If a lawyer advised a state agency in private practice and is then appointed its commissioner, is she barred from working on those same matters?

Plain-English summary

A lawyer being considered for appointment as commissioner of a state agency had, in private practice, provided legal services and advice to that same agency. She asked whether, if appointed, the Rules of Professional Conduct would preclude her from participating in all matters she had previously handled for the agency.

The opinion quotes Rule 1.11(c)(1), which bars a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice. Read literally, that could bar her from any matter she had handled for the agency. The committee rejects that reading. It explains that Rule 1.11 is meant to address a lawyer changing sides or clients, where loyalty and confidentiality to a former client could be compromised, or where the lawyer might use public office to advance a former private client's interests. Those concerns do not apply when the lawyer continues to act for the same client (the agency) on the same matter.

Reading the rule as a "rule of reason" guided by its purposes (the Scope Note and Comments 1 and 3 to Rule 1.11, which caution against inhibiting movement to and from government), the opinion concludes Rule 1.11 should not be interpreted as a complete bar in this situation. It adds a caution: particular facts could still present a problem, for example if the lawyer had been a paid advocate urging a position against a private party in an adversarial setting and would now direct the outcome. The committee also notes it did not consider G.L. c. 268A or other substantive law, which is beyond its jurisdiction.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the analysis turns on whether the lawyer is switching loyalties. The opinion holds that Rule 1.11(c)(1) does not automatically bar a former private lawyer for an agency from working, as the agency's commissioner, on matters she previously handled for it, because she is serving the same client rather than changing sides.

The opinion holds that fact-specific situations can still raise a conflict, such as where the lawyer previously argued a position against a private party in an adversarial setting and would now decide that issue. It also flags that the conflict-of-interest statute (G.L. c. 268A) and other law, which it did not address, may apply.

Common questions

Q: I represented a state agency in private practice and am now joining it as an executive. Am I conflicted out of my old matters?

A: The opinion concludes you are not automatically barred by Rule 1.11(c)(1), because the rule targets a lawyer who changes sides or clients, and you would be continuing to serve the same client (the agency) in a new role.

Q: Are there situations where I still could not participate?

A: Yes. The opinion cautions that particular facts could present a conflict, for example if you had been a paid advocate urging a position against a private party and would now direct the outcome of that very issue.

Q: Does this opinion clear me under the state conflict-of-interest statute?

A: No. The opinion expressly did not consider G.L. c. 268A or other state rules and regulations, treating those as substantive-law questions beyond the committee's jurisdiction.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.11(c)(1) (a public officer's bar on matters handled personally and substantially in private practice), reading it together with the Scope Note's "rules of reason" admonition and Comments 1 and 3 to Rule 1.11 (preventing exploitation of public office for a private client, while not inhibiting transfer to and from government). Rule 1.11 corresponds to ABA Model Rule 1.11 (special conflicts for current and former government officers).

Citations and references

Rules of Professional Conduct:

• MR 1.11(c)(1) / Mass. R. Prof. C. 1.11(c)(1) (public officer's participation in prior private-practice matters)

Statutes:

• G.L. c. 268A (state conflict-of-interest law; noted as outside the committee's jurisdiction)

See also

• ABA Ethics Op. 509: disqualification from confidential government information
• CA Bar Ethics Op. 2001-156: a city attorney's conflicts among constituents

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2007-opinion-07-02/opinion-07-02