Can a former city attorney later represent a city employee against the city in a pension matter the attorney handled while in office?

Plain-English summary

The committee considered whether an attorney who, as city attorney, had represented the city's civil service commission in an employee's claim for disability pension benefits could later, after leaving office, represent that same employee in litigation by the city to reduce the pension. It answered no.

The committee traced the rule from old Canon 36, which prohibited an attorney in public office from accepting employment after retirement in connection with any matter he investigated or passed upon while in public employ, and from ABA Formal Opinion 134 (1935), which reasoned that a lawyer who acquired confidential information in public employment could not later use it against the employer's interest, and that even absent such information the public would infer the lawyer was retained to derive advantage from his former public connection. The committee then applied DR 9-101(B), which provides that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while a public employee, and EC 9-3, which explains that such employment gives the appearance of impropriety even if none exists.

The committee concluded that because the attorney had represented the civil service commission during hearings on the employee's pension claim, he had substantial responsibility in the matter, and his later representation of the same employee in litigation over the same matter would create the very appearance of impropriety DR 9-101(B) was designed to prevent. The employment therefore could not be permitted.

Currency note

This opinion was issued in 1975 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former city attorney represent an employee against the city in a matter he handled in office?

A: No. The committee held that DR 9-101(B) bars accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee.

Q: Did it matter whether the lawyer actually obtained confidential information?

A: No. Following ABA Formal Opinion 134, the committee reasoned that the bar applies even absent confidential information, because the public would infer the lawyer was retained to exploit his former public connection.

Q: What counted as "substantial responsibility" here?

A: The committee held that representing the civil service commission during the hearings on the employee's pension claim gave the attorney substantial responsibility in the matter.

Background and rules framework

The opinion applied DR 9-101(B) of the former Code of Professional Responsibility (barring private employment in a matter in which the lawyer had substantial responsibility as a public employee) and EC 9-3, drawing on old Canon 36 and ABA Formal Opinion 134. The modern analog is Model Rule 1.11 (special conflicts of interest for former and current government officers and employees).

Citations and references

Rules of Professional Conduct:

• DR 9-101(B) (private employment in a matter handled as a public employee); EC 9-3; modern analog Model Rule 1.11

Other opinions cited:

• ABA Formal Opinion 134 (1935), former public lawyer may not act against the employer's interest in a matter handled in office

See also

• KBA Ethics Op. E-171: Attorney General, Civil Codefendant Then Criminal Prosecution
• KBA Ethics Op. E-153: Prosecutor's Divorce and Nonsupport Conflict
• KBA Ethics Op. E-102: County Attorney's Partner Defending Criminal Cases

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-104.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-104
Issued: January 1975

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney who as city attorney represented the civil service commission of that city in a claim by an employee for a disability pension later represent that individual after leaving office in litigation by the city to reduce the amount of his pension?

Answer:

No.

References:

DR 9-101(B); EC 9-3

OPINION

During his term of office, a city attorney represented the civil service commission of his city in a claim by a city employee to recover disability pension benefits. Later, and after the attorney left office, the city undertook to reduce the amount of the pension. The former city attorney seeks to represent the individual in the resulting litigation, and we are asked whether this is proper.

Old Canon 36 expressly prohibited an attorney in public office or public employ from acceptance of employment after his retirement from office in connection with any matter which he investigated or passed upon while in such employ. The rationale of this rule was expressed in ABA Formal Opinion No. 134 (dated May 15, 1935). There, it was held that if an attorney actually acquired information in confidence while in public employment, he could not later use it in favor of an individual whose interest was in conflict with that of the employer. Even if he did not acquire it, said the Committee, the public would infer that he had been retained by the individual in order to derive some advantage from the attorney's former connection with his public employer.

DR 9-101(B) is equally specific in frowning upon such employment. It provides:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

EC 9-3, discussing the basis for the rule, notes that acceptance of employment under such circumstances would give the appearance of impropriety, even if none exists.

From an examination of these rules, we are compelled to conclude that the questioned employment is improper. If the attorney represented the civil service commission during hearings on the employee's claim for pension benefits, he obviously had "substantial responsibility" in the matter. For him now to undertake representation of that same employee in litigation regarding the same matter would create the very appearance of impropriety that DR 9-101(B) was designed to guard against. Therefore, such employment cannot be permitted.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.