Can a former government lawyer, such as a military JAG defense counsel, keep representing the same client in the same matter after leaving government service, or does Rule 1.11 bar it?
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This page answers the general question as of 2002. 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 313 (adopted June 2002) interprets D.C. Rule 1.11, which governs successive government and private employment. A law firm asked whether the rule barred a former Navy Judge Advocate General's Corps (JAG) defense lawyer, now a civilian associate at the firm, from continuing to represent in post-trial proceedings the same Marine he had defended at court-martial. Rule 1.11(a) prohibits a lawyer from accepting "other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee."
The Committee concludes the rule does not bar the continued representation, and the analysis turns on the phrase "other employment." A JAG defense lawyer's client is the individual defendant, not the government: Rule 1.6(j) makes the agency the client of a government lawyer "unless expressly provided to the contrary by appropriate law, regulation, or order," and Navy regulations expressly provide that an assigned defense counsel has an attorney-client relationship with the individual and owes that client unfettered loyalty (32 C.F.R. § 776). Comment [38] to Rule 1.6 lists "a military lawyer representing a court-martial defendant" as an example of a government lawyer whose client is an individual.
Because the lawyer continues to represent the same client in the same matter, he is not accepting "other employment." The opinion reasons by analogy to Comment [10] to Rule 1.11, which says it is not "other employment" for a lawyer who leaves a government agency to continue representing that same agency at a new firm; the same logic applies to continuing to represent the same individual client. None of the policies behind Rule 1.11 (preventing misuse of government information, removing incentives to use government resources for later private advantage, and avoiding the appearance that public duties were influenced by hopes of private gain) is served by barring the representation, because the lawyer's client was always the individual, not the government. The opinion notes its conclusion extends to former public defenders and to former federal employees who were authorized to represent particular individuals (see 18 U.S.C. § 205).
In practice
Under the D.C. rules as they stood at the time of the opinion, the opinion concludes that a former government lawyer who, as part of government service, lawfully formed an attorney-client relationship with an individual client may continue to represent that client in the same or a substantially related matter after leaving government, because doing so is not "other employment" within Rule 1.11(a). It frames the question as turning on the identity of the lawyer's government client, not on whether the lawyer participated personally and substantially.
The opinion limits its reasoning to the situation where the government lawyer's client was the individual (such as a JAG defense counsel, public defender, or federal employee authorized to represent individuals), rather than the government itself. Because the opinion predates later rule developments, verify the current D.C. rules before relying on any specific requirement.
Common questions
Q: Can a former JAG lawyer or public defender keep representing a client they defended during government service?
A: The opinion concludes yes. Because the lawyer's client during government service was the individual, continuing to represent that same client in the same matter is not "other employment" under Rule 1.11(a), so the rule does not bar it.
Q: Why does it matter that the lawyer's client was the individual and not the government?
A: The opinion concludes the term "other employment" is the trigger for Rule 1.11. Continuing to serve the same client is not new employment; by analogy to Comment [10] (continuing to represent the same agency is not "other employment"), continuing to represent the same individual client is not either.
Q: Did the federal post-employment statute, 18 U.S.C. Section 207, change the answer?
A: The opinion notes the Navy first concluded Section 207 barred the lawyer, but the U.S. Court of Appeals for the Armed Forces reversed, holding (following United States v. Andrews) that a released JAG officer may continue to represent the accused as a civilian because the parties remained the same; the opinion reaches the same result under Rule 1.11.
Q: Do the policies behind Rule 1.11 support barring the representation here?
A: The opinion concludes no. The concerns about misusing government information or trading on public office assume the lawyer's client was the government; here the client was always the individual, so none of those concerns is implicated.
Background and rules framework
The opinion interprets D.C. Rule 1.11 (successive government and private employment), which in the District has no waiver provision and forbids accepting "other employment" in a matter the lawyer handled personally and substantially as a public officer or employee. It reads Rule 1.11 with Rule 1.6(j) (the government lawyer's client is the employing agency unless law provides otherwise) and Comment [38] to Rule 1.6 (a military lawyer representing a court-martial defendant represents the individual). The opinion notes that D.C. Rule 1.11 differs significantly from ABA Model Rule 1.11 and that "personally and substantially" is read with guidance from regulations interpreting 18 U.S.C. Section 207.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.11 / Model Rule 1.11 (successive government and private employment)
- D.C. RPC 1.6(j) and Comment [38] / Model Rule 1.6 (identity of a government lawyer's client)
Statutes:
- 18 U.S.C. Section 207 (post-employment restrictions for former federal employees)
- 18 U.S.C. Section 205 (federal employees representing others before the government)
- 32 C.F.R. Sections 776.32, 776.56 (Navy rules; assigned counsel's attorney-client relationship with the individual)
Cases:
- United States v. Andrews, 21 C.M.A. 165 (1972) (released JAG officer may continue as civilian counsel for the same accused)
- In re Sofaer, 728 A.2d 625 (D.C. 1999) ("personally and substantially" under Rule 1.11)
- Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976) (JAG legal-assistance lawyer owes a duty to the individual)
Other opinions cited:
- D.C. Ethics Opinions 16, 84, 111, 177, 297
- ABA Formal Opinions 342 (1975) and 409 (1997)
See also
- ABA Formal Op. 97-409: Ex-Government Lawyer Conflicts
- DC Ethics Op. 315: Former Government Lawyer Conflicts
- ABA Formal Op. 509: Confidential Government Information
- RI EAP Op. 2007-09: Former State Labor Relations Administrator May Represent Terminated Employee Absent Personal, Substantial Participation
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-313
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