ABA 2024-02-28

If a lawyer learned confidential government information while in public service, when does Model Rule 1.11(c) bar the lawyer from representing a private client against the person that information concerns?

Short answer: Rule 1.11(c) applies whether the lawyer has left government or still serves (including part-time private practice), and the disqualification reaches any client the lawyer represents in private practice, public or private, who is not legally entitled to use the information. The conflict cannot be cured by consent.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

ABA Formal Opinion 509: Disqualification to Prevent Misuse of Confidential Government Information

Short answer: The opinion concludes that Model Rule 1.11(c) applies to a lawyer who acquired confidential government information while serving as a public officer or employee, whether the lawyer has since left government or remains in service (including a part-time private practice), and that the resulting disqualification reaches any client the lawyer represents in private practice, public or private, who is not legally entitled to use that information; the conflict is not consentable.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion clarifies Model Rule 1.11(c), which restricts a lawyer who has confidential government information about a person from representing a private client whose interests are adverse to that person where the information could be used to the person's material disadvantage. It resolves two ambiguities: whether the rule reaches a lawyer who is still in government service, and what "private client" means.

The opinion explains that Rule 1.11(c) is unusual: it can require disqualification adverse to any "person," not just a former client, and it protects a defined subset of information, namely information obtained under governmental authority that the government is prohibited or privileged from disclosing and that is not otherwise public. Per the opinion, "the Rule does not require that the confidential government information has been or will be used by the lawyer, only that it could be used to the material disadvantage of a person." The rule also is not limited to government legal counsel; it reaches legislators, executives, police officers, and other public officers who acquire such information.

On the timing question, the opinion contrasts paragraph (c) with paragraphs (a), (b), and (d), which expressly speak of lawyers who "formerly" or "currently" serve. Because paragraph (c) keys off when the information was acquired rather than when the private representation occurs, the opinion concludes that "the Rule does not apply exclusively to lawyers who formerly served as public officers or employees" and that "lawyers currently serving as public officers or employees are not exempt from Rule 1.11(c)." A part-time government lawyer with a private practice is therefore covered.

On the meaning of "private client," the opinion draws on Formal Opinion 342 (1975) and General Motors Corp. v. City of New York to conclude that the term "can be any client represented in the lawyer's private practice that is not legally entitled to use the confidential government information in question," whether that client is a private person or even a public entity. The opinion also notes a key limit: unlike the conflicts in Rule 1.11(a) and (d), "the conflict under Rule 1.11(c) is not consentable."

In practice

Under this opinion, a lawyer who acquired confidential government information in public service is disqualified under Rule 1.11(c) from a private-practice representation in which that information could be used to the material disadvantage of the person it concerns, and that bar applies whether the lawyer has left government or still serves. The opinion holds the disqualification turns on the lawyer's possession of the protected information and the adverse use it could enable, not on proof that the information was used, and that the parties cannot waive it by consent. The rule does not apply when a government lawyer represents a party in the lawyer's government role, or when a private-practice lawyer represents the same government entity that is legally entitled to use the information.

Common questions

Q: Does Rule 1.11(c) only apply to lawyers who have left government?

A: No. The opinion concludes the rule applies based on when the lawyer acquired the confidential government information, so it covers lawyers still in government service, including those who keep a part-time private practice.

Q: What information does the rule protect?

A: Per the opinion, information obtained under governmental authority that the government is prohibited or privileged from disclosing and that is not otherwise publicly available, such as information obtained by grand jury subpoena, search warrant, or regulatory subpoena.

Q: Does the client adverse to the protected person have to be a private individual?

A: No. The opinion reads "private client" to mean any client the lawyer represents in private practice that is not legally entitled to use the information, which can include a public entity or official.

Q: Can the affected parties consent around the disqualification?

A: No. The opinion states the Rule 1.11(c) conflict is not consentable, unlike the conflicts addressed in Rule 1.11(a) and (d).

Background and rules framework

The opinion interprets Model Rule 1.11(c) (use of confidential government information), distinguishing it from the rule's other paragraphs that govern successive and concurrent government and private employment. It reads the rule against Rule 1.6 (confidentiality), Rule 1.9(c) (former-client information), Rule 1.7 and Rule 1.11(d) (current-client and currently-serving-lawyer conflicts), and Rule 1.10 (imputation and screening). It relies on Formal Opinion 342 (1975) and federal decisions including General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974).

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.11 (government officers and employees), focus on 1.11(c)
ABA Model Rule 1.6(a) (confidentiality), 1.9(c) (former-client information)
ABA Model Rule 1.7 (current-client conflicts), 1.10 (imputation, screening)
ABA Model Rule 1.8(b), 1.12(b), 1.18 (referenced)

Cases:

General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974), scope of "private client"
Baltimore County v. Barnhart, 30 A.3d 291 (Md. Ct. Spec. App. 2011)

Other opinions cited:

ABA Formal Op. 342 (1975): interpreting "private employment" under DR 9-101(B)

Source

Landing page: ABA Formal Ethics Opinions index
Original PDF: aba-formal-opinion-509.pdf