Ezel / Ethics Opinions / NYSBA
NYSBA 2018-04-02

Can a former county social-services lawyer go into private practice and oppose that same agency, including in support-enforcement cases?

Short answer: Yes, unless the lawyer was personally and substantially involved in, or holds confidential information about, the same specific matter while in government service. Rule 1.11(a)'s narrow same-matter test, not Rule 1.9(a)'s broader 'substantially related' test, controls.
Currency note: this opinion is from 2018
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 Not binding precedent.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 1148: Former government lawyer opposing the former employer

Short answer: A lawyer who left a county social-services agency may represent clients against that agency, including in support-enforcement proceedings, unless the lawyer was personally and substantially involved in, or holds confidential information about, the same specific matter while employed there.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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 formerly worked in a county social-services department's enforcement unit, where the attorneys represent the department in locating absent parents and enforcing support obligations. After retiring, the inquirer opened a solo firm in the same region and wants to represent clients adverse to the department, including opposing its enforcement actions. The committee notes it interprets only the Rules and does not decide any statutory or county-ethics-code limits on former government employees.

The committee holds there is no absolute bar. The governing rule is Rule 1.11(a)(2), which prohibits a former government lawyer from representing a client in a matter in which the lawyer participated "personally and substantially" as a public officer or employee, absent the agency's informed written consent. By negative implication, the former government lawyer may represent private clients on matters in which the lawyer did not so participate. The committee stresses, citing N.Y. State 748 (2001) and N.Y. State 453 (1976), that disqualification requires personal participation to a significant extent in the specific matter; merely having been government counsel in unrelated matters of the same type is not enough, and the rule should not be read to keep former government lawyers from later practicing in the areas where they gained expertise in public service.

The heart of the opinion distinguishes Rule 1.11(a) from Rule 1.9(a). Rule 1.9(a) bars adversity to a former client in "the same or a substantially related matter," while Rule 1.11(a) bars only the "same specific matter" in which the lawyer was personally and substantially involved. The committee rejects importing Rule 1.9(a)'s "playbook" or "substantial relationship" approach into the government context, because many government legal departments handle only one type of case and that approach would defeat Rule 1.11's purpose of encouraging public service. So Rule 1.11(a) "ousts" Rule 1.9(a) for former government lawyers, and the same-matter test is materially narrower than the substantial-relationship test. The conclusion rests on two assumptions: the lawyer holds no confidential information about the specific matter from government service, and is not otherwise barred by an ongoing confidentiality duty (Rule 1.11(a)(1) incorporates Rule 1.9(c), and Rule 1.11(c) separately bars using confidential government information against a third person, which consent cannot waive). Knowing only how the agency generally handles such matters, untethered to personal and substantial involvement in or confidences about the specific matter, does not disqualify the lawyer.

In practice

Under this opinion, a former government lawyer may oppose the former agency, including in the same category of cases the lawyer once handled for it, so long as the lawyer was not personally and substantially involved in the specific matter now at issue and holds no confidential information about it. The committee directs the analysis to Rule 1.11(a)'s narrow same-matter standard rather than Rule 1.9(a)'s broader substantial-relationship test, and identifies the limiting factors as personal and substantial participation in the specific matter and the lawyer's continuing confidentiality obligations under Rules 1.9(c) and 1.11(c). General familiarity with the agency's practices is not, by itself, disqualifying.

Common questions

Q: Can a former government lawyer sue or oppose the agency that employed the lawyer?

A: Yes, unless the lawyer was personally and substantially involved in the same specific matter while in government service. Rule 1.11(a)(2) bars only that same-matter overlap, absent the agency's informed written consent (Opinion 1148 ¶¶ 5, 11-12).

Q: Does the broader Rule 1.9(a) "substantially related matter" test apply to former government lawyers?

A: No. The committee holds Rule 1.11(a)'s narrower "same specific matter" test ousts Rule 1.9(a) in the government context, to avoid deterring public service (¶¶ 9-10).

Q: Is knowing how the agency usually handles cases enough to disqualify the lawyer?

A: No. General knowledge of the agency's practices, without personal and substantial involvement in or confidential information about the specific matter, does not bar the representation (¶ 11).

Background and rules framework

The opinion centers on Rule 1.11(a) (Model Rule 1.11), the conflict rule specific to former government lawyers, and contrasts it with Rule 1.9(a) (Model Rule 1.9), the general former-client rule. Rule 1.11(a)(1) incorporates Rule 1.9(c) on a former client's confidential information, and Rule 1.11(c) bars using confidential government information against a third person, a bar consent cannot waive. Rule 1.6 (Model Rule 1.6) supplies the underlying confidentiality duty, and Rule 1.0(j) defines informed consent.

Citations and references

Rules of Professional Conduct:

  • New York Rule 1.11(a) (Model Rule 1.11): former government lawyer; personal and substantial participation in the same matter
  • New York Rule 1.9(a), (c) (Model Rule 1.9): former-client conflicts and confidences
  • New York Rule 1.11(c): use of confidential government information against a third person
  • New York Rule 1.6 (Model Rule 1.6): confidentiality

Statutes:

  • N.Y. Social Services Law § 111-c(1): duties of a county social-services department

Other opinions cited:

  • N.Y. State 1029 (2014): Rule 1.11(a)(2) as the principal former-government-lawyer rule
  • N.Y. State 748 (2001): disqualification requires personal participation to a significant extent
  • N.Y. State 453 (1976): former government lawyers may practice in areas of public-service expertise
  • N.Y. State 901 (2011): assessing competence when holding non-disclosable confidences

See also

Source