Must a law firm screen a nonlawyer it hires who used to work for the government on a related matter, and what can the firm ask them?
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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 285 (adopted November 1998) responded to a federal ethics official concerned that law firms hiring nonlawyer former government employees (as staff or consultants) might expose confidential government information. The committee stressed that the Rules do not apply directly to nonlawyers, but lawyers are responsible under Rule 5.3 for ensuring their nonlawyer assistants' conduct is compatible with the lawyer's professional obligations, and under Rule 8.4(a) may not violate the Rules through the acts of another.
Reasoning by analogy to the screening allowed when nonlawyers (paralegals, secretaries, investigators) move between law firms, the committee concluded that a firm must screen a nonlawyer former government employee from a matter when the person worked directly with government attorneys who were representing a client and the matter is the same as, or substantially related to, one the firm now handles. That conclusion rests on the underlying lawyer-client relationship: where the former employee did not work with government lawyers but was merely exposed to confidential government information, Rule 1.6 does not apply. And neither a lawyer nor a nonlawyer is disqualified simply for having participated in government policy making or being familiar with an agency, because general rule-making and policy work ordinarily are not a "matter," and "substantially related" turns on specific information, not general agency expertise (citing Brown v. D.C. Board of Zoning Adjustment).
Separately, the committee held that Rule 4.4 (respect for third parties' rights), reinforced by Rule 8.4, bars the firm from inducing the former government employee to reveal information the lawyer knows is protected by statute or a well-established common-law privilege, even where no lawyer-client screening obligation applies. The committee noted it was not addressing the different rules (Rules 1.6(g), 1.10(b)) that would govern if the former government employee were now a lawyer.
Currency note
This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Must a firm screen a nonlawyer former government employee?
A: The opinion concluded yes, when the person worked directly with government lawyers representing a client and the firm now handles the same or a substantially related matter; the firm must screen the person from that matter.
Q: Is screening required if the person only had general agency exposure or did policy work?
A: The opinion concluded no. Without an underlying lawyer-client relationship, Rule 1.6 does not apply, and general agency expertise or participation in policy making does not disqualify a lawyer or nonlawyer.
Q: What may the firm not ask the former government employee?
A: The opinion held that Rules 4.4 and 8.4 bar the firm from inducing the person to reveal information the lawyer knows is protected by statute or a well-established common-law privilege.
Q: What rules govern if the former government employee is now a lawyer?
A: The opinion expressly did not address that situation, noting Rules 1.6(g) and 1.10(b) would apply to a former government lawyer rather than the nonlawyer analysis here.
Background and rules framework
The opinion interpreted D.C. Rule 5.3 (a lawyer's responsibility for nonlawyer assistants), Rule 8.4(a) (misconduct through the acts of another), Rule 1.11 (successive government and private employment, and screening) by analogy, and Rule 4.4 (respect for third parties' rights). It relied on ABA Informal Opinion 88-1526 and the committee's Opinion 227 on screening migratory nonlawyers, and on Brown v. D.C. Board of Zoning Adjustment for the "substantially related" standard.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 5.3 / Model Rule 5.3 (responsibilities for nonlawyer assistants)
- D.C. RPC 1.11 / Model Rule 1.11 (successive government and private employment; screening)
- D.C. RPC 4.4, 8.4 / Model Rules 4.4, 8.4 (third parties' rights; misconduct)
Cases:
- Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc) ("substantially related" turns on specific information)
- Camden v. Maryland, 910 F. Supp. 1115 (D. Md. 1996) (disqualification for exposure to confidential information)
Other opinions cited:
- D.C. Ethics Opinions 227, 279 (1998)
- ABA Informal Op. 88-1526 (1988); ABA Formal Op. 91-359 (1991); ABA Formal Op. 97-408 (1997)
See also
- DC Ethics Op. 313: Same Client After Gov't Service
- ABA Formal Op. 509: Confidential Gov't Information
- ABA Formal Op. 506: Nonlawyer Assistants & Intake
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-285
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