Ezel / Ethics Opinions / NYSBA
NYSBA 2014-10-23

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

Short answer: Not on the same matter. A lawyer who participated personally and substantially in the prior litigation may not advise the agency on that same matter (such as compliance with its settlement), and consent cannot cure that Rule 1.11(d) bar. On substantially related matters she may act only with the former client's informed consent, and unrelated programs generally pose no conflict.
Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1029: Conflicts for government lawyers with prior private clients

Short answer: A lawyer who has moved from private practice into a government agency may not advise the agency on the same matter as litigation she earlier brought against it (such as compliance with the settlement), and where she participated personally and substantially that bar under Rule 1.11(d) cannot be cured by consent; on substantially related matters she may act only with the former client's informed consent, and advice on programs not involved in the litigation generally is neither the same nor a substantially related matter.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

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

Source