Almost four years ago two former government lawyers posed a simple question to the D.C. Bar's Ethics committee: Could they work for a company, which was trying to renew a federal contract, that each of them had something to do with while working for Uncle Sam?
The ethics committee's answer provoked shock waves that are still reveberating through Washington's legal community. For its draft opinion would have disqualified entire Washington law firm from a case if one member had played a major role in it while working for the government.
This was the boldest step ever taken by an organized bar group in an effort to jam the revolving door that allows almost free movement between government and private practice. Over the years, this revolving door has drawn increasing criticism from people who say that big business has been given an unfair edge in its dealings with the government.
The other side of the argument is that going from government to private increases the amount of expertise that the lawyers bring into private business dealings-to everybody's benefit.
Since that opinion-which would have to be obeyed by all lawyers here-was drafted in July 1976, Washington's legal establishment has joined with lawyers still in government to blunt its effect. And in successive revisions-first by the ethics committee itself and now by the bar's board of governors-the original bold, restrictive step has been cut down.
"There's no question that the net effect of the board of governors has been to dilute an already diluted set of rules," said Ralph Temple, an American Civil Liberties Union attorney who is a member of the board of governors and who supports strict rules against the revolving door.
Monroe H. Freedman, the chairman of the ethics committee when the original opinion was drafted, puts it even stronger. "It's been gutted to the extent that it oils the revolving door," he said. "It's a fraud on the public."
On the other hand a past chairman of the ethics committee. William H. Allen of Covington & Burling, said some of the changes are "more realistic and more useful" than the original ethics committee opinion. He called that first draft "unduly harsh" and said it "had effects that went beyond assuring against the appearance of impropriety."
But the board of governors-in three special meetings over the past month-has made the proposed rules even moe lenient than Allen would like.
The original draft opinion would have disqualified an entire law firm from taking a case if one member of the firm played a major role in the case while on the federal payroll.
When a majority of the ethics committee refused to approve that draft opinion, it was revised to allow a firm to take a case that one member was barred from handling by following a complicated set of procedures.
These included getting waivers from the government-including one from either a judge or someone independent of the agency-and building "a Chinese Wall" around the affected attorney to keep him from both slipping inside information to his colleagues and collecting fees from the case.
On the basis of strong objections from both private and government lawyers, this draft was further weakened by ethics committee before being submitted to the bar's board of governors.
Instead of requiring the approval of the waiver by government officials uninvolved in the case, the new rules merely required that the concerned government agency approve the waiver request.
Now the board of governors has made it even less strict-going further than Allen wanted.
Its revision requires only that the law firm file affidavits with the government agency involved that a "Chinese Wall" has been built The agency has the right to object, but it does not have to give its aproval with a waiver to the law firm taking the case the way it would have in previous drafts.
The board of governors has another meeting set for next Wednesday to tie up loose ends and vote on the proposal as a whole. It will then be sent, along with all previous versions, to the D.C. Court of Appeals, which has the final say on rules governing the practice of law in Washington.
What the court will get is a record of one of the most emotionally charged debates ever held by an organized bar.
The rules could affect the financial well-being of lawyers and law firms throughout the city and, Washington attorneys say, the could give out-of-town firms not bound by D.C. Bar rules in unfair edge in getting business.
Moreover, the way the bar and the court handle the issue will help shape the public's view of the profession's ability to guard the public interest.
"I don't think the Bar can really be the best judge of where the public interest lies here," said the ACLU's Temple, who believes non-lawyers should be on the committee setting the rules.
"There's an old saying from Chinese fortune cookies," he continued, "that the man who is judge of his own case will be the winner. That's what you have here. There's too much money involved for the public to have a chance . . . to put some real restrictions on jumping from one side to the other."
Nonetheless, Temple recognizecd the real problems facing Washington lawyers trying to come to grips with the problem. He himself found great conflicts between what he believed is the need to jam the revolving door and attorney's rights to practice as they want.
"It's a real confrontation between publc good and private interest" he said. "But we have to be prepared to make sacrifies. Without sacrifices, there will be no contributions to the public good."
But Paul L. Fiedman of White & Case said the ethics committee's proposal, even as revised, "was a sledge hammer (used) to kill a fly." A former government attorney, he said the "cross fertilization" that comes from allowing lawyers to cross between government and private practice benefits the public iinterest.
And answering comments that the organized bar has to tighten its rules to appease a publc that sees evil the revolving door, the new ethics committee chairman, former Army secretary Robert Jordan of Steptoe & Johnson, said, "Obviously we can't conduct all our activities with regard to how an uninformed public will react."
Yet a member of the bar's board of governors from a top-line establishment law firm, who asked that his name not be used, said the amount of agitation in the profession over the revolving door indicates "there must be cases of conflicts that have gone unthought about."
The double within the bar, he continued, has resulted in consciousness raising among lawyers throughout the city on the issue.
Nonetheless, the debate of the board of governors showd that although Washington lawyers may be more careful in the future they are unwilling to tighten the formal rules.
"If we were debating the Ten Commandments, they would not have come out in good shape," Temple said to Florence Roiseman, another member of the board of governors, in a stage whisper during one meeting.