If a lawyer at a firm that represented a government body leaves to join the firm on the other side, can the new firm keep the case by screening her?

Plain-English summary

A lawyer worked at a firm that served as outside counsel to a municipal planning board in lengthy, partly still-pending litigation. A partner was lead counsel for the board and the lawyer assisted him. The partner retired, the firm stopped representing the board, and the lawyer asked whether she could leave to join the firm representing the adverse party, and what restrictions would apply to her and the new firm.

The lawyer had analyzed the question under RPC 1.11, which governs lawyers who formerly served as government lawyers or public officers and allows the lawyer's new firm to continue a matter if the disqualified lawyer is screened and the agency gets written notice. The Committee held that RPC 1.11 did not apply. That rule covers lawyers employed by the government itself, not lawyers at an outside firm retained to represent a government client; its screening provision exists to avoid deterring lawyers from entering public service. Because the lawyer worked at a private firm rather than in public service, RPC 1.11 was inapposite.

The proper analysis was under RPC 1.9 (former-client conflicts) and RPC 1.10 (imputation). The lawyer is personally disqualified under RPC 1.9(a) from representing the party adverse to her former client, the planning board, in the remaining litigation. But she stated that she did not have sole or primary responsibility for the planning-board litigation; the retired partner did. Because the strict bar on side-switching applies only where the lawyer had primary responsibility, RPC 1.10(c) permits the new firm to continue representing the adverse party so long as the lawyer is timely screened, is apportioned no part of the fee, and written notice is promptly given to the former client.

In practice

The opinion holds that, under RPC 1.9 and RPC 1.10, a lawyer who assisted in representing a government client while at a private firm is personally disqualified from the adverse side of the same matter, but the firm she joins may keep the case if she did not have primary responsibility, is timely screened, takes no part of the fee, and the former client gets written notice. Per the opinion, RPC 1.11's government-lawyer screening provision does not reach outside counsel retained by a government body; the controlling rules are the general former-client and imputation rules. Where the lawyer did have sole or primary responsibility for the matter, RPC 1.9 bars screening and the new firm could not continue.

Common questions

Q: Does RPC 1.11 (former government lawyers) cover a lawyer at a private firm that represented a government body?

A: No. The Committee held that RPC 1.11 applies to lawyers employed by the government itself, not to outside counsel at a private firm; the analysis is under RPC 1.9 and 1.10.

Q: Is the lawyer personally disqualified from the other side of the case?

A: Yes. Under RPC 1.9(a), she may not represent the party adverse to her former client, the planning board, in the same or a substantially related matter.

Q: Can the new firm keep the case despite hiring her?

A: Yes, if she did not have sole or primary responsibility for the matter. Under RPC 1.10(c), the firm may continue if she is timely screened, is apportioned no fee, and the former client gets written notice.

Q: What if she had been primarily responsible for the planning-board litigation?

A: Then screening would not be available. RPC 1.9 bars seeking consent or screening where the lawyer had sole or primary responsibility for the matter at the prior firm.

Background and rules framework

The opinion applies RPC 1.9 (duties to former clients; cf. Model Rule 1.9), including its bar on screening where the lawyer had sole or primary responsibility and its provision that a public entity cannot consent, and RPC 1.10 (imputation of conflicts and the screening conditions for a side-switching lawyer; cf. Model Rule 1.10). It distinguishes RPC 1.11 (former government lawyers and public officers; cf. Model Rule 1.11), explaining that the government-lawyer screening rule exists to avoid deterring entry into public service and does not reach outside counsel at a private firm.

Citations and references

Rules of Professional Conduct:

• RPC 1.9(a) (duties to former clients); cf. Model Rule 1.9
• RPC 1.10(c) (screening conditions for a side-switching lawyer); cf. Model Rule 1.10
• RPC 1.11 (former government lawyers; held inapplicable); cf. Model Rule 1.11

Other references:

• Michels, New Jersey Attorney Ethics, Section 22:3-1 (Gann 2017)
• ABA Model Rule 1.11, Comment [4] (purpose of government-lawyer screening)

See also

• NJ ACPE Op. 158: Suing a Former Client
• NJ ACPE Op. 154: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 42: Action Against a Former Public Client

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2017/12/n171215a.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2017/12/n171215a.pdf

Original opinion text

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

Issued by ACPE December 13, 2017

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

ACPE OPINION 733

Former Client Conflict of Interest; Lawyer at Law Firm That Represented Planning Board in Litigation Joining Firm that Represented Adverse Party

The Advisory Committee on Professional Ethics received an inquiry from a lawyer who works for a law firm that represented a municipal planning board in lengthy and contentious litigation, a portion of which is still pending. A partner at the firm served as legal counsel for the planning board and Inquirer assisted the partner in various aspects of the litigation. The partner retired and the firm no longer serves as counsel for the planning board. Inquirer asked whether, if she leaves her current firm and joins the law firm that represents the adverse party in this litigation, there would be any restrictions on her practice or that of her new firm.

Inquirer presented an analysis under Rule of Professional Conduct 1.11, which provides that "a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter: (1) in which the lawyer participated personally and substantially as a public officer or employee . . . ." Paragraph (c) of this Rule provides that if a lawyer is disqualified, the law firm may undertake or continue representation if the disqualified lawyer is screened from participation in the matter and the government agency is provided written notice.

The Committee finds that this Rule applies to lawyers employed by the government itself, not to lawyers employed by an outside law firm that represents the government. "The purpose of allowing screening in the former-government-lawyer context is to eliminate the disincentive to public service that would arise if a lawyer's subsequent employer were broadly disqualified from matters involving the government entity." Michels, New Jersey Attorney Ethics, Section 22:3-1, p. 584 (Gann 2017). "The government has a legitimate need to attract qualified lawyers . . . . The provisions for screening and waiver . . . are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service." ABA Model Rules of Professional Conduct 1.11, Comment [4].

Inquirer did not enter public service; she works at a private law firm that was retained to represent the planning board. Therefore, Rule of Professional Conduct 1.11 does not apply. Rather, the proper analysis for this inquiry is under Rules of Professional Conduct 1.9 (former client conflicts) and 1.10 (imputing conflicts of one lawyer to the firm).

Rule of Professional Conduct 1.9 provides:

(a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

Notwithstanding the other provisions of this paragraph, neither consent shall be sought from the client nor screening pursuant to RPC 1.10 permitted in any matter in which the attorney had sole or primary responsibility for the matter in the previous firm.

(d) A public entity cannot consent to a representation otherwise prohibited by this Rule.

Rule of Professional Conduct 1.10 provides:

(a) When lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by RPC 1.7 or RPC 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under RPC 1.9 unless: (1) the matter does not involve a proceeding in which the personally disqualified lawyer had primary responsibility; (2) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (3) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.

Inquirer is personally disqualified from representing the party that is adverse to her former client but she states that she did not have sole or primary responsibility for the litigation involving the planning board; the partner at her firm had such responsibility. Therefore, the strict prohibition against side-switching does not apply to Inquirer's new law firm.

Hence, when Inquirer joins the new firm, she is disqualified from representing its client, the adverse party to her former client the planning board, in any remaining vestiges of the litigation. RPC 1.9(a). Further, Rule of Professional Conduct 1.10(c) permits the firm she joins to continue to represent the adverse party against the planning board provided Inquirer is screened, is apportioned no fee, and the planning board is provided written notice.