CHAIR'S MESSAGE By Patrick K. Arey A Word of Thanks As the "year" draws to a close, I must first thank all those without whose help and support the Chair's job would be a heavy and impossible burden: my wife Pamela and our children, Jackie and Lisa; the Section's Staff; Section officers Dan, Mary, and Patty; other members of the Executive Committee and Council; and other officers who make a superb team and are the true leadership of this Section. These people are the future leaders of this Section. We can look to a bright future with them at the helm as we continue our voyage into the future. A Call to Action As was described in the last newsletter, the Ethics 2000 Commission of the ABA has recommended some fundamental changes to the rules governing conflicts and prohibitions on representation by governmental lawyers. The Section's leadership has serious concerns about these new limitations, which Disqualify representing a private client contrary to the government's position in any matter "substantially related" to one on which the lawyer worked while in government. This is a major change from the current limitation which only applies to "particular matters." Prohibit a current government lawyer from representing another government agency when a private lawyer could not so represent private clients. The Section's leaders strongly oppose these changes not only because they are unnecessary but also because they will inflict significant harm on the profession by having the unintended and unanticipated effect of limiting movement of lawyers between the public/governmental and private sectors, to the detriment of the public. It will also impose a severe deterrent upon recruiting of experienced lawyers to serve the government. That is not in the public interest. We believe that the existing rules have worked well and strike an appropriate and considered balance between private and public potential conflicts of interests. Understanding and insight into the operation of government and its agencies can be an important tool in carrying out and enforcing laws and regulations through the expertise and comprehension thus acquired. Similarly, experience in the private sector can be carried into public service with equal benefit. Private lawyers may be reluctant to accept government positions, especially policy positions, knowing that ethical rules may effectively prohibit practice in their specialty when they return to private practice. Similarly, a government career lawyer may not be able to move between government employers because of the limitations on the scope of matters in which she may participate. We fear that this proposal which will fundamentally extend the definition of those matters in which a public/governmental lawyer may not participate after changing employers will similarly impair the ability of governments and private clients alike to hire attorneys with specialized experience, thus depriving them of the ability to obtain expert legal advice. We also fear that the proposed changes will have the unanticipated effect of creating two distinct bars, one consisting of private practitioners and the other consisting of public/government-employed lawyers. This separation, in the long run, could lead to differing attitudes and viewpoints which are adverse, and perhaps even hostile. While we may differ over the wisdom of ABA positions on various issues in the past (and will doubtlessly continue to do so in the future), I think all the Section's leaders, regardless of viewpoint, share the same concerns about the lack of wisdom or foresight of certain members of the Ethics 2000 Commission in proposing these changes. We think that the proposed changes unnecessarily extending the scope of potential conflicts of interest regarding public attorneys violates the Commission's own statement that it did not set out to fix rules that were not broken. The public sector operates in a much more open manner (e.g., FOIA and Open Meetings requirements) in carrying out the public's business than does the private sector in its competitive arena. The Commission should have followed Thomas Jefferson's statement (quoted in its report) that "moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects." The Section will actively oppose these proposed rule changes when they are presented to the ABA House of Delegates in August. Together with other sections and divisions of the ABA, we are actively lobbying against these changes. We are calling upon our members to actively oppose the Commission's proposals in this area. If you share this view, please contact members of the ABA's House of Delegates from your state or those other delegates you know. Our Section's staff, Jackie Baker (jlbaker@staff.abanet.org) or Lisa Allen (allenli@staff.abanet.org) can provide you with more information or names of delegates from your state. You may also call them at 312-988-5652. When the ABA takes positions on issues with which we disagree, we may sometimes rationalize our disagreement on the grounds that the ABA's position may have little or no effect on the policy or issue at stake. This issue is different, as adoption of the Commission's report would doubtless lead many states to follow this lead in modifying their rules of professional conduct. Thus, we have decided to fight within the ABA to avoid adoption of a standard for which there is no need and which after careful examination we believe will impose significant harm to the profession and those clients we serve. Whether we win or lose this battle, when the dust settles, we can tell our children and grandchildren that we did not sit idly by when an important professional issue arose, but rather, we acted responsibly in the best interests of this profession and our clients whom we are proud to represent. Patrick K. Arey is Chair of the Section and practices law with Abramoff, Neuberger and Linder LLP in Baltimore, Maryland.