Can a former city attorney later represent a city commissioner, as a private client, in a lawsuit over financial matters that arose while the lawyer held the city attorney position?

Plain-English summary

An attorney shared the city attorney position from 1980 to the fall of 1984. During that period the State Auditor audited the city, filed a preliminary report in September 1984, and the attorney assisted in the investigation and documentation, which resulted in a reduced demand; the Auditor's final report and demand came in spring 1985. The Attorney General then sued the mayor and two commissioners individually to recover the funds identified in the final report, and one commissioner asked the former city attorney to represent him in that suit.

The opinion resolves the question under Rule 1.11(a): except as law may expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency consents after consultation. The Committee noted that by suing the individual officials for recovery of money owed to the city, the Attorney General placed them in a position adverse to the city.

The opinion concludes that if the former city attorney participated personally and substantially in the matter, he cannot undertake the representation unless the city consents after consultation.

In practice

Under this opinion, the controlling question is whether the former city attorney participated personally and substantially in the matter while in public office. Where he did, Rule 1.11(a) bars him from representing the commissioner as a private client in the State's recovery suit unless the appropriate government agency, here the city, consents after consultation. The opinion treats the suit as adverse to the city because it seeks recovery of city funds from the officials individually.

Common questions

Q: Can a former government lawyer take a private client in a matter he handled in office?

A: Per this opinion and Rule 1.11(a), not where the lawyer participated personally and substantially in the matter, unless the appropriate government agency consents after consultation.

Q: Who has to consent for the former city attorney to take the case?

A: The opinion identifies the appropriate government agency, here the city, as the party whose consent after consultation is required.

Q: Why is the commissioner's defense treated as adverse to the city?

A: The opinion explains that the Attorney General sued the officials individually to recover money owed to the city, which places the officials in a position adverse to the city.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.11 (successive government and private employment, the analog of Model Rule 1.11), quoting Rule 1.11(a) on matters in which a lawyer participated personally and substantially as a public officer. The conflict turns on that personal-and-substantial participation and the absence of the government agency's consent.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Mississippi Rule 1.11: a lawyer may not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer, absent the government agency's consent after consultation.

See also

• MS Bar Ethics Op. 226: Former Chancellor Representing Parties in His Cases
• MS Bar Ethics Op. 188: City Attorney Suing Municipality in Same Liability Pool
• MS Bar Ethics Op. 116: City Attorney's Firm Defending Criminal Cases

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/110/
• Original PDF: https://www.msbar.org/media/1023/et_op_110-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 110

OF THE MISSISSIPPI BAR

RENDERED December 06, 1985

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEYS - Attorney who shared City Attorney position from 1980 until 1984 may not subsequently represent one of the City Commissioners in a lawsuit brought by the Attorney General against the Mayor and the two Commissioners individually on matters which arose while he held the City Attorney position.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts: An attorney shared the City Attorney position with another attorney for the period 1980 to the Fall of 1984. The auditor of the State of Mississippi audited the City during that period and filed a preliminary report in September of 1984. The attorney assisted in the investigation and documentation presentation, which resulted in a reduced demand by the State Auditor's office. The State Auditor's final report and demand was made in the Spring of 1985.

The Attorney General of the State of Mississippi filed suit seeking recovery of the funds as set out in the Auditor's final report and named the Mayor and the two Commissioners of the City as defendants, individually. One of the Commissioners has requested that the former City Attorney represent him individually in the lawsuit.

The attorney has presented this question for Committee opinion: Is there an ethical conflict preventing the former City Attorney from representing one of the Commissioners individually in the lawsuits brought by the State of Mississippi for recovery of funds spent during the years 1980 to 1984, as set out in the State Auditor's final report?

The question can be answered by reference to Rule 1.11(a) of the Mississippi Rules of Professional Conduct (MRPC):

Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency consents after consultation.

The Attorney General has sued the individual city officials for recovery of monies to the City, placing the officials in a position adverse to that of the City. If the former city attorney participated personally and substantially in the matter he or she cannot undertake the representation unless the City consents after consultation.