disqualification to would be encour- appearances, kept private be from the new agement government of a law- two-track— Legal client. As the Ethics Committee of yer, private lawyer professional struc- — recognized, however, the Bar supra has see suspicion ture. would eliminate the We 11, language note neither of DR 9- reality un- improprieties of ethical 101(B) history nor purpose its indicates a government cases, particular related to but substantially define related matters broad- insular, only at creating the cost of ly enough require disqualification solely permanent legal bureaucracy. gener- See unseemly appearances.13 the basis of Developments ally in the Law: Conflicts dispute government oneNo can ser- Interest, 1244, 94 Harv.L.Rev. 1428-30 of lawyers vice affords opportunity to im- (1981). pervasive such We believe ban— potential press employers, legiti- through far one-year more severe than the limit illegitimate or mate means. The of nature § 207(c) under many deter too ca- —would government brings job into pable attorneys government entering from private practitioners contact with service, public. to the detriment of the See exper- clients interested their fields of supra note 12. reality provide If this tise. alone could perpetual disqualification basis under sum, many despite legitimate effect, 9-101(B) as, in during DR it does — revolving door, only concerns about the § one-year 207(c) ban under of the Eth- three improprieties are addressed DR 1978, ics in Government supra, Act 9-101(B). lawyer: (1) may disclose would, example, —then we deter Feder- prejudice confidential information to the al lawyers Communications Commission government client; (2) may use infor leaving government from practice, through mation obtained the exercise join specializing in, firms communications government power prejudice op law. We would deter Public Service Com- (3) posing private litigants; and while leaving lawyers government mission from government, initiated, practice in the utilities so struc field—and on. practice becoming tured, Because the of law neglected hope matter in the recognized Although "appearances” may 13. Other commentators have be relevant to 9-101(B) 9-101(B) potential ap- DR "fails to address some decision under DR those —where revolving pearances information," possible Developments abuses” of the door. arise from "the use of insider Law, I, supra note at 1437. Brown 413 A.2d 1283 HarvX.Rev. (D.C.1980) 9-101(B) should —DR Although 9-101(B) [DR avoids actual abuse ] beyond stretched its stated limits in an effort itself, authority something in the matter remedy appearances impropriety that exist guard against problems further is needed to irrespective of whether the former part of favoritism and undue influence on the previous in a involved related mat- high-ranking agency of former officials. O’Toole, generally ter. See Canon 9 the Code ****** Responsibility: An Elusive Ethi- of Professional revolving Concerns about the door re- Guideline, 313, 326-33, cal Marq.L.Rev. 342- late more to undue influence and favoritism (1979) (describing approach "moderate” specialized knowledge than to misuse of 9). attorney disqualification Any under Canon by temporarily expanding disquali- addressed 9-101(B) attempt to use DR to address concerns prohibit high-ranking agency fication to offi- beyond plain scope language that are contacting agencies from cials their former only heighten suspicions of the rule will serve [i.e. § 18 U.S.C. well as similar system, integrity about the rather statutes, prescribing “cooling mandatory state Woods, than bolster See confidence. periods off' attor- former ("An overly application F.2d at 813 broad neys]. ultimately Canon ing.”). ...9 be self-defeat- 1439; Id. see id. at 1435-39. gain private view to using the same or a gain. supra *11 later for See is much concern not so matter —the note 10. private attorney’s eventual conduct the is, rather, private con- that the practice; it D. integrity of the doubt on the duct casts Woods, public service. attorney’s earlier then, revolving is question, however, again, at 814. Once 537 F.2d 9-101(B), reflecting two rule DR door attorney find that the could a court unless protection client to cerns addition relevant acquired information might have interpreted to confidentiality, should during the private action to the eventual attorney dis- criteria for prescribe stricter is employment, it government course “substantially relat- qualification than attorney developed unlikely that attorney applies when test that ed” assigned re- neglected government case or client to from one sides switches later, private action sponsibilities with the another. Thus, relat- “substantially mind.14 Subject refinements, to a few we see no third responsive as well to this ed” test for basis a different test. In addition to potential abuse.15 category of forestalling of confidentiality, breaches “substantially designed related” test— 9-101(B) We conclude that the DR prevent government-developed abuse of in revolving rule, side-switching door like a obviously po covers second formation — rule, designed to address “at least a impropriety. opposing litigant tential An possibility reasonable specifically that some prejudice cannot claim from the use in impropriety” identifiable would occur. acquired by formation the exercise of Woods, 537 F.2d at “It 813. cannot be a government power it can unless “reason fanciful, purely subjective unrealistic or ably during repre be said that the former suspicion impropriety requires dis attorney might acquired sentation the qualification.” Smith, United States v. subject information related matter of 126, 128(4th Cir.1981). 653 F.2d As seewe subsequent representation.” Cannon it, therefore—and the key here is to this Corp., F.Supp. v. U.S. Acoustics 398 only specific (as information dis case— (N.D.Ill.1975), 223 part, in relevant aff'd tinct general expertise agency or con (7th Cir.1976). F.2d tacts) government that a former lawyer implicating potential have had cases the third access to one matter likely impropriety initiating, structuring, subsequent matter, to be useful in or ne- a — glecting government representation will there a possibility with a be reasonable government-ac- through case the use When matters are unrelated that a later two so way, quired lack Put another factual reveals no rea- information. review of their contexts unlikely attorney government overlap makes it that a between the claims sonable likelihood government responsibility re- in the first had channeled with substantial investigation would be useful in access information that sources into antitrust facts, (about parties, hope learning something or the be use- second would developed), peculiarities products liability law it is difficult of the ful in a later action. imagine could serve as how the first matter private side-switching cases While developing for the second. an intended vehicle typically "whether it is rea- courts have asked Consider, example, Department of Jus- for infer informa- sonable to that the confidential lawyer investigates for General Motors tice who allegedly given given have been tion Conceivably, possible he or violations. antitrust matters,” lawyer representing a client those later, something of value use she could learn Corp., Westinghouse Corp. v. Oil Electric Gulf private lawyer, products liability case as a (7th Cir.1978) (emphasis add- F.2d defending suing Motors. General either ed), "revolving implicating the door” case in a alone, however, Standing factual connection abuse, category second or third confidentiali- claims would be too tenuous between the two aspect. ty not the of the information is critical prepare support an intent an inference particular improprieties that 9-101(B) DR 9-101(B) cases, revolving and DR door to forestall.16 is intended (related pos- there are three reasons of government-developed sible misuse in- E. formation) why especial- the court must be question There remains the ly applying careful in the test to former methodology determining whether two government attorneys sug- —reasons related, matters are substantially such that gest few refinements test under a former attorney may have 9-101(B). First, DR because had access to information useful in the *12 attorneys may have had access to more subsequent proceeding. determining in kinds information connection with private “substantially matters are prior representation private attorneys than related,” the courts have examined both do, typically greater potential there is a for the facts and the issues involved. including misuse informa- information— “Initially, judge the trial must fac make a tion necessarily that is not confidential tual reconstruction of scope prior nature, supra see note revolving 15—in the legal representation.” Westinghouse Elec Second, public door gener- context. is Corp. 221, tric Corp., v. Oil 588 F.2d Gulf ally more concerned about im- (7th Cir.1978). 225 If the factual contexts proprieties private improprie- than about overlap, the court then has to determine Thus, appearance ties. problem is is “whether it reasonable to infer that the more severe likely because the confidential information allegedly given be potential more critical of this misuse of would been given lawyer repre have ato Third, pri- information. unlike a case of senting a client [prior] in those matters.” vate side-switching, party who seeks Finally, Id. if such apparently information disqualification 9-101(B)may under DR was available to repre- counsel in prior prior legal have been involved trans- sentation, the court has to determine Consequently, complainant action. whether it “is relevant issues raised specific enough not have knowledge of litigation pending against the former gathered the information in the earlier client.” If Id. all three conditions proffer adequate support transaction to met, the matters will substantially be relat- the motion disqualify, unless there ed and thus deemed the same for conflict- sufficient through discovery. access to it purposes, of-interest with doubts to “be resolved in favor disqualification.” Id.; Accordingly, in cases where the Co., see 354, Standard F.Supp. Oil 136 at complainant’s evidence fac shows that the more) (or tual contexts the two transac
While the “substantially
overlap
way
related” test is
tions
such
reason
basically
private
person
side-switch- able
could infer that
the former
16. As we
reasons,
purely
great
the BZA on
instructed
remand in this
made for
tactical
cost
case: "The critical test
litigants
must be whether the
and the
v.
courts. Board Education
government attorney
zoning pro-
1241,
the former
(2d Cir.1979);
Nyquist, 590 F.2d
Al
ceeding
opportunity
gather
had
informa-
Perot,
Cir.1977);
(2d
legaert v.
565 F.2d
gained
he
tion
he
could not otherwise have
Haines,
see W.T. Grant Co. v.
F.2d
use
party
could then
on behalf of the
(2d Cir.1976).
encourage
677-78
We
liti
would
proceeding.
in the later
The information of
gants
disciplinary
to convert lawsuits
in
into
data,
general
concern is not
specific
...
[but rather]
quiries
possibility
when there is no reasonable
public."
information
available to the
tainted,
underlying proceeding
that the
I,
supra
Brown
note
government attorney Westinghouse 588 F.2d at may have had access Electric to, legally information relevant or other- in, subsequent representa- useful wise By announcing approach that deems tion, complainant will we conclude substantially if the transactions for- showing prima facie have established government attorney may mer have had substantially re- that the transactions are access to information that could be producing lated.17 burden evidence just legally useful—not relevant—in la- has impropriety that no ethical occurred transaction, prescribing ter a meth- will then shift to the former odology determining when the burden attorney, complainant’s who must rebut producing rebuttal evidence shifts showing by demonstrating or she that he attorney, scope broadened gained could not have access information “substantially test for revolv- related” might during representation the first (as compared purposes door with the representation.18 Ab- be useful the later Westinghouse Corp. approach). Electric rebuttal, complainant sent sufficient persuasion carried the F. will have burden *13 moving party. as the merits, addressing Before the we believe important sug- approach it is to the discuss important It is to stress that the gested helpful presentation the of our by attorney cannot meet this rebuttal burden curiae, Legal the Ethics Committee amicus simply by claiming no useful informa that the District Columbia Bar. was, fact, in mat tion received in first suggested approach for deter- Amicus’ persuaded If the two ter. factfinder is that mining transactions are substan- whether i.e., that substantially matters related — is, in tially many respects, similar related may to infer counsel have is reasonable adopt today. methodology Fo- to the we during repre received information first case, cusing on the context might useful the sec sentation that be to provided test: initially a three-factor amicus a inference ond—there arises conclusive single pertain to a ob- “where transactions was, fact, re useful information jective and involve the Westinghouse Corp., ceived. See Electric party, public concerns about the same Industries, 3; n. F.2d 224 & Emle usually justice will fair administration of Inc., (2d Patentex, 478 F.2d Inc. v. transac- support determination Cir.1973). there Rebuttal evidence must matter.” part tions are of the same scope legal repre fore focus on “the meaning that the acknowledging matter “and not While each sentation” involved factor "not self- “single-objective” receipt ... information.” on the actual complainant’s prima facie show- making prima 18. To facie a com- rebut 17. out ing relationship, former any particular plainant specify infor- substantial need not produce government attorney evidence must to be relevant to mation or material b.elieved showing elaborating of the two matters so A on the nature transactions. both of related “clearly the issues may to discernible” that overlapping as make it factual contexts be sufficient court should unrelated and de- involved are to create an inference that government-de- during useful veloped not infer the existence of the first matter information veloped Westinghouse Electric private mat- information. could useful in the later which attorney ter, is unable Corp., at 224. If the substan- 588 F.2d the two matters are and thus that evidence, complainant produce will Corp., such tially Westinghouse See Electric related. persuasion ("the on the sub- have the burden of of whether met F.2d at 224 determination disqualification relationship relationship on the stantial test_ there is a turns substantial thereof, only ground: the can be on a different possibility, appearance that confi- avoided or attorney did he she not may given must show that or been dential information substantially” in “participate] personally attorney.... appropriate [I]t 9-101(B); supra notes inquire see the first matter. DR into whether actual confidences 7; disclosed.”). supra 1 and note 5. were cf. evident,” gate of a concept amicus stressed that this the existence substantial relation- provide ship, was devised to a “flexible factor” even where all three factors analysis permits “that recog- a realistic are met. We therefore initial test public percep- parallel assessment reasonable nize distinct between the method- Thus, meaning “[gjiving tion.” ology adopt determining phrase require the take will Court to into substantially two transactions are (too each account situation’s facts numer- by approach and the advocated amicus. identify advance) ous and variable to however, suggests, it for- Amicus weigh light them of the concerns to ap- objective, mulated its three-factor poten- the Rule is addressed and the proach may be modified refer- —which tial or improprieties occasions for abuses attenuating circumstances—be- ence prevent.” which it seeks to following belief: an cause exclusive contrary As to this to the dissen- the former focus on whether case— specifical- implication ters’ did not have had access to informa- —amicus ly opine. Amicus left it this court to tion the first case that could be useful in apply suggested test to the Ami- facts. responsive enough the second one is not added, however, cus that the transactions multiple concerns created the revolv- “need not all constitute involve door, the possibility such as that a ” ‘matter,’ the same but “do not in- government attorney, eye with an to future ‘objective’ if the volve ... most might employment, vigorously specific purpose common which can be said represent government might other- general them is to underlie economic private parties. wise favoritism to show development project.” a property disagreement approach Our with amicus’ *14 In of analysis, further aid amicus First, explained is twofold. as in Part IIC stressed that where transactions “[e]ven D, only supra, concerns about the party, involve the same same revolving properly door that can be reached project objective, same ... certain by “substantially related” test under DR facts, singly combination, may or in indi- 9-101(B) contrast with total ban —in part cate that the transactions not § 207(c) required by Ethics in ” example, “[p]ubl- the same ‘matter.’ For 1978,supra Government Act of —are con- justifiable ic concerns would be less where potential govern- cerns about the misuse of government the former attorney served in ment-developed previ- from information agency an or office not in or involved revolving matter. Amicus’ other door ous subsequent proceeding.” cerned with the concerns, flow, not related to information Moreover, passage of an extended “[t]he appearances are directed at attributable to period suggest alleged- of time should that government service without a demonstra- ly ‘substantially related’ transactions did ble, prejudicial to earlier relationship not Finally, involve the same matter.” very purpose transaction. The government attorney “former should also § 207(c) to of the 1978Ethics Act is deal indicating be free to facts that he impropriety appearances with such —and having she not learn did information period the realities reflect—for a special to subsequent usefulness his or her year leaving government, even of one private client.” though identi- no related transactions are earlier, perceive thus makes three-factor As we Amicus its test fied. indicated no light incorporating pur- rebuttable. When viewed this basis for that broader refinement, 9-101(B) pose DR further the three-factor test into the more limited appears against participating proscription to serve much the same function in sub- proscription prima stantially facie standard set forth related matters —a above § HE, 207(c), attenuating (we emphasize again) that, supra. in Part cir- unlike limit, suggested by prescribed amicus can ne- not have a time see cumstances does Corporation City in, exception case at Motors v. special General wise useful York, (2d New Accordingly, 501 F.2d 650 n. the burden issue here. Cir.1974), completely producing and thus would shut this inference to rebut evidence revolving Murphy— door. shifted Mitchell and must be firm, thus their Wilkes & Artis. law
Second, “single objective” criterion suggestion vague too and wooden. III.
that,
substantially
constitute
order to
matters,
the transactions
issue
proceedings—
turn
to the BZÁ
We
now
but
here need
all
involve
first,
and, then,
scope
to our
of review
(sufficient to
should not be deemed related
the merits.
specif-
single objective) if the
reflect a
most
purpose
general
ic common
economic de-
A.
velopment,
enough.
does not take one far
Scope Review
If,
example
would conclude
—as
case,
see
III & n.
Part
28—the
determine,
This court
is to
as a
infra
specific
purpose
general
most
common
law,
matter of
whether the transactions are
development
property,
economic
“substantially
and thus the same
related”
preclude disqualification
should
for-
“matter.” But we are bound
do so
mer
counsel did have access to
prop
the basis of facts found
BZA—
information from the earlier transactions
erly reflecting
prescribed
our
methodolo
might
representing
be useful
Carr.
gy
“supported by and
they are not
—unless
reliable, probative,
in accordance with the
applying
methodology,
our own
§ 1-
D.C.Code
and substantial evidence.”
however,
agree
amicus
we do
1509(e) (1981). “If
substantial evi
there is
there
when
has been a series of transac
finding, then
support
dence to
Board’s
involving
parties,
tions
the mere existence of substantial evidence
(not necessarily
property, and similar
sin
contrary
finding
does not allow
gle) objectives,
contexts are
the factual
judgment
for that
substitute its
likely
overlap sufficiently
party
that the
Spevak
v. District
Colum
the Board.”
disqualification
who
under DR
moves
Board,
Beverage
bia Alcoholic
Control
9-101(B)
prima
will
established a
facie
(D.C.1979);
accord
407 A.2d
though
even
issues
technical
*15
v.
Alcoholic
Haight District
Columbia
supra
different. See
are
Part
themselves
487,
Board,
Beverage
Control
439 A.2d
objective
HE. A look at the realistic
Liquors,
(D.C.1981);
see Jameson’s
in
each transaction
these circumstances —a
Alcoholic
Inc. v. District
Columbia
synthesis
legal objec
of the facts and
Board,
Beverage
Control
384 A.2d
usually
tives —will
lead the court
con
(D.C.1978).
improper
of information
clude that
flow
likely.
example,
present
is
In the
for
Proceedings
BZA
are
that
the three land use
we
satisfied
the
properly placed
at
The BZA
burden
transactions directed
Brown,
zone,
persuasion
party
the
unique, relatively
petitioner
small
CR
peti-
disqualification,
the
for
and
involving Oliver T. Carr and
District of who moved
instance, pro
presented
support his
government in each
tioner
evidence to
Columbia
before the
overlap
allegations
for a rea
that
the matter
vide
sufficient factual
substantially
two
person
infer
Iverson Mitch Board
the
sonable
was
related
argu-
Murphy,
petitioner’s
and
while
earlier matters. To rebut
ell
C. Francis
ment,
District,
presented
for the
have had access to
intervenors
seven witness-
affidavits,
es,
nu-
height litigation and
of sworn
and
information from the
number
Moreover,
documentary exhibits.
rights
the air
condominimum discussions merous
to,
although
argued
legally
petitioner
or other-
has
both to the
that could be
relevant
identi-
principles
BZA
to this
he
denied
facts or
render the matter
and
court that
was
“wrong
applies
access to certain materials and that infor-
the
ultimate
cal” —
placed
mation
to his case was not
In the
disagree.
relevant
Post
test.”
at 66. We
Board,
negate
before the
the
not re-
not
place,
record does
does
first
that statement
supra
findings, see
petitioner
improperly
flect that
denied
other BZA factual
the
discovery
any
evidence,
information for which he
19, supported by substantial
note
request,
made
timely
attempt-
or that he
applying
are
the substan-
relevant
ed
any
any
to call
witness or introduce
test;
tially
superflu-
is
at worst it
related
evidence
improperly
that was
excluded.
Second,
review,
appellate
applica-
ous.
Accordingly, we conclude that
the factual
facts, using
tion
the law
hearing
findings of the BZA after
this
test,
substantially
ultimately
related
supported by
must
stand
substantial evi-
court,
the BZA. The dissenters
dence.
unfair,
Finally,
dispute
do not
that.
irrelevant,
BZA for
well as
to fault
Although
property in
Oliver T. Carr’s
sentence,
saying
pages
one
in
amidst
setting
West End CR Zone is the
for each
transaction,
findings,
“[njeither
that the matters at issue are
the BZA found that
remand,
facts, events,
referring
On
nor transactions
“identical.”
without
test,
proceedings,”
substantially
were
in
at issue
the three
related
this court
I,
presented
spe-
that “the issues
Brown
413 A.2d at
asked the
exception
way
cial
are in no
connected to
special ex-
BZA to determine whether the
height litigation
opinion
or the
concern-
ception proceeding
“same matter”
rights
air
condominium.”19 The
fact,
previous
as the
In
used
two
ones.
we
BZA, moreover, spoke directly to the “crit-
terminology throughout
opinion.
ical”
“substantially
concern of the
related”
findings
BZA,
Id.
at 1281-84. In
25-27
expressed
test —as
it on remand of
we
too, consistently
terminology.
used that
I, supra
Brown
finding
note
“no infor-
likely,
reviewing
opinion
our
16—
More than
proceed-
mation
the two earlier
order,
following
BZA
our remand
ings
applicant
which would have aided the
concepts
intended the
of “same”
“identi-
subject [special
exception]
cases be-
synonymous, embracing
cal” matter to be
Decision,
January
fore the Board.”
traditional,
substantially
test
related
19;
supra
Westinghouse
see
note
(cited
caselaw
embedded
Corp.,
Nyquist,
225;
Electric
588 F.2d
But,
applied
opinion)
the division
here.
(Mansfield, J.,
The dissenters would discard the because, permit do ruling substantially they say, BZA record evidence to short, perceive finding/conclusion last sentence of so. no basis rejecting findings —“Nor be- does common core of relevant BZA’s factual *16 19. specifically, paragraphs cite Board finds that the fact that the More three The January property the BZA’sdecision of 1981: was is not a sufficient involved identity of and connection to create an issues 25.The Board finds the issues presented by exception special the are in no render as the matter.” the three matters "same way height litigation or connected to the the 27. The Board finds the coincidental concerning rights opinion an air condomini- by fact the the that the result of decision um. None of the standards which the Board Superior larger development Court allows a required deciding special apply to parking and is not thus more on the site also any bearing exception all issues have at on the to connec- sufficient create “same matter” litigation by height presented which were exception special tion. The standards question. rights Nei- or the air condominium met, be infor- and the Board finds no facts, events, nor ther the same transactions present proceedings mation in the two earlier proceedings. three were issue in the Nor applicant which would have aided any facts or does common core of relevant subject cases before the Board. principles render the matter identical. litigation It is arguably important one clouds note that this
cause of sentence that not portend any particular did reflect or the BZA’s conclusion conclusion —a parking type development arrange- or ultimately for make. this court to FAR, ment. An in the while in- increase creasing right, as of space rentable has no B. bearing property direct on whether the can Height Litigation or developed for commercial residential be Nor, develop- residential purposes. as to address, first, We Carr’s liti ment, FAR have a does an increased direct gation building limi challenging height permitted relationship to number of v. property. his End Carr tation on West parking spaces. The number of off-street Zoning District Commis Columbia permitted parking spaces as of residential sion, (1975).20 No. 4122-75 Civ. Action directly FAR right but to Corporation Former Counsel Iv- Assistant dwelling units —a maximum number Mitchell, now one of intervenor erson spaces per Zoning two units. D.C. three counsel, represented Zoning Carr's § Regs. (1982).22 An 4505.1 increased FAR successfully alleged Commission. Carr dwelling permit more units of will either height imposed by that a 60-foot limitation contemplated originally size or allow Zoning buildings in the Commission on same, smaller, or even a number of West End within feet of Rock Creek luxurious, more designed units be (as compared with limita Park the 90-foot initially planned. larger, thus than Accord- zone) arbi tion rest CR FAR no ingly, an increased bears neces- capricious trary thus an unconsti relationship to sary or the number of direct taking property. his a re tutional As permitted parking eventually as of places (FAR) sult, floor-area ratio usable right special exception by—or —because approx Carr’s was increased necessarily FAR dictate num- does 6.0, thereby permitting imately 4.5 Carr dwelling ber units. building buildings plan larger accordingly say height litigation This is not to FAR increase there.21 unlikely dwelling objective increasing the result in additional achieved Carr’s parking spaces; of- space. more rental units and related allowable applied, the floor area As the CR District "[i]n 20. The BZA found that intervenors’ Artis) (Wilkes buildings a lot on shall no ratio of all and structures & “had role in” the counsel 6.0, Stohlman, than of which height litigation. hert, Beuc- not exceed not more 3.0 The firm of counsel, Smith, purposes." general residential Egan be used for other than Carr’s (1982) (emphasis D.C.Zoning Regs. litigation represented § 4504.1 Carr in both the original). rights discussion. and the air condominium (1982) provides Regs. 22.D.C.Zoning 4505.1 § "figure which ex- The floor-area ratio is a part; relevant presses multiple gross as a the total area floor provid- buildings All and structures shall figure the area of the lot. This is determined specified spaces, ed with offstreet dividing gross buildings all area of floor following parking schedule.... D.C.Zoning the lot the area of that lot." (1982) (emphasis original). Regs. § gross The term floor area means sum ”[t]he Schedule Parking gross floors horizontal areas of several Minimum Number Maximum Number lot; buildings shall not of all ... [but] Spaces Use turn, cellar, Id. A is de- include cellars.” 1/dwelling family unit Single ceiling less "the of which is fined as area dwelling flat adjacent four above the finished than feet dwelling dwelling Multiple 1/6 units units 1/3 Thus, any grade grade.” with a Id. below area *17 dwelling grade ceiling that less than four feet above dwelling dwelling Multiple units 1/6 units 2/3 gross in a of the will not be included calculation dwelling and, accordingly, not will be included floor area constructed as restrictions in the floor-area ratio affected cooperative condominium that ratio. than probably ten not it will. parking The relevant spaces.” “need for more however, First, point, is twofold. There parking spaces” there is is a “need for more way say by way no one can with special exception reasonable cer- of a only if the tainty height that litigation, 1975 the permitted right increased number as of —as premised only issues, height on constitutional litigation— had indirect result of bearing direct proves on the number of dwelling particular for insufficient parking spaces project units and eventually planned. which Carr At the time of Developmental would be entitled. height litigation choices this additional need clear, make, were still his to albeit greater anything especially was but because flexibility particular development eventually after he won lawsuit. The simply wrong Westbridge dissenters are in asserting, yet built—the —was 61, post height litigation templated, we can so far as tell. Westbridge,” i.e., concerned par- “the implications We elaborate these building ticular residential Carr elected to height litigation, response well as our develop later, much after winning the analysis, that, the dissenters’ show height litigation aborting different, the absence of there is evidence—and rights mixed use air proposal condominium privy have none—that Mitchell been property. relating information it somehow to Carr’s Second, dwelling specific additional plans units auto- for the and the Dis- matically permit parking likely additional trict’s response, appear does not spaces spaces every three that increasing resi- the FAR would have had —two supra dential units added. any special note 22. later relationship exception See to a question special exception The concerning parking for still case off-street at a de- parking spaces more is wholly separate velopment planned eventually for the same permitted from the property. increased number as of The BZA found no such relation- right dwelling as the ship number of units in- following remand Brown I: “Noth- creases. The dissenters overlook the record herein demonstrates that point, and improperly thus tie height any height litigation the issues in litigation automatically to the special subject parking.” later Find- exception proceeding, that, say ings emphasized when 118. The BZA that “[t]he having previously sixty height “obtained an increase of sole issue was the foot restric- three building, some stories for the tion parking and there no reference to was created a related parking Findings significantly, need for more issues.” Most II9. 63; the BZA “no building.” Post at see found that information” avail- spaces height litigation liti- able to Mitchell from the post at 68. Because special ratio of “would aided” Carr in the gation did not alter the spaces permitted exception Findings 1127,supra to residential units as of note case. right, it did not create or 19.23 otherwise affect response about the concern to contradict Mitchell’s assertion that this was attorneys looking private employment, Corporation policy; pe ahead official nor did Counsel litiga- suggest BZA other added that it could find "the titioner introduce evidence to anything vigorously Corpo- tion was not but zealous in defended Mitchell was his Findings representation ration District of Columbia’s in Counsel.” record ¶ Moreover, capably possibility confirms conducted is no that Mitchell terests. there litigation improperly He defended Mitchell diverted District’s height effort. funds for City private gain. Corp. basis of the record See Motors v. limitation on the General Cir.1974); York, (2d Zoning developed before the Commission. He New 501 F.2d Paul, strategy Realty Exchange before the BZA that this Allied St. Inc. v. Na testified Chicago, posi- F.Supp. Corporation Counsel’s tional Bank (D.Minn.1968), consistent with the itself, Cir.), (8th aff’d, stand on 408 F.2d tion "that the record must denied, judgment Court its 90 S.Ct. could not substitute cert. 396 U.S. 24 L.Ed.2d (1969). Zoning government’s position In the BZA that proceeding, petitioner Commission.” 73 height litigation wholly introduced no evidence defensive. *18 of the District disturbing see no ums Laws of Columbia.
We these basis this letter findings; supported by purpose formally are is to substantial opinion an request Corpo- evidence. The record shows that the Zon- such from the height and to ing imposed Commission limita- outline the facts ration Counsel buildings adjacent tion on Rock Creek involved.... reasons,
Park for aesthetic because opinion that It is our since we parking. a desire to limit traffic and related building on building one one lot and that, record as a also shows result ownership legal title is one height striking the trial limita- court’s building re- proposed meets all of the tion, Carr entitled to an increased par- quirements zoning. of the CR More amply supports FAR. But the record yard (i) required that no rear is ticularly, finding litiga- BZA’s that the effect of the streets, building fronts on three since the dwelling tion on the number eventual 26th, Avenue, Pennsylvania and M spaces parking units and we related (ii) —as Streets; provision indirect and thus elaborated above —was required space for residential recreation ¶ 27, supra Findings note “coincidental.” provision of recreation- use met Furthermore, in view of fact that space use of condominium own- al for the proffered rights a mixed use air Carr park- of the first floor ers over the roof govern- to the District proposal dominium (iii) parking areas; ing retail and and height litiga- ment a few months after the the sum are met because limitations tion, unlikely extremely it is that at the the maxi- spaces total do not exceed height litigation Mitchell could time of the contem- mum uses permitted for information privy been about plated. opinion that is also our It eventual, wholly project residential Carr’s satisfy zon- CR building will continue Westbridge. in the West End: the dec- when condominium requirements Rights Proposal The Air Condominium of the covenants laration is filed because described and below. [Em- easements Next, pro- rights air condominium phasis added.] 24, 1975 posal. The letter from October opinion con- appreciate an We would supra see time, note attorney at that Carr’s project does proposed firming that 20, Counsel Francis Corporation to then requirements con- zoning meet the CR Artis) (now Murphy Wilkes & read with upon actual contingent ceptually, part relevant as follows: being space kinds of amount of various Murphy: Dear Mr. In the event adequate verified. Carr, Jr., T. represents firm Oliver Our we are any problem, there Dairy develop the who desires to Sealtest appreciate you it if aware, we Avenue, Pennsylvania Site at 26th and may attempt us so would contact residential, and of- N.W. for commercial problem. to resolve the zoning. On fice uses the new CR under litiga- height unlike the place, In the Mr. first representatives of October proposal tion, rights condominium the air discussion with preliminary Carr had the amount affected development would not have regard proposed with places Mitchell, Robbins, space rentable Iverson Messrs. Louis litiga- office, right after the permitted as of your together and Semi Feuer on rentable tion. The FAR restrictions Kirk White Steve Sher with Messrs. supra note see space, as well Planning to ac- Municipal Office parking, zoning applicable to develop- regulations proposed quaint them supra see building construct- uses, note request and to ment and mixed those rights not differ from ed air do Corporation Counsel opinion from the fee sim- applicable building to a owned complies with the new building ple. Zoning Regulations Condomini- CR *19 Furthermore, two witnesses Special Exception The Additional testified for Parking parking
without contradiction that in no way rights issue in the air condo- is, finally, present There case: an proposal. Smith, minium William the au- exception application special permit for a to thor of the letter and additional, Carr’s trial counsel in grade parking spaces below for supra see litigation, Westbridge development residential note earlier, eventually Carr As noted built. CR testified at the hearing, explaining BZA zoning regulations require developer reference parking as “I follows: provide parking space a minimum of one saying opinion, in our building, this every dwelling permit for six units and had, concept would meet all the CR developer provide a maximum of two zoning requirements. Therefore, assuming spaces every Zoning three units. D.C. zoning requirements, that we met the § (1982), supra Regs. 4505.1 note 22. The go were to give Opinion ahead and us an may grant BZA special exception, permit- to whether or rights not an air condomini- ting maximum, parking in excess of the if: um would be under then-existing id., (1) indoor, proposed parking condominium statute. only That was the § 4502.321; (2) the entrances and exits to reason I parking.” referred to the Robert parking spaces are not within 25 feet of Carr, president a vice developer, a street intersection or within 12 feet from explained the reference in these terms: “I §§ id., alley, 4502.322, the center line anof don’t any think there was definition then of 7402.12; (3) parking shall not result “[s]uch precise parking spaces number of dangerous objectionable or otherwise were to be utilized either the commer- conditions, traffic and the charac- cial or residential uses. I think that all this development ter and future neigh- says is adversely affected,” that it was the intention of the firm borhood will not be § id., 4502.323; (4) parking comply parking with the levels set for “[s]uch reasonably necessary and convenient zoning.” Id. vicinity.” uses on the same lot or in the BZA, The opportunity which had the § 4502.324.25 witnesses, accepted observe the expla- application before the BZA would nation, finding that meeting October “[t]he below-grade parking allow Carr to add 45 solely letter dealt concept with the spaces development, to the West End creat- rights an air condominium. Neither ing spaces a one-to-one ratio of and dwell- meeting nor the letter dealt with or had height litigation units. Unlike the parking.... relation to Parking was resulting FAR, special increase in not an issue in ques- ... the condominium exception proceeding cannot be characteriz- plausible tion.” interpre- We see no other attempt ed as an to increase the rentable give letter, tation to words space property. regu- on Carr’s The FAR petitioner has offered none.24 Nor do we do restrict the amount lations of renta- perceive any upsetting basis BZA’s space building ble added to a finding that no information available to supra note 21; see grade, below builder Murphy and Mitchell at the time of this may space grade add as much as he below transaction have aided Carr in the would Thus, parking space she chooses. Decision, exception special January case. exception, granted, would not have af- 7, 1981, supra space note 19. fected the amount of rentable avail- Moreover, nothing regulations require there is in the record the BZA also to refer suggest dwellings that the number and relat- application to the District of Columbia Mu- rights spaces proposed coordination, ed air Planning nicipal Office re- “for greater condominium would have been or fewer report” taking view and final action. before Westbridge development than the number in the D.C.Zoning Regs. § 4502.325. ultimately that Carr constructed. exception proceeding, at Westbridge; only special obtaining
able per parking space one residential unit. authorized Carr to use more of his rentable rights mixed use Nor was the aborted air space grade parking. below *20 proposal pertained condominium —which I, of On remand Brown the BZA found space the amount of rentable neither to nor regulations’ grant- the criteria satisfied and parking any way related to to Carr’s —in 17, application May ed the in its of order in application for an increase off-street 1978, concluding that additional below later-conceived, parking the residential at grade parking would ameliorate traffic con- Westbridge development. Finally, because vicinity Westbridge.26 of ditions in the the special exception only the case concerned earlier, supra 19, As note the noted see to parking, it was not related Carr’s earlier expressly BZA found that no facts or is- objectives increasing space rentable special exception case in sues were through height litigation seeking and the way building connected with the earlier rights opinion legality of an air an the rights height air condominium transac- and condominium in the CR zone. tions, that no information pri- reject analysis The dissenters Murphy to Mitchell and have been available premise: marily faulty a that all because previous from these transactions rights height litigation, air three matters — special exception in the have aided Carr special proposal, excep- condominium decidedly the different case. Given building “same tion the case—concerned the testimo- issues in each transaction and (the Westbridge).” 61; post Post at see each, ny and exhibits of record as 63, at 68. That plainly is evidence of conclude that substantial true, not acknowledges as dissent itself supports findings. record these 61 n. 66 n. 12. in two footnotes. Post at Summary involved, The but we property same height litigation Although the facilitated Westbridge, have no evidence that indirectly space, increase of rentable an desire to maximize the number Carr’s permitting building construction of a with there, anyway parking spaces was larger dwelling units and relat- number proceedings. the two earlier related to parking spaces Indeed, than otherwise ed Carr intervening rights air planned, the maxi- probably proposal would have dominium evidence clear parking spaces Westbridge, such, remained mum number as in- proceedings. regulations at a ratio of volved in the earlier In by zoning two fixed Thus, short, uncomplicat- posit “an the dissenters spaces every three units. two case,” post ed mischaracter- litigation not related happened27 proceed izes what and then objective, announced later Carr’s impact diminishing particular, thereby in the vi- BZA traffic 26. found: building. cinity proposed requested parking 13. The will be used storage pro- parking for the owners states, post dissent at 61: 27. The posed units to be erected as condominium attorneys involved while in development project. spaces Two were part The of the litigation government problems and re commuters or will not be utilized either (the building avail of com- lated to Westbridge) construction others who wish to themselves Washington, parking "West End” area. expert mercial intown Later, joined applicant’s both a law firm and traffic testified D.C. property proceeded represent proposed parking and the Board finds Carr, owner, involving proceeding many significantly generate trips Mr. will not building4 in its and the same traffic because of its nature as stor- increase building. stages age parking of construction. for residents of the final 4 building” building Parking By I con provided mean at the of one “same ratio dwelling keep same site.... space per unit will the automo- structed facts has two obvi- occupants the resident This characterization biles owned (1) building adjacent community two former at- proposed off ous flaws: Mitchell, area, Murphy were never in- torneys, off other lots in the streets and attack majority opinion dealing, for not properly former effect, with the hypo- dissenters’ own “screened,” 9-102, DR we have resolved thetical set of facts. that, substantially for matters not representation previous govern-
IV.
ment, such
necessary.
insulation is not
We conclude
analysis
the BZA
expect
This court should
no more than
application
correct: Carr’s
BZA
for a
record,
require.
what the rules
On this
special exception
additional,
below revolving
permit
door rules
Wilkes & Artis
grade parking at
the residential West-
represent
intervenors
this case.
bridge development
matter not increas-
—a
Affirmed.
space
rentable
substantially
re-
—is
*21
lated,
meaning
9-101(B),
within the
of DR
PRYOR,
Judge, concurring:
Chief
(1)
the earlier discussion/correspondence
presented
ethical issue
here arises
rights
about a mixed use air
condominium
not
confidentiality
from a breach of
born of
proposal
(which
property
on the same
did
interest,
a conflict
possibili-
but from the
space
not concern
parking),
rentable
or
ty
attorney may
governmen-
that an
wield
(2)
height litigation
the earlier
establishing
authority
tal
with a
subsequent
view to
grounds
FAR,
constitutional
increased
private gain. To avoid
appear-
even the
space,
and thus more rentable
on the same
ance of
impropriety,
such
the Code of Pro-
property
relationship
no direct
—with
Responsibility
fessional
directs the former
permitted
parking.28
off-street
government attorney
private
to refuse
em-
general
Some
public,
members of the
ployment in matters for which he had sub-
revolving
debate,
attuned to the
door
responsibility
public
stantial
as a
servant.
why
wonder
former
attor-
9-101(B).
generally
See
9-3,
DR
“Re-
EC
neys
negotiated
litigated
with a
—who
Door,”
volving
(D.C.1982) (en
this case. legal the standard Bar —to establish our We of Columbia. I),2 in the District (Brown ethics us it first came to When responsibility not shun (“the should BZA” or Zoning Adjustment Board rule stated applying the often guise of dis request Agency”) had denied “the findings agency law that administrative Canon of firm under the qualify the law reviewing by the accepted must be being fact considered. Legal here Ethics ap- contrary implication. As will Legal ion has a of the District on Ethics Committee 1.The Bar) (the is in fundamen- parent, Committee as “the Bar.” Bar is here referred to Columbia case on in this disagreement with the court representative on tal is the Bar’s The Committee juris- in this precisely legal be viewed legal for this ethics should ethics. It is how matters of government attor- requested applies to former it to brief and it that the court diction as reason neys. orally argue amicus. this case as Bars, pub- issues other the Committee Like in Zoning Board Columbia v. District 2. Brown request opinions of Bar members at the lished (D.C.1980). Adjustment, A.2d 1276 legal See problems of ethics. ABA/BNA on Conduct, Lawyers Professional Manual on extraordinary step remanding, took the In Respon- seq.; of Professional et Code 81-2301 § suggestions offering some advance Legal Opinions Bar Ethics sibility of D.C. protestation ethics area due binding, Though view courts Committee. inexperienced agency in this BZA that Nationally, the opinions as authoritative. such agency point the toward done to area. This was Legal Com- Ethics Bar Association’s American might questions arise on potential by some widely courts. cited opinions are mittee deciding any course were remand. We of state- entirely clear on whether I am not opin- in advance. majority issues in the first footnote ment
fil supported by present court if from 60 to 90 feet. The substantial evidence. go I will into this later. proceeding increasing space densi- involves ty marketing for end of the the lower proceedings, After BZA the remand (for building parking). space Earlier the findings made of fact and conclusions of density marketing up- increase for major respects cre- law that strain one’s building time it is for stairs and this dulity, and the case came back (the by hearing building court. After a decision downstairs West- decision, reversing division the BZA bridge). question of The main law court en in this case and the went banc whether, purpose proceed- of this for the sharpened issues became for the establish- ing, there constituted a “substantial rela- governing ment the full law proceeding tionship” between the first “revolving jurisdiction. door” in this density marketing space up- increase requested The court on its own motion proceeding in- stairs and the Bar, through Legal its Eth- Committee density space marketing crease ics, orally argue to file a brief and building very downstairs in the same say amicus curiae. It is fair to that this is very party. owned The BZA a seminal decision on this issue. defective, findings enters that are as I shall Basically, uncomplicated this is an case demonstrate, and then concludes stays reality simple one with funda- way earlier transactions “in no were ”5 explaining mentals. I see no proceeding nected with the current BZA get majori- need to lost in the woods of the concerning parking, increased a fatal error ty opinion. finding in its ultimate of fact. Two were involved while in discussing evidentiary Before and le- problems litigation court, gal might issues before the be well building related to the construction of a (1) BZA to outline what the function of the (the Westbridge) in the “West End” of was; (2) of Professional what Code *23 Later, Washington, they joined D.C. both rationale; Responsibility provides and its proceeded firm represent law the (3) perform and did not how the Board did owner, Carr, pro- Mr. in a function; (4) proper is its what now ceeding involving property and the same before us for review. building4 stages in its final actually say, as I The facts this instances, proceed- construction. In all the complicated. are not Mr. Carr decided sev- ings specifically increasing the involved project in the years ago eral to build a density space building the for market- of Co- End” section of the District “West ing purposes. proceeding in- The first point geographical focal increasing density space lumbia with the volved the Avenue, marketing purposes by raising building being Pennsylvania the 24th and N.W. building” By building” building I mean the The court’s treatment of the “same "same emphasis question structed on the same site. a non-existent air its —and rights corporate an excellent illustration form condominium —is This is not a tax case where suggestion predominate. and technicalities We have here of the of the Bar’s wisdom question. pur- to earth ethical For our engage down in this case. in "fine ratiocinations” poses, there need not be the same number of elevators, restrooms, fountains, Findings, paragraph (emphasis or water 25 add- 5. BZA building.” test, parking spaces ed). to be "same Con- appear, BZA this which the As will 2, trary opinion to the at footnote court's manifestly applied, as a matter of erroneous attorneys government attor- two neys were in fact requires reversal under law. This alone (to height Westbridge when the of the Chenery Corp., rule v. well known of SEC built) a result of was raised three stories as (1943). 454, U.S. S.Ct. L.Ed. litigation. repre- The fact is that Mr. Mitchell Chenery in the rule of is one of the landmarks litigation sented the in that —con- procedure. law on administrative trary majority’s representation to the that the "project initiated after left.” time, building At height changes and suggested application limitation there was 60 feet rather than the usual 90 promptly, filed then even if no oppo- feet, proximity due to its to Rock Creek develops, Mr. Glasgow sition believes Park. Mr. Carr decided to institute a legal Zoning that it will take the Commission proceeding to get limit raised longer than approve November feet, adding from 60 to 90 extra stories to zoning application.... Moreover, he building. equitable He instituted an suspect Mr. Murphy does will have proceeding purpose for this and was suc- proposed changes some and will want to adding cessful stories extra study proposed zoning application be- building marketing. Later, there were letting him fore know what those additional Corpora- discussions with then changes are. tion Murphy Counsel C. Francis about a proposed air-rights condominium on the same site but this proposal was soon [*] [*] [*] [*] [*] [*] dropped the Corporation because of Carr attempts Coun- I [another After several proposal’s sel’s reaction unfavorable on the Norman to contact attorney] was able success, among things. chance for other It He stated telephone. Glasgow significance is of in this that the case Cor- meeting with had a 8th, he on June poration Counsel, from whose office the Counsel, Mur- Francis C. Corporation emanated, two here involved zoning proposal discuss phy, to BZA, among advisor to the other dis- As a application. formal of the advance fact, agencies. trict As a matter of Glasgow is no meeting, Mr. result proceeding BZA, remand before the last re- he atwas than optimistic more presence official Corpora- of an Assistant is pos- think is, he does port—-that Counsel, tion presumably advisory Novem- zoning by the to obtain sible office, capacity of that is noted on the 1st, deadline. ber record. record is silent as to whether conversation, Mr. I understand As Corporation Assistant Counsel also as- four Murphy discussed and Mr. Glasgow in the preparation sisted of the BZA’sfind- zoning. new obtaining this approaches ings proceeding. fact in to be seemed approaches Only two According correspondence presented two, them re- one Of these feasible. through petitioners’ to the Board motion to legisla- research Glasgow Mr. quires reopen hearing, advance formal Con- history determine tive plan, application project Carr’s attor- contemplat- zoning permit gress will neys Corporation met with Counsel Mur- *24 assist- some be of could Perhaps we ed. phy. represented Artis Wilkes and Carr in research. this him in to ance early Westbridge development proceed- the ings primarily through partner senior Nor- involving redefining approach The other Glasgow, letters, May man Sr. Two dated the defini- thereby changing highway, a 24, 1973, 27, 1973, and June and written on Mr. Mur- building setback line. tion of company apparently Carr’s behalf to a then pursue encouraged Glasgow Mr. phy negotiating specific prop- sale of End West method. this Carr, erty to describe various contacts be- day, Also filed with the BZA on the same Glasgow Murphy. tween and Relevant April was an memorandum from portions excerpted: Klauber, Murphy to Martin Executive Sec- Glasgow absolutely Mr. states that it is retary Zoning the Commission. The necessary application the to clear with Murphy memorandum states that had re-
Corporation Murphy, C. Francis Counsel application viewed Carr’s and concluded prior filing application, the and he processed petition that it should be hopes to this Mr. as a Murphy discuss Murphy regulations, week. zoning next Even Mr. has no amend text of thereby lawyers, Zoning by Both of these then hastening District.7 Commission re- view.6 firm, represented private law Zoning eventually Commission Carr, very party, Mr. adopted a map text designating and proceeding. BZA West Use, End section as Mixed CR zone BZA to hold a remand, it was for On district, purpose of which is to encour- findings con- factual hearing and make age diversity compatible uses, land 9 of the Code Canon clusions whether including residential, office, retail, recrea- violated, Responsibility Professional light tional and industrial. D.C.Zoning therefore, there must be and, § Reg. (1982) (codified 4501.1 as amended proceed- from the firm the law § removal of (1984)). at 11 DCMR 600 Additionally, by the law for failure the BZA before plan seeks to reduce the flow of traffic these two former out firm to screen develop primarily areas devoted pe- spe- from the BZA attorneys government objectives destrians. Id. These are accom- and to substitute plished exception proceeding part by prescribing cial the necessary law firm. attorneys minimum and maximum numbers other park- ing spaces for commercial and residential pertinent ethical consideration in development through a floor area ratio provides: Canon 9 (FAR) upon formula square based bulk lawyer After a judicial leaves office or footage and residential units. Id. at other employment, he should not §§ (codified seq. 4504 et as amended at 11 accept employment in connection with § (1984)). DCMR 631 seq. et any matter in he which had substantial Having later an increase of obtained responsibility prior to his leaving, since building, some three stories for accept employment give the ap- created a related need for more pearance of impropriety even if none ex- spaces building. Consequently, ists. Code of Responsibility Professional present proceeding before the BZA was (1983). EC 9-3 instituted, living space the added which tied closely park- need for added These years concerns from evolved of con- ing space. troversy “Revolving about Door” in jurisdiction. might During period As one previous imag- well pro- ine, this ceedings, special sensitivity has a Mr. C. in Wash- Murphy Francis was Cor- poration ington, D.C., is, being, Counsel District seat of of Colum- government. bia and part took Most law firms here conferences continu- concerning ally phases partners various hire or building make former project over years gain government. exper- behalf their Mr. experience Iverson Mitchell was tise and at the same time Corporation Assistant Any disciplinary poten- Counsel tacts. rule rep- resented the tially might impinge District the proceeding upon expe- this flow of brought by Carr to raise the building practice rienced talent un- appeal limitation. No derstandably the suc- through would send tremors cessful suit Carr was top instituted levels of local law firms. *25 prior The Board considered this evidence Glasgow advice and consultation Mr. on its decision on remand assumed approval that these how best to obtain of the CR Zone place: discussions had in taken fact Zoning from the Commission. The Board that, Artis, contacts, assuming principally through finds Wilkes and even those Norman Sr., Glasgow, represented relationship, legal, M. there is no factual Oliver T. be- Carr during period hearings zoning time zoning that the CR tween the on the CR Zoning was before [proceeding Commission in 1973 issues and the involved here]. alleged opposition and 1974. The that while Carr, imply way representing Glasgow 7. I do not one or the other so Mr. that an met with Murphy during appeal gave Mr. should or should have been 1973 and who taken. ago, goes. years a Bar it Because of moderate Some committee of screen- our. pushing relatively ing provision for a stern rule firm remaining the law —with regarding “Revolving It had Door.”8 particular case—there is no interfer- potential to from disqualify law firms governmental hiring program ence with the cases, just some federal rather than indi- to future on attor- due economicinhibitions attorneys vidual of the firms. This move- considering government employment. neys however, eventually receded, ment screening provision any removes such eventuating. present amended rule words, place In is in problem. other there pointed screening by a law rule toward moderate, ap- jurisdiction in this sensible disqualified firm of a firm member but proach question to the covered in ethical i.e., unaffected, leaving the firm itself good why There is reason Canon 9. no this is a firm remains The outcome ease. this Canon court should stand behind comparatively participa- mild on restriction it, intended, especial- it and enforce as was specific proceedings by former tion in it is the rule. Unless ly since court’s own it attorneys. court government As the case, might proper in a better is enforced states, formerly in firms law not be “on books.” any in in participated government while proceeding “substantially related” to the FINDINGS OF FACT
proceeding which firm is then the law engaged, any such should be turning scope to our review this by any participation the firm screened opinion is for the court’s states it a moder- proceeding. in the current It is determine, law, “to matter as a ate, prob- approach ethical sensible ‘substantially whether the transactions are ” usually relatively only lem and creates But, and thus the ‘matter.’ related’ firm. minor inconvenience for the court, so “we to do says the are bound been, however, misconcep- BZA of facts ...
There have
the basis
found
There
and in
disciplinary
‘supported
tions
rule.
are not
about
unless
misunderstanding
reliable,
that the Canon
probative,
has been
accordance with
”
upon
ability of for-
impinges
somehow
evidence.’
substantial
practice their
government attorneys
mer
for the
thought
I should have
it was
pri-
governmental specialty when later
a de-
first make
agency to
administrative
practice.
grossly
This is
inaccurate.
vate
the transactions
termination
imagination
does this
By no stretch of
“substantially related and
are
[therefore]
oppor-
rule,
example,
interfere with
thought
I
the same matter.”
had
...
government tax attor-
tunity of a former
re-
purpose
the fundamental
practice.
practice
private
tax
ney to
law
agency.
proceeding
That
mand
before
9-101(B)
restrict the
All
DR
does is
agencies
why
essentially
administrative
attorney from later
former
tax
created.9
representing
matter
client
fact that
its
The court shields the
a mat-
“substantially related” to
which is
much as once
BZA
so
decision the
did not
(case
transaction)
the at-
for which
ter
related,”
“substantially
mention the term
while
torney
responsibility
had substantial
it,
though the court
apply
no let alone
even
attorney.
one has
Unless
test” in
correctly says it is the “ultimate
governmen-
legal
at all of
ethics and
sense
the BZA
evaluated the
this case. So
never
is a
reasonable
integrity,
perfectly
tal
standpoint.
legal
from the
This is as far
evidence
correct
restriction.
and workable
”
(en
Door,
(D.C.1982)
rules on
"Revolving
to construction of the court's own
doubt about the
two find-
ible error
See SEC
ings
materiality
either. The
of it is
Corp., supra,
another
Chenery
these: facts, transactions “same events ... [and] events, facts, Neither the same nor proceedings. in the three Nor at issue transactions were in the three at issue any common core of relevant facts or does proceedings. any Nor does common principles render the matter identical.” principles core relevant ren- facts reviewing (Paragraph appellate seriously An court der the matter identical.
25; added.) emphasis finding question that would have to wheth- the BZA could in all seriousness con- er all, opinion First of as the court’s ac clude it was not a “relevant fact” that Carr knowledges, requirement there is no of law times, party the same at all and there that the “matter” must be found be proper- were involved at all times the same “identical,” says. as the Board The BZA’s requiring ty, building, say nothing application of a standard strict the same identity Yet, of issues was a serious error that specific purpose. agency same misunderstanding fatal demonstrated a incredibly no “common found there was standard, appropriate ethical a stan involving core of relevant facts.” a case only requires party seeking dard that transaction, can no a real estate there be disqualification prove prior that important core of facts than “same more present representations substantially building,12 party, property, same same Corp. related. T.C. Theatre v. Warner pertinent specific purpose” in all the Pictures, Inc., F.Supp. Brothers majority opinion in transactions. Even (S.D.N.Y.1953); see also Trone v. important there was an this case concludes (9th Cir.1980) Smith, 621 F.2d proceed- overlap” pertinent “factual (substantial relationship test does not re 30.) surely This ings. (Majority opinion at quire representations in two the issues by the rejection as a frontal has to be taken identical). dispute There is no whatso finding there was of the BZA’s point, in this case on this ever the court This made not a common core of facts. viz., the le “substantially related” is conclusion, mandatory, yet, in its reversal gal application in this case. test for by stat- blithely itself the court contradicts time, Nowhere, any does the Board evidence to there substantial findings mention the its so much as even finding the facts support BZA’s related,” ap- “substantially term let alone way connect- not “in and issues were legally ply it as the ultimate test as it was This is an obsti- ed.” That could not be. because, required to It realistical- do. was responsi- neglect of the court’s review nate likely appellate court ly, it was that the bility. prob- only rarely encounter ethical that “the fact that The Board next finds in- “identical matters” were lems where involved the same “substantially that the related” test volved an identi- to create connection give as to the rule actual was created so sufficient three matters ty and render the issues Having applied wrong ul- significance. ’ ” 26; (Paragraph ‘the same matter. case, viz., timate test added.) standard, major agency, emphasis Here are two “identical” without First, finding. there more, major and revers- errors committed another respects. building” building, Naturally, referring in all "same the same identical is not intended that it was *28 obviously no issue as to late court bent on a workman-like review the fact that the property was case. involved this administrative is, by itself, sufficient to create an “iden- (Carr) developer planning Here is a a tity of rendering issues” the three mat- particular This development profit. for ters the “same Secondly, matter.” the preliminary effort in court succeeded in Board does comprehend question. the raising proposed the building the question presence The is whether resulting from 60 feet to 90 in three feet— the “same property” ais factor of materi- building. more Here stories on this significance al whether it is “a suffi- —not concluding BZA sophisticated have the it is cient connection to an identity create a that this “coincidental fact” successful issues and render the three matters as litigation larger development” “allows ” the ‘same Furthermore, matter.’ no- The parking.” developer and “thus more where does the BZA make an affirmative was not in court for an intellectual exercise finding concerning the fact there prove city agency “arbitrary was always (the was party the same most im- restricting capricious” building single connection). portant height. developer 60 feet went to profitability court to increase the paragraph findings The next and final obtaining proposed building by more mar- 27) (Paragraph eye-opener: is an scarcely space. ketable It “coinciden- Board finds that coincidental larger tal” that “a the result allowed devel- that the result of decision fact opment.” That was reason for institut- Superior larger develop- Court allows ing proceeding. parking ment and thus more the site finding goes But reveals what this is also not to create a “same sufficient multiple root of the reversible errors in this connection_(Emphasis matter’’ add- case. The BZA its fact-find- misconceived ed.) case function in this because it mani- finding devastating This reveals a miscon- festly sup- what it did not understand ception by fact-finding of its Board posed looking Legal for. to be ethical Yet, mission in this the court case. does problems from matters of stem economics major finding deal with this defective In not intellectual exercises. cases where of fact. lawyers have “switched are found to sides” with, begin To the Board was there re- unethically, primarily not done it was ferring equity brought by action winning legal argument, the sake of developer (Carr) Superior Court to necessary though this have been building height from 60 raise the feet to 90 invariably, step. essentially it was Almost successful, feet, inevitably which reason—for the rooted in a financial law strong securing an in- provide a basis problems firm Ethical lawyer. and for the parking spaces crease the number normally arising from conduct out of arise finds that this “coinci- needed. The Board monetary incentives. provides fact” no basis to infer a
dental findings in A the BZA this case review of matter” connection. the defen- “same understanding lack shows a serious posture permeates the BZA sive ap- From all question. the ethical findings in no evidence of materi- this not understand that pears, the Board did significance ever strikes Board as a al issues in the the same the lack of Superior on the “same matter issue.”13 Court and injunction proceeding “connection” parking proceed- finding exception special let us consider what actu- But by no means control- ing in the BZA was ally says appel- it reveals to an and what again, a matter of law. no Still there is indication of the ultimate test "substantially related" Board’s awareness court, ling.14 ignored no conceding The Board the crucial fact made bones about party seeking all that it was the same connection. obvious density times increase marketable public hearing At the before the BZA on space building in the same exception application, economic factors—and —the Hearing commented: Examiner sequently neglected to make affirmative doing you want to because [Y]ou findings on these factors. your you sell condominium units *29 If, example, Attorney represented A you if [you] know can sell them easier Corporation in X a trial of parking spaces have those with them as for violation of the antitrust laws and was opposed having parking them without successful; Attorney appears and A later spaces. Corpo- representing in court then the same responded: Counsel for Oliver Carr subsequent pro- ration X in a divestiture very marketing important It is from a ceeding, consideration is the first ethical standpoint. There is no doubt about Corporation par- X would be it.... proceedings. That the divesti- ty both legal later, proceedings ture had some different witness Robert Carr admitted: Still by no means issues would be relevant but planned include 157 always have We ap- determinative. These issues must be per spaces parking space each con- [one proached understanding pro- with the project apply dominum and unit] govern- tection interest and approval Board later]. [for integrity principal consider- mental are the for Oliver T. argument, At oral counsel ations, This is just remote factors. Carr, Jr., al., in answer to a et stated appearance propriety, like the why the question court as from the contexts, appearance justice in other relationship between there is a direct must be at the root of the Canon. building’s height and addi- increase Lastly, that there was the Board finds parking: tional present in the two earlier “no information question directly your answer [T]o —is proceedings aided the which would have increase relationship there a between an applicant subject cases before park building more height of a 27). (Paragraph The demonstra- Board.” obviously yes, the answer is think—I (a) that: this was a new ble facts are are you units you get more because zoning concept jurisdiction; in this novel get parking.... likely to more more than (60 (b) space upstairs and more residential any doubt about there is I don’t think height) feet in means additional feet to 90 that.[15] parking space is needed downstairs. car there BZA found nevertheless height increase and additional between connection whatsoever was no together. tied were is more seri- But proceedings. two what review, the ulti- purpose For the of this plainly errone- accepts that ous—this BZA finding in this case is the mate of fact finding of fact. ous ultimate pertinent proceedings were finding that the there illustrate, states the court To the view of way This is “in no connected.” say to a reasonable way is no one can 4), and this is (Brief for Amicus at the Bar height litigation, that in 1975 certainty striking It is a of the dissent. the view issues, constitutional Carr, premised only on at the that even Mr. thing in this case number Carr, bearing on the had a direct before hearing, BZA and counsel hearing Curiae, division argument before the 15. Oral Committee See Brief for Amicus Bar Columbia Legal District of this case. Ethics of the at 12. Amicus] Brief for [hereinafter dwelling units parking spaces “revolving dard matter of the door” would be (Emphasis Carr entitled.” Washington, add- standard in D.C. The Bar ed.) urged the mindful court to be of this con- sideration: all, related, First of Ias both Mr. Avoiding appearance impropriety in his testimony Carr the BZA before goes very legitimacy heart of the court, Mr. Carr’s when before the of the rule in our society: of law obtaining affirmed that more on the building people justice faith must have can resulted in economic need for through parking spaces. more be obtained our system. It plain would seem If, Responsibility that the Code of two “connected.” Professional EC sidering (1983). reason, 9-1 say this court can For this the commit now constitutional height litigation issues,” premised be an only indi- “on el tee majority agrees with the [16] the need emphasis “scrupu pan of why cation there is a fundamental differ- lous care to appearance avoid *30 viewpoints in ence the majority impropriety.” between and the dissent in plain this case. The fact (Brief 10; for Amicus at Curiae citations prevailing on the constitutional is- omitted.) procedural sue was but the vehicle for ob- This seems to to be a me fair statement taining density more space of marketable underlying of the purpose of the Canon we building. purposes For the of this aware, are considering. The Bar is on the case, litigation “premised” was hand, reading other too broad is a desire density to increase the given standard, to that might ethical it space. marketable The means used was encourage other proceedings counsel in “to proceeding raising the constitutional harass, delay upon divert or decisions out, issue. As the points Bar merits ...” unfounded motions to dis- avenues used are controlling signifi- not of qualify. Id. cance. It is more importantly the economic problem To reach a balance this factors. suggests Bar that: Yet, the proceedings Board concludes the [Wjhere pertain single transactions to a “in way were no connected” when it is objective involve plain closely to see were connected. and the party, same concerns If there is an explanation egre- for this about fair administration of law usu gious error in finding the ultimate of fact ally support will a determination that the case, in this it must be Board part transactions of the same are matt simply did not understand its mission. In er.[17] ignoring fact-finding case, in errors this Id. at 10-11. this court shirks responsibility. its review spectators. are not We We are here to do majority rejects ap- The this fair-minded job appellate in which review becomes an proach problem, though I to the find it appellate findings court. The crucial quite appealing. It is a sensible standard. fatally defective, and this looks the but, It engage syrupy does not in rhetoric way. other rather, gets to earth on the issue. down majority rejects “single But the the Bar’s The Ethical Standard objective” vague -criteria “too as wood- majority opinion rejects quite unnecessary our en.” I think Bar’s that was uplifting practical effort to secure an ethical stan- because it is It definitive. referring prior Incidentally, again, The Bar was it be noted once there will opinion finding of the division this the BZA made no affirmative whatsoev- in necessarily presence vacated when the court went en er on the in this case of the "same party, property” factors. banc. Bar, confidence the fair administration “fine ratiocinations.” avoids Bar, there brief, Consequently, says our supplemental later elaborated on law.”19 its “ care to avoid “single objective.” ‘scrupulous It stated that need for the term is a ” (Brief impropriety.’ development any appearance in real estate the term was 10) goal (quoting as broad as the Motors not intended be a for Amicus at General York, “general development” of an economic 501 F.2d Corp. City v. Newof meant, Bar, says (2d Cir.1974))(emphasis original). area. The term was I objec- pointed to be directed toward a more forthright statement agree with the Bar’s quite apparent It is case that tive. should of what the ethical standard be specific objective party” of the “same jurisdiction. This standard does not proceedings in these at all times to the attor- from the issue of whether stem density of the marketable increase away from the ney did or did not take sufficiently space building, narrow (whatev- information” government “useful test, specific objective. meet the Bar’s To be)20 being applied er that later objective” hardly “single need The crucial con- private practice. case in as, larger example, to narrow obtain is that the “useful information” sideration or different door knobs for elevators successfully out of the requirement writes building in each of the three “transactions” rule, viz., heart of the ethical equation the (Brief case; nor, put it in this as the Bar In- conception impropriety. public’s 19), need it have related for Amicus stead, requires a a test which substitutes though the BZA mis- always parking, litigation to piece of collateral substantial takenly thought so.18 infor- was “useful determine there court, contrast, According majority employed. the essence of mation” *31 ethical opinion proof in case in relation to the there was an “actual requires it that 15, (See majority supra standard is: note impropriety.” requiring reality, In the court (as opinion). distinct [O]nly specific information This is a rewrite proof a misfeasance. general agency expertise or con tacts) lawyer of the Canon. government former that a matter is may had access to one lawyers consider The concern that subsequent in a mat likely to be useful present to an conduct will appearance their ter, possibility will there be a reasonable (the pri public) is the independent observer that DR particular improprieties im special 9 has mary reason that Canon (Em (B) is intended to forestall. 9-101 govern of former context portance added.) phasis perception public’s attorneys.21 The ment Majority opinion at 23. govern particularly important where repre attorneys “switch sides” ment view, however, Bar is that our my It is subsequent pro in a interests sent adverse opposing in the view eminently correct preser ceeding. It has held public been 9 is unique to Canon the “interest had substan- he 5, matter in which tion with of the BZA deci- paragraphs 9 and 11 18. See leaving, to prior since responsibility to his tial sion. appear- give employment accept recognizes 10. The Bar for Amicus at Brief exists. EC impropriety if none even ance of public interest and there is a second also that added.) (emphasis 9-3 ability government’s hire "tal- this is that the attorneys” well-qualified should not ented and special niche for former 9 creates 21.Canon with reason crippled. But the Bar concluded be 9-101(B). Fur- attorneys. DR government thermore, See screening provision now the moderate that with public ser- as of their status because 9-102, danger impairing any potential in DR vants, subject ethical to additional dissipated. governmental interest is now potential abuse of prevent straints in order 22.) (Brief for Amicus 9-10 9-3; et 207 public § 18 U.S.C. office. See EC (1970). say seq. this: our "Ethical Consideration” employment, public lawyer leaves ... After employment accept in connec- he should
71
public
11,
11, 13,
vation of
scrupulous
14,
trust
(1954)
S.Ct.
L.Ed. 11
justice,
administration of
integri
and in the
added));
see also Schweiker v.
(emphasis
bar,
ty of the
disqualification
mandate
even McClure,
188, 196,
1665,
456 U.S.
102 S.Ct.
in those instances
govern
where a former
1670,
(1982)
all sorts of key case,” is the Saying “it to this under conducted different docket num- court in case holds that: bers, form, in some or different which all specific (as [O]nly if information distinct single underlying arise from a set of agency expertise general or con facts, circumstances, or transactions. tracts) government lawyer a former view, it is [underlying] our factual had access to one matter is pleadings between or relation various subsequent likely to be mat useful claims which determines whether ter, possibility there be a reasonable will constitute matter. particular improprieties that DR Opinion (emphasis Bar Ethics D.C. No. 92 (Em (B) is intended to 9-101 forestall. added). added; omitted.) phasis footnote the BZA This did not understand. test, says which this court This now puts The Bar in its brief it to case,” requires firm key “the to this a law way: attorney previ- to determine whether its — government attorney former should A ously government attorney access —had represent, ... or advise a consult government attorney as a to information concerning property project person “likely to be which was in a subse- useful attorney op- if while added.) Ap- (Emphasis quent matter.” person posed or advised that same re- (1) all parently, decider must examine practical objec- his or her garding the former the information regarding that same tives access; attorney gained project.... (2) there was infor- determine whether (Brief 13.) for Amicus at “likely useful mation in a sub- [the ] *34 added.) (Emphasis This sequent matter.” it fits agree, I and it seems evident that hazy question for this ethical and is a test ques- to squarely. open case It is not require to likely litigation extensive will that or the two attor- tion one other of the prove one is able to varying opposed determine whether neys at times advised its infan- to the building project on this “useful information” was available Carr government attorney. says, If impropriety. former And this is the court I says key what the court “the to this a reason- agree, enough there is here “for person case.” Mitchell able infer that Iverson attorneys Murphy, and C. Francis while case, Translated into this it should not District, may have had access to infor- the firm ini- necessary have been for the law height litigation mation from the and the tially to discover what information two rights air condominium discussions that upon attorneys came to, legally be could relevant otherwise then determine such in- in, special exception useful case at is- would be formation “useful” here,” inevitably enough sue then there proceeding. It readily apparent was public here without more for a reasonable “parking” proceeding still another was perception impropriety. This is after all attempt to increase density of market- proceeding. not a criminal We are here space building by able in the same dealing relating with an ethical standard property There thus owner. a public perception of the administration relationship” pro- “substantial between the justice. dealing And we are a ceedings going far The firm back. should problem readily that is avoided the use assigned have a different screening of the moderate device in the law case, particularly not a deci- horrendous firm. If sion. one were disenchanted with the “revolving door” ethics there canon of is not of the But that the court’s view scarcely way be more effective in- question. The court’s is that the view smothering require it than to now simply I ference to which referred is have court’s “useful information” test. findings enough to cause a review of BZA there to determine whether important It is realize what court So, in actually anything improper. order to doing in “fine process is here this the then turns to the determine court opinion. ratiocinations” of its The court BZA, fatally findings of the swal- defective says: whole, them no matter how indiscrimi- lows example, In the we are nate, proceeds to conclude that the three land use trans- satisfied issue vanishes. ethical directed actions at the same unique, relatively small CR standard, The court’s view of the ethical zone, involving T. Carr and the Oliver specifically grafting more District Columbia (confidential informa- “useful information” instance, provide each tion) properly more test onto Canon 9 is fac- sufficient person to overlap tual a reasonable for a case when is a “vicarious test there for Iverson Mitchell and C. mean, involved; I disqualification” by that infer Murphy, attorneys Francis while disqualified if a case where the firm is law District, have had access disqualified. of its But one litigation from the protec- information and the air test is too the “useful information” rights discus- condominium jurisdiction in this where we tive to, sions could relevant legally heavy screening provision avoids in, special excep- or otherwise pres- useful against firm. The the law sanction (Emphasis tion case at issue add- here. re- screening provision should ence of the ed.) it is the Canon as quire a construction of of im- appearance avoid written —“to That conclusion should have the court i.e., reasonable enough propriety,” avoid a the ethical issue. been resolve impropriety. The necessarily perception means is What that statement public perception pay realize it must more attention that there is a should reasonable (Brief 19.) opinion resting against intros- a court on "fine ratioci- for Amicus at The Bar was warning pective diplomatically in its brief in nations.” *35 longer ex- public no perception consequence reasonable cases. when ethical But stemming issues The “revolving screening provision. from door” are ists due the before it. Those issues have the issue court, however, essentially additional the views problems govern- factor of directed toward severe consequences if were still as as the integrity. mental past. as the were According jurisdic- to the new rule in this at the underlying in views is This conflict being court, tion today by announced the difference fundamental between root of the though appearance even there is an of im- The concern the Bar. Bar’s court and propriety, the firm may properly ig- law perception. The is with a reasonable nore this the firm believes the ignores largely court this consideration and question did actually not take “useful excessively of the solicitous law firms. (whatever be) away information” viewpoint We in favor the dissent government position. from the The court Bar. satisfactorily does not define “useful infor- What all down to is that this boils say except to it mation” does not include rejecting enlightened ethical standard expertise “agency and contacts.” How this Bar, proposed by presenting our arewe an reality distinguished is in from “useful in- rebuff, unnecessary of support, instead apparent. formation” not This illus- legal profession city. folly trates the of the court’s “useful infor- being grafted mation” test now onto the done, Before Canon. this was the Canon L’Envoi specifically entirely “appear- to the by There is a serious the court abdication impropriety.” ance of Though in this in its function. case review This is fundamental conflict with the concern, enough that is court cause proposed by
test propos- the Bar. Bar The rejects then our Bar’s effort to initiate a worldly es this test: public interest ethical standard re- oriented [Wjhere pertain single transactions ato “revolving lating door” between objective involve private prac- employment and and the party, public concerns especially important tice. Canon This the fair about administration of law usu- has particular because it effect ally support will that the a determination integrity of the executive branch part transactions are of the same matter. incompre- government. seat of It is to me (Brief 10-11.) for Amicus at appellate an court would de- hensible that readily apparent It is Bar that the edifying cline an standard ethics philosophical the court have a difference in upon urged by its own Bar. court viewpoints on this issue of ethics. The court was the Bar that assured adopts something puni- court akin to a nothing proposed there is its inter- about (misfeasance) approach tive test and the pretation lawyer that inhibits recruitment purely question. Bar views it as a ethical government; that it aspirational. The Bar’s outlook is The unreasonably practitioners. restrict punitive approaches though court it as enough Even this assurance was Yet, screening were sanction involved. speculate only court. One can provision just allay intended to those court somehow viewed interest economically punitive fears and remove a being from inter- law firms as different financially harsh sanction. say give est of Bar. I one must does feeling majority uneasy to read approaches question opinion court should not our though consequences the economic read “broadly enough Canon of Ethics grave law firm were in the manner of ... solely disqualification require disqualification entire vicarious law on the basis perhaps unseemly appearances.” (Emphasis firm additional *36 added.) thought Specifically, appears I the majority should if the to wink specific at the ethical appearance “unseemly,” is re- consideration we would involved, lawyer leaving public here that a attorney quire law firm screen the to the employment accept employ- “should not causing this consequence undesirable in ment connection with in matter is step substitute another —a responsibility pri- he had substantial enough. moderate leaving [government service], his or to put As learned for the it to counsel Bar accept employment give to since would the argument the court en banc in oral while if appearance impropriety of even none ex- adoption im- urging “appearance of the lawyers represented ists.” The here the test, propriety” the rule do is “what should developer District at the time the had ob- create” an “assurance of honest adminis- judicial ruling a on the tained favorable not too surely tration of the law.” That is Westbridge and then subse- of us much to ask of the court. For those quently developer he represented the when dissent, by an appeal in it is our Bar which ruling a from the Board obtained favorable not turn down. Zoning Adjustment of the District irony is a in the whole There certain spaces for additional Columbia for Ordinarily, apt to affair. the Bar is be obviously created Westbridge. the This being overly protective of its criticized for if appearance impropriety —even But here members matters of ethics. none existed. urging is the court reasonable Bar on to blink appears majority high-minded ethical standard to straight-forward approach recommended if it neces- rejects court it —almost as were Legal Bar’s this court Committee sary court from protect for the the Bar amicus curiae as that: Ethics this case grounded itself in economic on matter appearance impropriety Avoiding the There considerations local law firms. of law goes very of the rule heart wry decision. is bit of humor this must have society: people in our always day through another and another There can be obtained justice faith that way of case. Decisions such as this have a legal system. our judicial the Bar enlightened public interest arise field grow living court before indifferent, a short feet legal may then rule, will long get ethics. tide which life. not be and the abreast another to once successful If the Bar in concrete. next opportunity will again urge its flowing in the time historical does not perhaps coaxing If so, cern about Of about the fair and the same tions objective support a determination that course Where [*] there transactions part and involve the fair administration [*] administration [*] party, substantial pertain # public concerns matter. the transac- [*] public con- of law will to a lawof single [*] of the West- in the matter lawyers when Retired, Judge, dis- KERN, Associate during such de- bridge development switch senting: Dis- representation of the velopment from Westbridge representation trict of two attor- majority’s treatment Hence, Committee developer. the Bar switching employ neys allay upon court properly this called Corporation Counsel’s of Columbia District enforcing appli- public such concern major employed by office to the law firm consideration cable canon and ethical concerning antagonist of the District call. not heed the did Westbridge proper- development nod, Eugene Finally, majority appears ty necessarily brings to mind remand Blynk- dozing, charming “Wynken, while the Board lullaby, Field’s wrong test applied case first en and Nod.” allay determining sary whether the law firm violated clarification concern Canons, viz., the Board considered over administration of the fair the law *37 lawyers worked on the “same” which of this case necessarily the decision or “identical” rather matter than whether raises. “substantially worked on related”
matters, Board, and then the compounding mistake,
its findings initial rendered crucial
of fact concededly any support without evidence, viz., presented issues “[T]he special exception proceeding [seek- parking more Westbridge] for the way
in no height litigation connected [seeking higher building Westbridge] MURCHISON, Bradley Appellant, facts, events, ... Neither the same nor v. transactions were at issue in ... [these] STATES, Appellee. UNITED proceedings.”1 Surely, this court cannot dodge statutory responsibility its to review No. 83-1386. agency rulings by limply administrative de- Appeals. District of Columbia Court of ferring to agency applies the incor- rect test findings and then makes which all Argued 1984. Nov. agree are unsupportable. Decided Dec. 1984. aside, Poetry legal profession has continuously wondered and worried about opinion, by polls, low measured public.
which it is majority held
by its decision does nothing here to en- public’s
hance the esteem profes- low
sion. The court tells citizens of the
District of Columbia the “law” is: appearance
There is impropriety, no
hence, no violation of ethical rules when
lawyers of Corporation Counsel’s Of-
fice opposed developer’s request who
enlarge Westbridge then turn around representing members of the firm
developer request his to in-
crease Westbridge. for the District,
The citizens of the under these
circumstances, surely will echo Mr. Bum- pungent
ble’s characterization of that, supposes
“law”: “If the law the law
is a and the I ass—a idiot ... worst wish eye may opened by law is that his
experience by experience.”2 —
I only hope experience can and our
ethically will sensitive Bar effect the neces- But, petitioner obviously yes counsel for conceded to this ... ... I don’t answer is during argument of this case: oral think there is about that. doubt relationship [I]s there a between an increase building parking!?] Charles Oliver of a more Dickens, Twist, ch. 51.