[Third attachment to Babcock letter of December 16, 1977

Department of Justice from Acting as Counsel for the Witness
Alfred Wong and the Motion for a Protective Order for said witness
filed by Irwin Goldbloom, Special Litigation Counsel, Civil
Division, United States Department of Justice, attorney for Alfred
Wong, the Court finds:

1. That the Plaintiffs have sought to take the oral deposition of Alfred Wong, a possible witness in this action;

2. That Alfred Wong, by his attorney, has moved the Court, pursuant to Rule 26 (c) of the Federal Rules of Civil Procedure, for a protective order postponing the taking of his deposition until the Court's disposition of motions presently pending before the Court, and with the added proviso that Mr. Wong's deposition should not be required until Plaintiffs comply with 31 C. F. R. 1.10 (c), which requires an affidavit setting forth the information with respect to which the testimony of a Treasury Department officer is desired before permission to testify will be granted;

3. That the requirements of 31 C. F. R. 1.10 (c) were promulgated

to regulate the production of documents under the Freedom of Information Act and do not, therefore, regulate the testimony of persons working at the Treasury Department with respect to information not acquired in the course of official business, with the

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result that Plaintiffs are not required to submit such affidavits prior to taking the orgal deposition of Mr. Wong;

4. That the Department of Justice is supervising an investigation into alleged criminal conduct of some of the named Defendants herein and possibly others unknown to this Court. Moreover, the subject matter of such criminal investigation is related to the subject matter of this action; 5. That while there is some authority for the Department of Justice to furnish Mr. Wong or other government officials with one of its attorneys to act as his or their private counsel in this matter, such special representation will not be condoned by this Court because the Department of Justice is otherwise engaged, through other employees, in a criminal investigation of the subject matter of which is akin to the gravamen of this civil action.

WHEREFORE, by virtue of the foregoing, it is this 9th day of August, 1972,

ORDERED, that the motion to strike and disqualify Irwin Goldbloom as attorney for Alfred Wong be and hereby is granted; and it is

FURTHER ORDERED, that any noticed depositions of Mr. Wong be and hereby are postponed until such time as Mr. Wong has obtained the representation of other counsel, and until such time as such new counsel has had the opportunity to acquaint himself with this action; and it is FURTHER ORDERED, that Plaintiffs are not required to comply with the requirements of 31 C.F.R. 1.10 (c) prior to taking the oral depoition of Mr. Wong; and it is

FURTHER ORDERED, that Mr. Wong shall obtain counsel to represent im within 10 days of service of this order upon him; and it is

FURTHER ORDERED, that the United States Marshal, or his designated

eputy, shall serve this order upon Alfred Wong forthwith

Charles R. Leckey

CHARLES R. RICHEY

UNITED STATES DISTRICT JUDGE

Exhibit 29: Abourezk Letter of December 22, 1977

I appreciate your December 16, 1977, submission of answers to the
supplemental inquiries I transmitted to you on October 12, 1977.

To begin with, I wish to reassure you that the Judiciary Committee's
review of the January 19, 1977, policy statement concerns only repre-
sentation of federal employees sued in their individual capacity, not
Tort Claims Act cases. Inasmuch as the policy statement concerns
representation by Department staff counsel as well as by private counsel
in these cases, the Committee's review includes both situations. While
the Committee will focus principally on the hiring of private counsel,
information on representation by Department staff counsel in these
cases is needed for purposes of comparison. The Committee has no
intention to review the Department's statutory obligation to defend
federal employees sued in their official capacity. With this purpose
clear, the Committee would anticipate that the list of cases which has
been requested can now be provided and that selected court pleadings
in a few of these cases can then be examined.

With respect to other matters raised in my October 12th letter, your
letter does not indicate the status of the "several additional documents"
referred to in your October 4th letter which you had forwarded to
"originating divisions." Similarly you have not commented on the
Committee's request to be provided copies of ABA and OLC opinions on
ethics issues when available, formal or tentative amendments to the
policy statement when adopted, or for notification if and when any
court challenges to the policy statement arise. I would like your
assurance that these materials and information will be provided when
they become available.

Letter to Ms. Barbara Babcock

December 22, 1977

page 2

It is my understanding that a complete list of private counsel who have been retained by the Department is presently being prepared for the Committee, and that the Committee will continue to be notified if and when new private counsel are retained by the Department.

Thank you again for your assistance.

Sincerely,

James Abourezk

Chairman,

Subcommittee on Administrative

Practice and Procedure

Exhibit 31: Committee Staff Memorandum.1

STATUTORY AUTHORITY FOR

JUSTICE DEPARTMENT HIRING OF

PRIVATE COUNSEL

The present United States Code contains three sections expressly concerning the power of the heads of an executive department or the

Attorney General to employ private attorneys for the conduct of litigation
in which the United States, an agency, or employee thereof is a party
or is interested. These three sections are 5 U.S.C. 3106, 28 U.S.C. 515,
and 28 U.S.C. 543.

Section 3106 expressly prohibits the head of an "executive department or military department" from employing "an attorney or counsel for the conduct of litigation in which the United States...is interested" and requires the referral of any such litigation to the Department of Justice. The prohibition against the hiring of private legal counsel in section 3106 applies by its terms to all departments of the government including the Department of Justice. It does not, however, specify under what authority the Justice Department itself may employ such an attorney or counsel. It refers only to prohibiting employment of such counsel by any department "e 7xcept as otherwise authorized by law..."

In contrast Section 515 and 543 are laws which do expressly authorize

the Attorney General to retain or appoint private attorneys.

Section 515 (a) gives "any attorney specially appointed by the Attorney General under law... when specifically directed by the Attorney

General" the power to

conduct any kind of legal proceeding, civil or criminal,
including grand jury proceedings and proceedings before
committing magistrates, which United States attorneys
are authorized by law to conduct, whether or not he is a
resident of the district in which the porceeding is brought.

Section 515 (b) requires that "/e_7ach attorney retained under authority
of the Department of Justice...be commissioned as a special assistant

1 This memorandum was prepared by Chuck Ludlam, counsel. Subcommittee on Administrative Practice and Procedure. It was transmitted to the Congressional Research Service and General Accounting Office for comment. See exhibits 32 and 33. It is referred to as the "Opposition Memo" in the CRS memo. See exhibit 34 at p. 454. It is also referred to in exhibit 36, the GAO report, at p. 1055.