In re Sofer
728 A.2d 625 (D.C. 1999)

  • 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.