When must an Indiana lawyer entering or leaving government service decline or leave a matter?

Plain-English summary

Opinion 1-23 explains that Rule 1.11 uses a narrower same-matter inquiry for a lawyer moving from government to private practice. Without the agency's informed written consent, the former government employee cannot represent a private client in a matter in which the employee participated personally and substantially. Broad work such as drafting generally applicable regulations is not a matter involving specific parties, while investigation or enforcement involving identified parties is.

The rule does not ask whether a new matter is merely substantially related. It asks whether it is the same discrete matter. Separate from that inquiry, Rule 1.11(c) prohibits a lawyer who actually possesses nonpublic confidential government information from representing an adverse party when the information could materially disadvantage the person to whom it relates.

A firm can avoid imputation through screening. The conflicted lawyer takes no part, receives no portion of the fee, shares no matter information, and the former agency receives notice sufficient to evaluate compliance. The opinion also applies former-client duties when a lawyer moves from private practice to government and restricts employment negotiations with a party or lawyer in a matter in which the government lawyer participates personally and substantially.

In practice

Under this opinion, the sequence is to identify a discrete matter, determine the lawyer's personal and substantial involvement, identify any materially damaging confidential government information, consider required consent, and establish screening and notice before the new firm proceeds.

Common questions

Q: Is drafting a generally applicable regulation a Rule 1.11 matter?

A: The opinion says no when the work does not involve a proceeding, claim, investigation, contract, or other particular matter involving specific parties.

Q: Does the former government lawyer conflict only when confidential information was received?

A: No. Personal and substantial participation in the same matter creates the conflict regardless of whether the lawyer received confidential information.

Q: Is a substantially related matter enough for the former-government test?

A: The opinion states that Rule 1.11(a) asks whether it is the same matter, not whether it is substantially related.

Q: Can the new firm continue when the former government lawyer is disqualified?

A: Yes, if the lawyer is effectively screened, receives no fee from the matter, and the former agency receives sufficient notice.

Q: What if the lawyer knows damaging nonpublic information about an opposing person?

A: Rule 1.11(c), as applied by the opinion, prohibits the representation when that actual information could be used to the person's material disadvantage.

Background and rules framework

The opinion applies Indiana Rules 1.9, 1.10, and 1.11 to movement from government to private practice, private practice to government, and between public agencies. It supplements Indiana Opinions 2-22 and 3-22 on direct and imputed conflicts.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 1.9, 1.10, 1.11(a), 1.11(b), 1.11(c), 1.11(d), and 1.11(e)

Cases:

• State ex rel. Jefferson County Board of Zoning Appeals v. Wilkes, 655 S.E.2d 178 (W. Va. 2007), same-matter conflict and screening

Other opinions cited:

• ABA Formal Advisory Opinion 342 (1975)
• Indiana Advisory Opinions 2-22 and 3-22

See also

• Indiana Advisory Op. 2-22: Detecting Conflicts of Interest
• Indiana Advisory Op. 3-22: Imputed Conflicts of Interest
• New York State Bar Op. 1120: Government Lawyer Reporting Misconduct

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 1-23