Can a former county lawyer represent a private client against the county on a road matter the lawyer did not personally handle in office?

Plain-English summary

The committee was asked whether an attorney who formerly advised the Board of County Commissioners on legal questions about county roads may represent a private client seeking to persuade or force the county to remove obstructions from and maintain a particular county road. It answered yes, as long as the prior county representation was not substantially related to the present case.

The committee applied Rule 1.11(a), which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer absent the agency's consent, and Rule 1.9(a), which bars representing a person in the same or a substantially related matter materially adverse to a former client without consent. Assuming the Board had not consented, the committee framed the question as whether the requested representation involved a "substantially related matter," which it described as essentially a conflict-of-interest question. The traditional considerations were whether the proposed representation creates an appearance of impropriety, whether the former or present client is disadvantaged, and whether the attorney claims or appears to have an ability to unfairly influence the former government client.

The committee looked to ABA Formal Opinion 342's construction of DR 9-101(b), under which "substantial responsibility" envisages a much closer and more direct relationship than a perfunctory approval, requiring personal involvement to an important, material degree in the investigative or deliberative processes; a lawyer who had such responsibility should not, on leaving government, represent another regarding that matter. Construed that way, the element should not unduly hinder government recruiting of lawyers or needlessly interfere with former government lawyers' later practice. Applying that standard, the committee concluded none of the concerns appeared present, so the attorney may advise the private client on the county-road questions as long as the attorney was not previously involved in discussions or advice substantially relating to the same matter.

Currency note

This opinion was issued in 1989, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. 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: When is a former government lawyer barred from opposing the former government client?

A: The opinion concludes the bar under Rules 1.11(a) and 1.9(a) applies only where the private matter is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially for the government, absent consent.

Q: What does "substantial responsibility" mean here?

A: Quoting ABA Formal Opinion 342, the opinion explains it requires personal involvement to an important, material degree in the investigative or deliberative process, not a mere perfunctory approval or disapproval.

Q: Could the lawyer advise on county roads generally?

A: Yes. The opinion concludes the attorney may advise the private client on the county-road questions as long as the attorney was not previously involved in advice substantially relating to the same matter.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.11(a) (Successive Government and Private Employment; Model Rule 1.11) and Rule 1.9(a) (Duties to Former Clients; Model Rule 1.9), and relies on ABA Formal Opinion 342's reading of the former DR 9-101(b) "substantial responsibility" standard.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.11(a) (successive government and private employment) / Model Rule 1.11
• Mont. R. Prof. Cond. 1.9(a) (duties to former clients; substantially related matter) / Model Rule 1.9

Other opinions cited:

• ABA Formal Op. 342: "substantial responsibility" under DR 9-101(b)

See also

• State Bar of Montana Ethics Op. 850820: A Prosecution Firm Taking a Criminal-Defense Appointment
• State Bar of Montana Ethics Op. 880211: A Prosecutor Investigating a Client He Represents Civilly
• ABA Formal Op. 97-409: Successive Government and Private Employment

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/890720.pdf

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: May an attorney who formerly worked for the County advising the Board of County Commissioners on legal questions related to county roads represent a client in "persuading or forcing the . . . County Government to remove obstructions from and maintain a particular county road . . . ?"

ANSWER: Yes, as long as the previous county representation was not substantially related to the present case.

ANALYSIS: Rule of Professional Conduct 1.11(a) provides:

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. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is screened from any participation in the matter and apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Rule of Professional Conduct 1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

For purposes of this opinion, we will assume that the Board of County Commissioners has not consented to the representation. Our evaluation must turn on the question of whether the requested representation is on "a substantially related matter." This is essentially a conflict of interest question. The traditional considerations are whether the proposed representation results in the appearance of impropriety and whether the former or present client is disadvantaged by the proposed representation. A further concern is whether the attorney claims or appears to have the ability to unfairly influence his former government client.

Various state ethics committees have considered similar questions. (See ABA/BNA, Lawyers Manual on Professional Conduct 801:1306, 801: 1202, 801: 1901, 801: 2305, 801: 3901, 801: 4311, 801: 4316, 801: 4823, 801: 4846, and 801: 7001.) See also DR 4-101(b)(2), DR 9-101(b) and (c), and EC 9-3 of the Canons of Ethics.

ABA Formal Opinion 342 provides some guidance in its analysis of DR 9-101(b) which provides:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

That Formal Opinion provides, inter alia:

As used in Dr 9-101(b), "substantial responsibility" envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions in question. . . . With a responsibility so strong and compelling that he probably became involved in the investigative or decisional processes, a lawyer upon leaving the government service should not represent another in regard to that matter.

The element of "substantial responsibility" so construed should not unduly hinder the government in recruiting lawyers to its ranks not interfere needlessly with the skilled and trained former government lawyers to represent them.

In view of this discussion, it is our opinion that none of the aforementioned concerns appear to be present here. The attorney may advise the private client with regard to the questions involving county roads as long as the attorney was not previously involved in discussions or advice substantially relating to the same matter.

                        THIS OPINION IS ADVISORY ONLY