Can a government agency lawyer work on matters involving litigation she earlier handled against the agency for a private client?

Plain-English summary

The inquirer is a lawyer for a municipal agency who, while previously at an advocacy organization, participated personally and substantially in class-action litigation against that same agency, which was later settled. In the agency role she sets policy for programs serving constituents, and may be asked to advise on programs in the same settings that gave rise to the litigation. She does not advise the agency on compliance with the settlement. She asked whether her prior involvement creates ethical issues for her current work (¶¶ 1-4).

The committee identified two rules that apply: Rule 1.9 (duties to former clients) and Rule 1.11 (current and former government lawyers). Rule 1.11(d) governs a lawyer who leaves private practice for government, and unlike Rule 1.11(a), it applies in addition to Rule 1.9(a). Rule 1.11(d) bars a current government lawyer from participating in a matter in which she participated personally and substantially while in private practice, regardless of adversity, to prevent exploiting public office for a former client's advantage (¶¶ 5-10).

The committee analyzed whether the current work is the "same matter" as the litigation, using Comment [10] factors to Rule 1.11: whether the matters involve the same basic facts, the same or related parties, and how much time has elapsed. It distinguished programs not involved in the litigation (likely not the same matter) from programs that were involved (requiring closer scrutiny). On parties, it read "a specific party or parties" narrowly in the class-action context, treating only named plaintiffs as parties, which weighed against sameness (¶¶ 11-18).

On substantial relationship under Rule 1.9, the committee explained that test is more easily met than sameness, but that the mere overlap of legal issues does not make matters substantially related; "issue" or "positional" conflicts are typically not disqualifying as to former clients, especially outside litigation. Where a matter is substantially related, the lawyer must also assess whether the agency's interest is materially adverse to the former client. Finally, the committee explained that informed consent can cure a Rule 1.9 conflict but cannot cure a Rule 1.11(d) bar, where the only exceptions are when law expressly provides or no one else may act in the lawyer's stead (¶¶ 19-27).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that the lawyer may not advise the agency on compliance with the litigation's settlement agreement as to the parties in that litigation. Per the opinion, she may advise the agency on its programs unless the matter is the same as the litigation, or is substantially related and the agency's interest is materially adverse to the former client. The committee treated advice on programs not involved in the litigation as likely neither the same nor substantially related, and advice on programs that were involved as requiring closer factual scrutiny. The opinion notes that a Rule 1.9 conflict may be cured by the former client's informed consent, confirmed in writing, but a Rule 1.11(d) bar may not.

Common questions

Q: Can the lawyer advise the agency on complying with the settlement she helped win against it?

A: No, as to the parties in that litigation. The committee noted such advice would seemingly be prohibited under both Rule 1.9(a) and Rule 1.11(d), and the inquirer did not do that work (¶ 12).

Q: Does switching from a private client to the government always create a conflict?

A: No. The committee explained that advice on agency programs not involved in the prior litigation is unlikely to be the same or a substantially related matter unless the parties and underlying facts are the same (¶ 18).

Q: Does overlapping legal issues make two matters "substantially related"?

A: No. The committee stated that the mere fact that the new matter involves legal issues also present in the litigation does not make the matters substantially related (¶ 22).

Q: Can the former client's consent cure the conflict?

A: Consent can cure a Rule 1.9 conflict but not a Rule 1.11(d) bar. Where the lawyer participated personally and substantially in the same matter, consent does not authorize the representation (¶¶ 24-26).

Background and rules framework

The opinion interprets New York Rule 1.9(a) (duties to former clients) and Rule 1.11(d) (current government lawyer who formerly worked in private practice), using the definition of "matter" in Rule 1.0(l). These correspond to ABA Model Rules 1.9, 1.11, and 1.0. The committee emphasized that Rule 1.11(d) applies in addition to, not instead of, Rule 1.9(a) for lawyers moving from private practice into government.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / NY RPC 1.9(a) (duties to former clients; substantial relationship)
• MR 1.11 / NY RPC 1.11(d) (current government lawyer formerly in private practice)
• MR 1.0 / NY RPC 1.0(l) (definition of "matter")

Other opinions cited:

• N.Y. State 904 (2012): criminal investigation and civil restitution claim were not the same matter
• N.Y. State 1008 (2014): "materially advances" inquiry is fact-intensive
• N.Y. City 2004-1 (2004): class members not individually represented may be adverse in unrelated matters

See also

• NY State Bar Op. 1105: Imputed conflict from a part-time public defender
• NY State Bar Op. 1073: Defense counsel on a conviction integrity committee
• NY State Bar Op. 1103: Representing a competitor of a former client

Source

• Landing page: https://nysba.org/ethics-opinion-1029/