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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[Docket No. OAG 114; AG Order No. 2791-2005]

Professional Responsibility Advisory Office

AGENCY: Department of Justice.
ACTION: Final rule.
SUMMARY: This rule will amend part 0 of title 28 of the Code of Federal Regulations to reflect the establishment of the Professional Responsibility Advisory Office at the Department of Justice. The Professional Responsibility Advisory Office (PRAO) was created by the Attorney General to provide advice and guidance to Justice Department attorneys on matters involving professional responsibility. The PRAO offers training, provides informational memoranda, and issues opinions in response to individual attorney inquiries. This rule, which sets forth the PRAO's organization, mission and functions, amends the Code of FederalRegulations in order to reflect accurately the Department's internal management structure.
DATES: December 23, 2005.
FOR FURTHER INFORMATION CONTACT: Barbara Kammerman, Acting Director, Professional Responsibility Advisory Office, U.S. Department of Justice, Washington, DC Telephone (202) 514-0458.
SUPPLEMENTARY INFORMATION: Background

In 1994, the Attorney General established a Professional Responsibility Office (PRO) Program and the Professional Responsibility Advisory Board to assist Department attorneys in resolving professional responsibility issues. Over time, experience and a number of developments have emphasized the importance of creating a centralized resource for Department attorneys and PROs. Thus, on March 30, 1999, the Attorney General created the Professional Responsibility Advisory Office (PRAO) to coordinate the Department's position regarding various professional responsibility issues and to ensure that the advice and guidance provided to Department attorneys and the PROs are correct and consistent throughout the United States.

The PRAO serves several functions. It provides definitive advice to Department attorneys on issues relating to professional responsibility. It is responsible for assembling and maintaining reference materials, including the codes of ethics and relevant interpretative decisions and bar opinions of the District of Columbia and every state and territory, and for serving as a central repository for briefs and pleadings as cases arise. The PRAO provides coordination with the litigating components of the Department to defend attorneys in any disciplinary or other hearing in which it is alleged that they failed to meet their obligations under applicable rules of professional conduct. It coordinates with other Department components to conduct training for Department attorneys and client agencies to provide them with the tools to make informed judgments about matters which implicate professional responsibility issues. The PRAO serves as liaison with the state and federal bar associations in matters related to the implementation of Section 530B of title 28 of the United States Code pertaining to ethical standards for attorneys for the government, and amendments and revisions to the various rules of professional conduct. The PRAO also serves as advisory counsel on professional responsibility to the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Solicitor General, and their designees, and to the Attorney General's Advisory Committee. Nothing in the final rule shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 CFR 0.25.

Administrative Procedure Act 5 U.S.C. 553

This rule is a rule of agency organization and is therefore exempt from the notice requirement of 5 U.S.C. 553(b), and is made effective upon issuance.

Regulatory Flexibility Act

The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. A Regulatory Flexibility Analysis was not required to be prepared for this final rule since the Department was not required to publish a general notice of proposed rulemaking for this matter.

Executive Order 12866

This action has been drafted and reviewed in accordance with Executive Order 12866 Regulatory Planning and Review, § 1(b), Principles of Regulation. This rule is limited to agency organization, management and personnel as described by Executive Order 12866 § 3(d)(3) and, therefore, is not a “regulation” or “rule” as defined by its Executive Order. Accordingly, this action has not been reviewed by the Office of Management and Budget.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant a certification.

Executive Order 12988—Civil Justice Reform

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This action pertains to agency management, personnel and organizations and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 0

Government employees, Lawyers, Ethical conduct.

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509, 510, part 0 of title 28 of the Code of Federal Regulations is amended as follows: PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE 1. The authority citation for part 0 continues to read as follows: Authority:

5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

2. Part 0 is amended by adding a new subpart, V-2, to read as follows: Subpart V-2—Professional Responsibility Advisory Office
§ 0.129 Professional Responsibility Advisory Office.

(a) The Professional Responsibility Advisory Office is headed by a Director appointed by the Deputy Attorney General. The Director shall be responsible to, and report directly to, the Deputy Attorney General and shall be a member of the Senior Executive Service.

(b) The Professional Responsibility Advisory Office shall:

(1) Advise Department of Justice attorneys on specific questions involving professional responsibility, including compliance with 28 U.S.C. 530b (“Section 530B”), which requires certain federal attorneys to comply with state rules of ethics.

(2) Assist or support training and informational programs for Department attorneys and client agencies concerning Section 530B and other professional responsibility requirements, including disseminating relevant and timely information.

(3) Assemble, centralize and maintain ethics reference materials, including the codes of ethics of the District of Columbia and every state and territory, and any relevant interpretations thereof.

(4) Coordinate with the relevant litigating components of the Department to defend attorneys in any disciplinary or other proceeding where it is alleged that they failed to meet their ethical obligations, provided that the attorney made a good-faith effort to ascertain the ethics requirements and made a good-faith effort to comply with those requirements.

(5) Serve as a liaison with the state and federal bar associations in matters relating to the implementation and interpretation of Section 530B, and amendments and revisions to the various state ethics codes.

(6) Perform such other duties and assignments as deemed necessary from time to time by the Attorney General or the Deputy Attorney General.

(c) Nothing in this subpart shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 CFR 0.25.

Dated: December 15, 2005. Alberto R. Gonzales, Attorney General.