When a lawyer moves between criminal defense practice, a district attorney's office, or the bench, which conflicts follow the lawyer, and when are they imputed to the new firm or curable by screening?

Plain-English summary

The opinion addresses three career moves. Lawyer A leaves a criminal-defense partnership to become a deputy district attorney. Deputy district attorney D leaves the DA's office to form a private firm that will defend criminal cases brought by that office. Circuit court judge G leaves the bench to form a private firm that will represent or oppose parties who had matters before the judge. For each, the opinion asks how far the lawyer, and the lawyer's new office or firm, may go in handling related matters.

For Lawyer A (private practice to government), the opinion applies Oregon RPC 1.9 (duties to former clients) and Oregon RPC 1.11(d) (lawyers currently serving in government). Lawyer A cannot prosecute a person Lawyer A formerly represented in the same or a substantially related matter, or a former client of the old firm about whom Lawyer A holds material confidential information, without the former client's and the state's informed consent confirmed in writing. But Lawyer A's disqualification is not imputed to the other lawyers in the DA's office: Oregon RPC 1.11(d) has no imputation provision for lawyers currently in government, so screening is not required (though the opinion notes screening is prudent).

For Lawyer D (government to private practice), the opinion applies Oregon RPC 1.11(a), (b), and (c). Lawyer D cannot defend a matter in which Lawyer D participated personally and substantially as a prosecutor, or a matter handled by other deputies if Lawyer D acquired material confidential information, without the client's and the state's informed consent confirmed in writing; Lawyer D may also be disqualified by "confidential government information" under Oregon RPC 1.11(c). Unlike Lawyer A's situation, Lawyer D's disqualification is imputed to the new DEF firm under Oregon RPC 1.11(b) unless Lawyer D is timely screened under Oregon RPC 1.10(c) and written notice is given to the DA's office.

For Lawyer G (the bench to private practice), the opinion explains that Oregon RPC 1.6, 1.7, 1.9, and 1.11 do not apply because the litigants who appeared before the judge were not the judge's clients; the governing rule is Oregon RPC 1.12(a). If Lawyer G did not participate personally and substantially in a matter as a judge, neither Lawyer G nor the GHI firm is limited. If Lawyer G did so participate, Lawyer G may not work on the matter without all parties' informed consent confirmed in writing, and that disqualification is imputed to the firm under Oregon RPC 1.12(c) unless Lawyer G is screened and written notice is given.

In practice

The opinion holds that, under the current Oregon rules, three variables drive every side-switch: whether the matters are the same or substantially related (or whether the lawyer holds material confidential information), whether the affected clients consent in writing, and whether the lawyer's conflict is imputed to the new office or firm. Per the opinion, imputation differs by direction of the move: a lawyer entering government carries a non-imputed personal conflict (RPC 1.11(d)), while a lawyer leaving government or the bench carries a conflict that reaches the new private firm unless screening and notice occur (RPC 1.11(b), 1.12(c)). Verify the current text of Oregon RPC 1.9, 1.10, 1.11, and 1.12 before relying on any specific point.

Common questions

Q: Can a former defense lawyer now in the DA's office prosecute a person the lawyer used to represent?

A: Not in the same or a substantially related matter without consent. The opinion concludes Lawyer A needs the former client's and the state's informed consent confirmed in writing, but the conflict is not imputed to the rest of the office.

Q: Does a former prosecutor's new firm get disqualified along with the lawyer?

A: Yes, unless screened. Per the opinion, Lawyer D's disqualification is imputed to the new firm under Oregon RPC 1.11(b) unless Lawyer D is timely screened under Oregon RPC 1.10(c) and the DA's office is given written notice.

Q: What rule governs a former judge who joins a private firm?

A: Oregon RPC 1.12(a). The opinion concludes the judge's former conflict rules (1.6, 1.7, 1.9, 1.11) do not apply because litigants were not the judge's clients; if the judge participated personally and substantially, the matter requires all parties' written consent, and the firm is disqualified unless the judge is screened under Oregon RPC 1.12(c).

Q: When is a lawyer's prior involvement "substantial" enough to create a conflict?

A: Per the opinion, citing ABA Formal Op. 342, the lawyer must have been personally involved to an important, material degree; merely reviewing a matter's status at docket call or entering a stipulated order is not personal and substantial participation.

Background and rules framework

The opinion interprets Oregon RPC 1.9 (former-client conflicts and the substantial-relationship test), Oregon RPC 1.10(c) and (e) (screening and imputation, with government conflicts governed by 1.11), Oregon RPC 1.11 (current and former government lawyers, including confidential government information), and Oregon RPC 1.12 (former judges and other adjudicative officers), corresponding to Model Rules 1.9, 1.10, 1.11, and 1.12.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.9 / Model Rule 1.9 (duties to former clients)
• Oregon RPC 1.10(c), (e) / Model Rule 1.10 (imputation and screening)
• Oregon RPC 1.11 / Model Rule 1.11 (current and former government lawyers)
• Oregon RPC 1.12 / Model Rule 1.12 (former judges and adjudicative officers)

Cases:

• In re Brandsness, 299 Or 420, 702 P2d 1098 (1985)
• In re Balocca, 342 Or 279, 151 P3d 154 (2007)
• Cleary v. District Court, 704 P2d 866 (Colo 1985)

Other opinions cited:

• ABA Formal Ethics Op. No. 342 (1975) (substantial responsibility of former government lawyers)
• OSB Formal Ethics Op. No. 2005-11 (former client, matter-specific conflicts)
• OSB Formal Ethics Op. No. 2005-17 (former client, use of confidential information)

See also

• OSB Ethics Op. 2005-11: Former Client, Matter-Specific Conflicts
• OSB Ethics Op. 2005-17: Former Client, Use of Confidential Information
• OSB Ethics Op. 2005-14: Deputy DA Representing Private Parties

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-120.pdf