When may a lawyer who served on a state administrative agency board later represent clients before that board?

Plain-English summary

Before going to law school, the inquiring attorney had served on the board of a state administrative agency with rulemaking, licensing, and enforcement powers. The lawyer asked when the Bar Rules would bar him from appearing before that board, either representing parties who came before it during his term or representing parties whose matters had a direct relationship to matters before the board during his term.

The Commission concluded that, given the board's procedures, Rule 3.4(g) (no private employment in a matter on the merits of which the lawyer acted in a judicial capacity) was likely to control in nearly all cases. It accepted the Reporter's broad reading of "judicial capacity" to include any official fact-finding or adjudicatory position, so the board membership fell within Rule 3.4(g). It contrasted Rule 3.4(h)(1) (successive government and private employment), which can rest on representing the government, personal and substantial participation as a public officer, or receipt of confidential information, and does not require action on the merits. Rule 3.4(g) has the narrower predicate but the broader consequence: when it applies, no partner or associate may take the barred employment, whereas a 1983 amendment to 3.4(k) allows a screened, non-benefiting firm to take employment barred only by 3.4(h)(1).

Both rules turn on identifying a "matter," defined (following Grievance Commission Opinion 19 and the Reporter's Notes) as a discrete and isolatable transaction or set of transactions between identifiable parties. The Commission held that for a license of indefinite duration, later proceedings to modify, interpret, or enforce it involve the same matter as the original licensing proceeding, while renewal of a limited-duration license is a new matter. Because both rules turn on the matter accepted, the lawyer is not disqualified merely because a client once appeared before the board or remains involved in a related matter.

Applying Rule 3.4(g), the Commission concluded the lawyer is disqualified from matters that were before the board for adjudication during his tenure and on which he acted on the merits, including permits decided after a hearing, permits decided on appeal from staff, enforcement decisions after hearing, and even matters approved on a consent agenda by a vote without separate deliberation, since action on the merits is construed broadly. Rulemaking is not adjudication, so the lawyer is not disqualified from matters involving rules adopted while he served. Applying Rule 3.4(h)(1), the Commission concluded the lawyer had not represented the government as an attorney (he was not yet a lawyer) and was unlikely to hold confidential information, since the board's files and proceedings were public records and a member's impressions of fellow members' views are not confidential information; in nearly all cases his participation amounted to acting on the merits, so Rule 3.4(g) rather than 3.4(h)(1) would govern.

Currency note

This opinion was issued in 1990, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a former agency board member barred from representing anyone who appeared before the board?

A: The opinion concluded no. Disqualification turns on the specific matter, so the lawyer is not barred merely because a client once appeared before the board or remains involved in a related matter.

Q: Which rule controlled, the prior-judicial-activity rule or the successive-employment rule?

A: The opinion concluded Rule 3.4(g) (prior judicial activity) controlled in nearly all cases, because the board member's role was to act on the merits in an adjudicatory capacity rather than to represent the government as counsel.

Q: Does the disqualification extend to the lawyer's partners and associates?

A: The opinion held that under Rule 3.4(g) it does; no partner or associate may take employment the board member is barred from. The screening relief in the 1983 amendment to 3.4(k) applies only when 3.4(h)(1) is the governing rule.

Q: Could the lawyer handle matters involving rules the board adopted during his term?

A: The opinion concluded yes. Rulemaking is not adjudication and does not create a "matter" between identifiable parties, so neither Rule 3.4(g) nor 3.4(h)(1) barred such work, including later proceedings attacking, interpreting, or amending the rule.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(g) (prior judicial activity), Rule 3.4(h)(1) (successive government and private employment), and Rule 3.4(k) (imputation and screening). These correspond to ABA Model Rule 1.11 (special conflicts for former and current government officers and employees) and Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral). The opinion's definition of "matter" tracks the language now found in Model Rule 1.11(e).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 (former and current government officers); Model Rule 1.12 (former judge or adjudicative officer)
• Maine Bar Rule 3.4(g), 3.4(h)(1), 3.4(k)

Other opinions cited:

• Maine Grievance Commission Op. 19 (definition of "matter")
• Maine Professional Ethics Commission Op. 80 (broad construction of action on the merits)

See also

• Maine Ethics Op. 130: Vicarious Disqualification, Special Assistant DA
• Maine Ethics Op. 109: Lawyer-Mayor and the Firm During Representation

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89884

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: November 1, 1990

QUESTION

Before graduating from law school the inquiring attorney was a member of the board of an administrative agency of this State having rulemaking, licensing and enforcement responsibilities. The request for advice asks under what circumstances the Bar Rules would preclude the attorney from appearing before the board: A) "representing parties who came before the Board during my term or"; B) "representing parties . . . who have matters that have a direct relationship to matters that came before the Board [during the attorney's term]." The board on which the attorney served had extensive permit granting authority, which was exercised through rules that treated some such proceedings as adjudicatory. Others were delegated to a staff over which the Board had no administrative authority. Staff decisions on permits could be appealed to the Board. The board also had limited enforcement powers, which could be exercised through a hearing procedure. Other functions of the Board were not adjudication. For example, it engaged in rulemaking.

OPINION

The inquiring attorney suggests that the questions are controlled by either Bar Rule 3.4(g) or Bar Rule 3.4(h).[1]

The Commission has concluded that, given the procedure of the Board in question, Rule 3.4(g) is likely to be controlling in nearly all cases.

Rule 3.4(g) provides:

(g) Prior Judicial Activity. A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

The reporter's notes to the rule indicate that "judicial capacity" should be given a broad interpretation, including "any . . . official fact finding or adjudicatory position." We accept the interpretation suggested by the Reporter and therefore treat the attorney's board membership as within the scope of Rule 3.4(g).

Rule 3.4(h)(1) provides:

(h) Successive Government and Private Employment.

(1) A lawyer shall not accept private employment in a matter in which he formerly represented the government of a state, or of the United States, or any agency, entity, or political subdivision of a state or of the United States as client, or in which he participated personally and substantially as a public officer or employee, or when such private employment may involve the use of confidential information obtained through the former governmental representation or employment.

Rules 3.4(g) and (h)(1) concur in requiring as a predicate some prior connection as a government official with a "matter." They differ in the nature of the connection and in their consequences. Rule 3.4(g) rests solely on action on the merits of a "matter" in an "official fact finding or adjudicatory position." Rule 3.4(h)(1) may rest on representation of the government as an attorney or on personal and substantial participation in a matter as a public officer or employee, or on the receipt of confidential information about a matter as a result of government employment. Rule 3.4(h)(1) does not necessarily require action of any kind on the merits of a matter.

Having a narrower predicate, Rule 3.4(g) has broader consequences. When an attorney is barred from employment by Rule 3.4(g), no partner or associate or affiliated lawyer may accept employment from which the attorney who is subject to Rule 3.4(g) would be barred. Because of a 1983 amendment to 3.4(k), however, when 3.4(h)(1) is the applicable rule, partners, associates and affiliated attorneys are not barred from accepting employment not permitted to the target attorney if that attorney is screened from participation as a professional and receives no economic benefit from the representation.

The application of both rules requires identification of a "matter" with which the attorney was connected in some way during prior government service. Opinion 19 of the Grievance Commission[2] and the Reporter's Notes to the 1983 amendment of Rule 3.4(h)(1) concur in defining "matter" in Rule 3.4(h)(1) as "a discrete and isolatable transaction or set of transactions between identifiable parties." We believe the term "matter" should have the same meaning in Rule 3.4(g) as it has in Rule 3.4(h)(1). In both rules this key term serves to draw the line between subsequent employment that should be permissible in the interest of encouraging lawyers to enter public service and employment that must be barred because it could impair the integrity of a lawyer's previous acts as a public official or result in misuse of a former public office for private gain.[3]

The licensing authority of the Board requires that we determine the scope of the "matter" when a license issues. We conclude that when a license has indefinite duration, subsequent proceedings to modify, interpret or enforce the license, or conditions of the license, involve the same matter as the original licensing proceeding. Renewal of a license with limited duration, on the other hand, will not involve the same matter. The line may appear to be thin, but we conclude it should be drawn at that location.[4]

Because the applicability of both rules turns on the "matter" as to which employment has been accepted, the attorney will not be disqualified from representing a client just because that client appeared before the board during the attorney's service or is still involved in some way with the same matter that was before the board while the attorney served on it or a related matter. The question is whether the matter as to which the attorney accepts employment is disqualifying under 3.4(g) or 3.4(h).

Applicability of Rule 3.4(g)

Rule 3.4(g) will disqualify the attorney from further participation in matters: 1) that were before the board during the attorney's tenure for adjudication; and 2) as to which he acted on the merits. Permits on which the Board took plenary action on the merits, including but not limited to action after hearings, permits on which the Board acted as a result of an appeal from a staff decision, and enforcement decisions reached by the Board after hearing, plainly involve adjudication within the scope of Rule 3.4(g). If the attorney voted on any such matter, there was action on the merits for the purposes of Rule 3.4(g).

It was also customary for the Board to approve, without separate vote, a list of consent orders and staff recommendations referring matters to the Attorney General for enforcement action. Although in practice the board did not deliberate on individual orders and recommendations, the governing statute required Board action on all of them, and the Board voted on all. The purposes of Rule 3.4(g) require that action on the merits be construed broadly. (See Opinion 80) A vote, even without deliberation on any item on the list, must therefore be deemed action on the merits. The Board acted in no other way. Accordingly, neither the lawyer nor any member or associate of his firm may accept employment in any matter that came before the Board on a consent agenda on which he acted while he was a member. If the result seems unduly restrictive, the remedy would seem to be an amendment to Rule 3.4(k).

On the other hand, Rule 3.4(g) will not disqualify the former board member from representation that involves a rule adopted while he was on the board, since rule-making is not adjudication.

Applicability of Rule 3.4(h)(1)

The inquiring attorney did not represent the government as an attorney during his tenure on the Board, since he was not an attorney then and that was not his job in any case. The applicability of Rule 3.4(h)(1) thus will turn on finding that his present employment involves 1) the same "matter" as he encountered while a member of the Board; and, 2) his "personal and substantial" participation as a government official in the "matter," or 3) his possession of confidential information that could be useful in carrying out any employment as an attorney he may later be offered.

Members of the attorney's board had no administrative responsibilities. Thus, in nearly all cases it seems that the attorney's personal and substantial participation in a matter will consist of acting on the merits of that matter as a board member, that is, in a judicial capacity as those terms are used in Rule 3.4(g). Consequently, the restrictions of 3.4(g) rather than 3.4(h)(1) would apply.

It seems unlikely that the attorney would have received confidential information in any way other than part of a board proceeding, and therefore unlikely that he received any confidential information while serving on the board. Information that is available to the general public, regardless how narrowly the information may, in reality, have been disseminated is not confidential within the meaning of Rule 3.4(h). Virtually all the files and proceedings of the Board in question are public records.[5] Nor is the former board member's knowledge of or assumptions about the views of fellow members or the reasons for a particular decision confidential information, as that phrase is used in Rule 3.4(h)(1).

As was the case with Rule 3.4(g), Rule 3.4(h)(1) would not bar the attorney from employment involving rules adopted by the board while he was a member, whether that employment consists of representation in proceedings in which the rule is attacked, interpreted or defended, or consists of representation in subsequent rule-making to amend or repeal the rule. Rule-making is not a proceeding between identifiable parties and thus does not create a "matter," as that term is used in Bar Rule 3.4(h)(1).

FOOTNOTES

[1] The Committee does not, of course, have authority to opine on the impact of 5 M.R.S.A. Sec. 18.

[2] The Grievance Commission formerly had the task of issuing advisory opinions.

[3] The inquiring attorney suggests it might be relevant that he was not a lawyer during his government service. Except for situations in which Rule 3.4(h)(1) could only be applicable because of prior representation of the government as an attorney, neither 3.4(g) or 3.4(h)(1) requires that the disqualifying prior service be legal in nature or that the attorney have been a member of the bar at the time.

[4] The Commission expresses no opinion on the identity and extent of a "matter" in administrative proceedings not mentioned in this opinion, for example ratemaking.

[5] Some agency files may contain so-called trade secrets made confidential by law.