As a former state agency lawyer now in private practice, can I represent private clients bringing the same type of statutory claims against my old agency, as long as I wasn't personally involved in their specific cases?

Currency note

This opinion was issued in 2001, before Rhode Island's later renumbering of the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Plain-English summary

A former state agency lawyer, who had represented the agency in statutory claims brought against it by individuals, went into private practice. Several attorneys asked the former agency lawyer to serve as consultant or trial counsel for private clients bringing the same kind of statutory claims against the agency, in matters the lawyer had not personally handled while at the agency.

The panel held that Rule 1.11, not Rule 1.9(a), governs a former government lawyer's conflicts, citing ABA Formal Opinion 97-409 (1997) and the panel's own prior opinion, R.I. Sup. Ct. Ethics Advisory Panel Op. 99-04 (1999). Under Rule 1.11(a), a former government lawyer is barred only from matters in which the lawyer personally participated as a public officer or employee; the rule does not disqualify the lawyer from handling the same category of case generally.

The panel added that the representation remained subject to Rule 1.9(b), which bars a lawyer from using information relating to a former representation to the former client's disadvantage. Citing ABA Formal Opinion 97-409 for the point that Model Rule 1.11 displaces Model Rule 1.9(a) and (b) for former government lawyers but that the confidential-information provision (Model Rule 1.9(c), corresponding to Rhode Island's Rule 1.9(b)) still applies, the panel concluded the former agency lawyer could take the new representations but would be disqualified if doing so required using or disclosing confidential information obtained from the agency.

Common questions

Q: If I used to defend a government agency, am I barred from ever suing that same agency in private practice?

A: No. The panel held Rule 1.11 bars a former government lawyer only from the specific matters personally handled, not from the same type of case generally.

Q: Does it matter that these are the same kind of statutory claims I used to defend?

A: Not by itself. The panel found no bar simply because the new cases are the same type of claim, as long as the lawyer did not personally participate in those specific matters.

Q: What could still disqualify me from taking these cases?

A: The panel held Rule 1.9(b) would bar the representation if using it required the lawyer to use or disclose confidential information obtained while representing the agency.

Background and rules framework

The opinion applies Rule 1.11(a) (Model Rule 1.11, Successive Government and Private Employment), which the panel quoted as barring a lawyer from representing a private client in a matter in which the lawyer personally participated as a public officer or employee, subject to screening and notice provisions for other lawyers in the same firm. It also applies Rule 1.9(b) (corresponding to Model Rule 1.9(c)), barring use of information relating to a former representation to the former client's disadvantage.

Citations and references

Rules of Professional Conduct:

• MR 1.11(a) (Successive Government and Private Employment) / RI Rule 1.11(a)
• MR 1.9(c) (use of former client's confidential information) / RI Rule 1.9(b)

Other opinions cited:

• ABA Standing Committee on Ethics and Professional Responsibility, Formal Op. 97-409 (1997): Model Rule 1.11 governs former-government-lawyer conflicts, displacing Model Rule 1.9(a)-(b), while the confidential-information provision still applies
• R.I. Sup. Ct. Ethics Advisory Panel Op. 99-04 (1999): Rule 1.11 governs the scope of a former government employee's conflicts

See also

• ABA Formal Op. 97-409: Successive Government and Private Employment
• RI EAP Op. 2006-02: Applying for a Government Legal Position While Representing a Client Before That Agency Is Not a Conflict; Rule 1.11 Limits Participation if Hired

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202001-04.pdf

Original opinion text

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

Final
Rhode Island Supreme Court
Ethics Advisory Panel
Opinion No. 2001-04, Request No. 824
Issued May 17, 2001

FACTS:

The inquiring attorney is a former legal counsel for a state agency. As agency counsel, he/she represented the agency in claims made by individuals against the agency in court proceedings pursuant to a statute. The inquiring attorney is now in private practice. Several attorneys have requested that he/she serve as a consultant or as trial counsel on behalf of clients who have filed claims against the agency pursuant to the statute.

ISSUE PRESENTED:

The inquiring attorney asks whether he/she may represent clients in such statutory petitions against the agency in cases in which he was not involved as legal counsel to the agency.

OPINION:

The inquiring attorney may represent private clients in the same type of statutory petitions against the agency as he/she handled as agency counsel. While Rule 1.11 bars the inquiring attorney only from those particular matters in which he/she participated as a government lawyer, the inquiring attorney would be subject to disqualification pursuant to Rule 1.9(b) if the subsequent representation would require him/her to use or disclose confidential information about his/her former government client.

REASONING:

Rule 1.11, and not Rule 1.9(a), governs the scope of a former government employee's conflict of interest obligations. See ABA Standing Comm. On Ethics and Professional Responsibility Formal Op. 97-409 (1997); R.I. Sup. Ct. Ethics Advisory Panel Op. 99-04 (1999). Rule 1.11 states in pertinent part:

Rule 1.11. Successive Government and Private Employment. - (a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
Final 2001-04
Page 2

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Rule 1.11(a) does not disqualify a former government lawyer from representing private clients against his/her government agency in connection with the same kinds of cases he/she handled while a government employee. See ABA Formal Op. 97-409 (1997). Pursuant to Rule 1.11(a), a former government lawyer is barred only from those particular matters in which he/she personally participated. 1 The Panel is of the opinion that the representation is also subject, however, to the constraints of Rule 1.9(b). See ABA Formal Op. 97-409 (1997) (While ABA Model Rule 1.11 pre-empts the field over Model Rule 1.9(a) and (b) regarding former government lawyer's conflict of interest obligations, Model Rule 1.9(c) on use of confidential information about former client (which is the counterpart to R.I. Rule 1.9(b)) applies to former government lawyers.)

Rule 1.9(b) states:
A lawyer who has formerly represented a client in a matter shall not thereafter:

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

Accordingly, the inquiring attorney may represent private clients in the same type of statutory petitions against the agency he/she handled while employed by the agency. While the inquiring attorney is barred only from those particular matters in which he/she participated as a government lawyer, the inquiring attorney is also subject to disqualification pursuant to Rule 1.9(b) if the subsequent private representation would require him/her to use or disclose confidential information about his/her former government client. See ABA Formal Op. 97-409 (1997).

1
Under Rule 1.11(c) which is not applicable to this inquiry, a former government lawyer also is barred from representing a client whose interests are adverse to a person about whom the lawyer acquired confidential government information while employed by the government.