When a law firm has lobbied for one client, can it switch sides and lobby for an opposing interest group, and how broadly does the former-client conflict reach?

Plain-English summary

The XYZ law firm had for several years lobbied in Augusta on behalf of an association of trial attorneys. XYZ then accepted work lobbying for an association representing liability insurance companies and, to avoid future conflicts, told the trial lawyers it would drop them. The trial lawyers did not consent and threatened suit. Both sides jointly asked the Commission whether the proposed switch was proper under Bar Rule 3, which turns on Rule 3.4(e), the rule barring employment adverse to a former client in the same subject matter or where confidential information might be used.

The Commission first rejected XYZ's argument that lobbying is not the practice of law and therefore escapes Rule 3.4(e). It held that lobbying, when done by a lawyer, is an aspect of the practice of law the rules were meant to regulate; the Bar Rules reach "the conduct of attorneys with respect to their professional activities," and earlier codes (former Canon 26, the Code of Professional Responsibility) had long treated lobbying as professional work. So the former-client rule applied.

The Commission then rejected the trial lawyers' opposite extreme, that "subject matter of the former employment" meant all lobbying on any matter of interest to their association, which would bar XYZ from any insurance lobbying at all. Drawing on ABA Formal Opinion 342, the Commission read "subject matter" to mean a discrete and identifiable transaction or set of transactions, here particular legislative matters XYZ had actually lobbied on for the trial lawyers, not the general field. It analogized to a former government lawyer, who is not barred from later private work involving the same regulations or points of law simply because of general expertise gained in office.

On confidences, the Commission held that XYZ's general inside knowledge of the trial lawyers' association (how it reached consensus, its financial strengths, how it allocated contributions to legislators) was the kind of information acquired largely by observation rather than the protected confidences Rule 3.4(b) guards. Accepting the contrary view would bar a lawyer from ever opposing a former client. The Commission concluded XYZ was free to lobby for the insurance industry on matters where it had not directly lobbied for the trial lawyers and which did not involve the use or potential use of confidential information about a particular legislative matter, with line-drawing left to a case-by-case approach.

Currency note

This opinion was issued in 1981, 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 lobbying by a lawyer governed by the rules of professional conduct?

A: The opinion concluded yes. It held that lobbying done by a lawyer is an aspect of the practice of law within the Bar Rules' reach, rejecting the argument that legislative advocacy falls outside the former-client rule.

Q: Does representing one interest group bar a firm from ever lobbying for an opposing group?

A: The opinion concluded no. The former-client bar reaches only the particular legislative matters the firm actually lobbied on for the former client, not the entire subject area, drawing on the "discrete transaction" reading of "subject matter" in ABA Formal Opinion 342.

Q: Does general knowledge of a former client's internal operations bar adverse representation?

A: The opinion concluded no. Inside knowledge of how the association operated, acquired largely by observation, was not the kind of confidence protected by Rule 3.4(b); a contrary rule would bar a lawyer from ever opposing a former client.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(e) (interest of former client: no employment adverse to a former client, without informed consent, in the same subject matter or where confidences may be used) together with Rule 3.4(b) (preservation of client confidences and secrets). These correspond to Model Rule 1.9 (duties to former clients) and, by the opinion's analogy to former government lawyers, Model Rule 1.11. The analysis turns on how narrowly "subject matter" is defined and on the distinction between protected confidences and general observational knowledge.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 (former clients); Model Rule 1.11 (former government lawyers, by analogy)
• Maine Bar Rules 3.4(e), 3.4(b)

Other authorities:

• Former Canon 26, ABA Canons of Professional Ethics (lawyer rendering services before legislative bodies)
• ABA Formal Opinion 342 (1975) (meaning of "matter" for former government lawyers)
• ABA Informal Opinion C-760; Drinker, Legal Ethics 105 (1953)

Cases:

• Allied Realty v. Exchange Nat. Bk., 283 F. Supp. 464 (D. Minn. 1964), aff'd, 408 F.2d 1099 (8th Cir. 1969), former government lawyer's general expertise versus personal knowledge of a particular matter

See also

• Maine Ethics Op. 33: Disqualification of the Public Advocate's Counsel
• Maine Ethics Op. 83: Domestic Litigation Against a Former Client
• Maine Ethics Op. 32: Suing a Former Client

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89523

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: January 15, 1981

Question

The XYZ law firm has for several years represented an association of trial attorneys as a lobbyist in Augusta. XYZ has advised the association that it has accepted employment as a lobbyist on behalf of an association representing the interests of liability insurance companies and, to avoid potential conflicts of interest in the future, will no longer represent the trial attorneys' group. The trial attorneys have not consented to this new representation and have threatened to initiate legal action if it is consummated. The parties have jointly requested an opinion from the Grievance Commission as to the propriety of the proposed change in clients under Bar Rule 3.

Opinion

We agree with the parties that the answer to the question presented turns on the construction of Rule 3.4(e) which provides that:

(e) Interest of Former Client. A lawyer shall not accept employment adverse to a former client without that client's informed consent if such new employment involves the subject matter of the former employment or may involve the use of confidential information obtained through such former employment.

In a memorandum submitted by XYZ in support of its position, it has been suggested that lobbying activities do not lend themselves to the "subject matter" test of Rule 3.4(e) and therefore are not regulated by it. The Commission rejects the contention that lobbying, when performed by a lawyer, is not an aspect of the practice of law which it was the intention of the rules draftsmen to regulate. The scope of the Bar Rules is broadly stated to encompass "the conduct of attorneys with respect to their professional activities." Although lobbying in the halls of the legislature is obviously different than presenting a case before a tribunal in an adversary proceeding, it does not follow that a lawyer-client relationship with respect to such employment may not be created or that an adversial relationship may in some cases exist when conflicting forces urge the adoption or defeat of a particular bill.

Lawyer's ethical codes have long regulated lobbying as part of an attorney's employment. Former Canon 26 of the Canons of Professional Ethics of the American Bar Association provided that:

A lawyer openly and in his true character may render professional services before legislative or other bodies, regarding proposed legislation or in advocacy of claims before departments of government, upon the same principles of ethics which justify his appearance before the courts. . .

Regulation of such professional activities was carried forward into the Code of Professional Responsibility from which Maine Bar Rule 3 was in large measure taken. It is inconceivable that the draftsmen of the Maine Bar Rules could have intended such a drastic departure from past practice or to create such a substantial exception in the ethical standards regulating all of a lawyer's professional activities.

The trial attorneys have contended, however, that the "subject matter of the former employment" consists of "all lobbying activities" on matters of interest to their association and the XYZ is therefore barred from undertaking any lobbying for the insurance interests, even with respect to matters not previously dealt with by the Maine Legislature. This argument goes too far. The Commission sees no reason why the term "subject matter" should not be limited to particular legislative matters as to which XYZ lobbied on the trial attorneys' behalf. A former government lawyer would be precluded from engaging ever after in the specialized practice in which he had gained an expertise if the trial attorneys' broad definition of "subject matter" to include generally his legal activities on behalf of the government agency, were accepted. On the contrary, it has been stated that:

. . . the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. . . . The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101(B) from subsequent private employment involving the same regulations, procedures, or points of law; the same "matter" is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties. ABA formal op. 342, p. 6 (1975).

The trial attorneys have also argued that if XYZ is permitted to lobby for the insurance companies, it will inevitably involve the "use of confidential information obtained through such former employment" in violation of Rule 3.4(e). This contention is based on the fact that XYZ has gained inside knowledge about the internal operations of the trial attorneys' association such as its procedures for reaching consensus, financial strengths and weaknesses, and methods for allocating contributions to individual legislators. If this argument were accepted, however, it would effectively preclude a lawyer from ever taking a case against a former client without that client's consent since he would inevitably pick up bits and pieces of information as to the client's idiosyncrasies such as that he was a late riser, frequently exaggerated his statements, or was afflicted with a disease which disabled him at various times particularly in cold weather. This type of information acquired largely through observation by the lawyer rather than orally is not the type of confidential information with which Rule 3.4(b) is concerned, although it might conceivably be used to gain some advantage in an adversary proceeding. A lawyer employed by the N.L.R.B. or a large private corporation would invariably learn much about the internal modus operandi of his employer which would be useful in private practice yet it has long been accepted that an attorney leaving such employment is not barred from ever accepting cases against his former employer in the future where he was not previously involved in the subject matter of the litigation. Indeed, it has been stated that:

"Many a lawyer who has served with the government has an advantage when he enters private practice because he has acquired a working knowledge of the department in which he was employed, has learned the procedures, the governing substantive and statutory law and is to a greater or lesser degree an expert in the field in which he was engaged. Certainly this is perfectly proper and ethical. . . . This is distinguishable, however, from a situation where, in addition, a former government lawyer is employed and is expected to bring with him and into the proceedings a personal knowledge of a particular matter . . ." quoting Allied Realty v. Exchange Nat. Bk., 283 F.Supp. 464 (D. Minn. 1964), aff'd in 408 F.2d 1099 (8th Cir. 1969). See also ABA inf. op. #C-760, p. 2 quoting from Drinker, Legal Ethics 105 (1953).

Although the trial attorneys warn of the difficulties of "line drawing" in determining whether or not a particular lobbying effort in the future concerns the "subject matter of former employment," the task is no different than that presented by Rules 3.4(g) or 3.4(h) and will have to be approached on a case by case basis. In general, the Commission concludes that XYZ is free to accept employment by the insurance industry to lobby with respect to matters as to which XYZ was not involved in direct lobbying efforts to secure legislative action in the past and which do not involve the use or potential use of confidential information obtained through contacts with the trial attorneys' association regarding a particular legislative matter.