May a private Missouri lawyer who represented a state agency in a parental-rights termination later represent the foster parents in the child's adoption?

Plain-English summary

A state agency contracted with a private lawyer for a parental-rights termination proceeding. After completing that matter, the lawyer wanted to represent the foster parents in an adoption of the same child.

The opinion concludes that Rule 4-1.11 does not govern the lawyer's future conduct because the lawyer served the agency by contract and was not a current or former government lawyer. The analysis instead falls under Rule 4-1.9 and the lawyer's duties to the agency as a former client.

Rule 4-1.9(a) prohibits the foster-parent representation if the adoption is the same or a substantially related matter and the foster parents' interests are materially adverse to the agency, unless the agency gives informed consent confirmed in writing. Matters are substantially related when they involve the same transaction or dispute or when confidential factual information normally obtained in the first representation poses a substantial risk of materially advancing the later client's position.

The opinion says such a risk appears to exist here, subject to the underlying facts. If the agency provides the required consent, Rule 4-1.9(c) still prohibits using or revealing information from the former representation except as the Rules permit or require.

In practice

Under this opinion, private contract status places the lawyer under the ordinary former-client rule rather than the special government-lawyer rule. The later adoption representation turns on substantial relationship, material adversity, written informed consent, and continuing confidentiality duties.

Common questions

Q: Does Rule 4-1.11 govern this private contract lawyer?

A: No. The opinion says it does not apply because the lawyer represented the agency by contract and was not a current or former government lawyer.

Q: Which rule governs the later adoption representation?

A: Rule 4-1.9 governs the lawyer's duties to the agency as a former client.

Q: Why might the termination and adoption be substantially related?

A: The opinion identifies a substantial risk that confidential factual information gained during the agency representation could materially advance the foster parents' interests in the adoption.

Q: Can the agency consent to the later representation?

A: Yes, if the conflict is within Rule 4-1.9(a)'s consent provision and the agency gives informed consent confirmed in writing.

Q: May the lawyer use the agency's confidential information after consent?

A: Rule 4-1.9(c) continues to prohibit use or disclosure except as the Rules permit or require.

Background and rules framework

Rule 4-1.9(a) governs same or substantially related matters that are materially adverse to a former client. Rule 4-1.9(c) preserves duties concerning former-client information. Rules 4-1.0(b) and (e) define confirmed in writing and informed consent.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(b), 4-1.0(e), 4-1.9(a), 4-1.9(c), and 4-1.11
• Missouri Rule 4-1.9 Comment [3]; Rule 4-1.0 Comments [1] and [6]-[8]

Other opinions cited:

• Missouri Informal Opinion 20040059, governmental-entity consent to a conflict

See also

• New York Ethics Op. 1029: Government-Lawyer Conflicts
• Nebraska Ethics Op. 10-06: Former Private Counsel Joining an Agency
• Virginia Ethics Op. 1430: Former Local-Government Counsel

Source

• Landing page: Missouri Informal Opinion 2021-06

Original opinion text

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

Question: A state agency, Governmental Entity, contracted with Private Attorney to represent the governmental entity in proceedings involving termination of parental rights. Private Attorney is not considered an employee of Governmental Entity. Once Private Attorney completes the termination of parental rights proceeding, may Private Attorney then represent Foster Parents who are seeking to adopt the minor child?

Answer: Since Private Attorney represents Governmental Entity by contract, and not as a current or former government lawyer, Rule 4–1.11 does not apply to future conduct of Private Attorney. Instead, Private Attorney must determine if a former client conflict of interest exists based on the prior representation of Governmental Entity. Rule 4–1.9(a) prohibits Private Attorney from representing Foster Parents in the same or substantially related matter in which Foster Parents’ interests are materially adverse to those of Governmental Entity unless Governmental Entity gives informed consent, confirmed in writing. Matters are substantially related per Rule 4–1.9 “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Comment [3]. It appears that there is such a substantial risk as to confidential factual information gained by Private Attorney while representing Governmental Entity that may materially advance Foster Parents’ interests in the adoption. If that is the case, depending on the underlying facts, per Rule 4–1.9(a), Private Attorney may not represent Foster Parents in the adoption proceeding absent informed consent, confirmed in writing, from Governmental Entity. See also Informal Opinion 20040059 (addressing governmental entity consent to conflict of interest). “Informed consent” is defined in Rule 4–1.0(e), and guidance is provided in Comments [6] – [8]. “Confirmed in writing” is defined in Rule 4–1.0(b), and guidance is provided in Comment [1]. If Governmental Entity provides informed consent, confirmed in writing, to the representation of Foster Parents by Private Attorney, Rule 4–1.9(c) prohibits Private Attorney from using or revealing information relating to any prior representation except as permitted or required by the Rules.