May a former government lawyer take private employment on a matter he did not investigate or pass upon while in government service?

Plain-English summary

A member asked about taking a private matter after retiring from government service. One committee member thought the representation of Mr. A would be unethical, on the view that during his service as Assistant District Attorney the member may have had access to confidential files and information. The remainder of the committee did not find anything unethical in the representation.

The committee applied Canon 36, which provides that one retiring from government service should not thereafter accept employment in connection with any matter he investigated or passed upon while in that service. From the member's statement, it appeared he had no knowledge of the matters involved until over a year after he left office, so the matter fell outside the Canon's prohibition.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 36 of the Canons of Professional Ethics; the duties of a former government lawyer are now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rule 1.11). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the former Assistant District Attorney take the new matter?

A: Yes, in the committee's majority view, because he did not investigate or pass upon the matter while in office and had no knowledge of it until over a year after leaving.

Q: What was the dissenting concern?

A: One member thought the representation could be unethical because, during his government service, the lawyer may have had access to confidential files and information.

Background and rules framework

The opinion applied former Canon 36 of the Canons of Professional Ethics, which barred a former government lawyer from later accepting employment on a matter he had investigated or passed upon in that service. A former government lawyer's duties are now addressed by Rule 4-1.11 of the Rules Regulating The Florida Bar (Model Rule 1.11). The committee's analysis turned on whether the lawyer had investigated or passed upon the matter while in office.

Citations and references

Rules of Professional Conduct:

• Canon 36 [Canons of Professional Ethics; see current Rule 4-1.11]

See also

• FL Bar Ethics Op. 62-58: Former Assistant U.S. Attorney Defending a Criminal Case
• FL Bar Ethics Op. 67-21: Former Assistant State Attorney; Fee Split
• FL Bar Ethics Op. 63-31: Assistant City Attorney Prosecuting a Former Client of a Partner

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-24/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-24-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 60-24
January 10, 1961
Advisory ethics opinions are not binding.
One retiring from government service may accept employment in connection with a matter which he has not investigated or passed upon while in such service.
Canon: 36
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar submits a question concerning retirement from government service.
While one member of the Committee feels that the member's representation of Mr. A would be unethical from the standpoint that during his service as Assistant District Attorney he may have had access to confidential files and information, the remainder of the Committee does not feel that there is anything unethical in such representation.
Canon 36 provides that one retiring from government service should not thereafter accept employment in connection with any matter which he has investigated or passed upon while in such service. From his statement, it appears that the member had no knowledge of the matters involved for over a year after he left office.