Some Libyans blew up a
commercial US airplane. The US government investigated and went after
those responsible.
At the time, Sofer was a
legal advisor for the US State Department, and was privy to some
information about the bombing, including classified information.
Sofer may have been
involved in the State Department's response to discovery orders made by
the airline with regards to civil litigation resulting from the bombing.
Sofer claimed that while he
was State Department, the focus of the investigation was on Syria and/or
Iran, and not Libya.
Sofer quit the State
Department and went to a private law firm, HH&R.
Coincidentally, HH&R was
hired to represent the Libyan government in settlement negotiations
related to the bombing.
HH&R's representation
was limited to negotiations about where to hold the trial of accused
Libyan citizens, it did not involve representation as to the merits of
the case.
HH&R sold their services
partly on the basis of having former State Department lawyers on staff.
HH&R limited their
representation to legal work and not lobbying so they wouldn't fall under
the Foreign Agents Registration Act.
When the information about
their representation became public, HH&R withdrew representation.
DC Bar Counsel investigated
Sofer and eventually charged him with a violation of Rule 1.11(a).
Rule 1.11(a) prohibits former government lawyers from
representing a party in connection with a matter that is substantially
related to a matter in which they participated while working
for the government.
Rule 1.11(g) defines a 'matter' as "any judicial or
other proceeding application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge,
accusation, arrest, or other particular matter involving a specific party
or parties."
A Hearing Committee found
Sofer guilty of violating Rule 1.11(a) and gave him an informal admonition for his conduct. He
appealed.
The Hearing Committee
concluded that Sofer participated personally and substantially while at
State Department in the response to the bombing investigation and the
establishment of liability for it.
Sofer unsuccessfully agued
that the scope of representation that he was providing to Libya was
fundamentally different from what he was privy to at State Department,
and therefore there was no conflict of interest.
Sofer unsuccessfully argued
that since no one at State Department knew at the time that the Libyans
were responsible, how could there be a conflict of interest?
However, the investigation
involved the same set of facts so it was legally still the same matter.
The DC Appellate Court
affirmed.
"Rule 1.11(a) does not allow a government lawyer to be
briefed in the course of his official duties about a particular,
sensitive investigation...provide substantial and personal legal assistance
concerning the government's efforts, then leave the government and
represent a suspect in the same investigation.
