I'm currently representing a client in matters pending before a state agency, and I've applied for a legal counsel position at that same agency. Is applying or interviewing a conflict, and if I'm hired, can I work on the matters I used to handle for my client?

Plain-English summary

The inquiring attorney, counsel for a nonprofit environmental organization, applied for the position of executive legal counsel to the director of the Rhode Island Department of Environmental Management (RIDEM). On behalf of the organization, the attorney had submitted numerous comments to RIDEM on its rules, regulations, and permits, had litigated on the organization's behalf, and currently represented the organization in several matters pending before RIDEM's administrative adjudicative division (AAD), whose decisions are recommendations to the director. As executive legal counsel, the attorney would advise the director, represent RIDEM in litigation, and manage and oversee RIDEM litigation handled by other agency counsel. The attorney disclosed the application to the organization, which asked the attorney to avoid discussing its pending cases during interviews and to refrain from participating in those matters if hired.

The panel concluded that applying and interviewing do not create a conflict, though the attorney must continue to observe the Rule 1.6 confidentiality duty owed to the organization as a current client. If hired, Rule 1.11(d)(1) (Successive Government and Private Employment) would bar the attorney from participating in matters the attorney participated in personally and substantially while in private practice, meaning the attorney could not work on the organization's pending AAD matters or manage or oversee other agency counsel handling them, though Rule 1.11(d)(1) would not disqualify other RIDEM lawyers from those matters. The panel further found that the attorney's past comments to RIDEM on proposed rules, regulations, and permits do not constitute a "matter" as Rule 1.11(e)(1) defines that term, so the attorney would not be barred from participating in proceedings or providing legal services relating to those rules, regulations, or permits as executive legal counsel. Finally, the panel noted Rule 1.9(b) independently bars the attorney from using information relating to the organization's representation to its disadvantage.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer may apply and interview for a government legal position at an agency the lawyer currently practices before without creating a conflict of interest, subject to the ongoing Rule 1.6 confidentiality duty to the current client. If hired, Rule 1.11(d)(1) confines the disqualification to matters the lawyer personally and substantially handled in private practice, including any oversight role over those specific matters, while leaving the rest of the agency's lawyers free to handle them, and Rule 1.9(b) continues to bar using the former client's information to its disadvantage.

Common questions

Q: Is it a conflict of interest to apply or interview for a legal job at an agency I currently practice before?

A: No, according to this opinion; the panel found no conflict in applying or interviewing, so long as the attorney continues to observe the Rule 1.6 duty of confidentiality to the current client during the process.

Q: If I take the government job, can I work on the same matters I used to handle for my private client?

A: No. The panel held Rule 1.11(d)(1) bars participating in matters the lawyer participated in personally and substantially in private practice, and also bars the lawyer from managing or overseeing other agency counsel on those specific matters.

Q: Does my Rule 1.11 disqualification from certain matters disqualify the rest of the agency's lawyers too?

A: No. The opinion states Rule 1.11(d)(1) does not disqualify other lawyers at the agency from participating in those matters, citing the Comment to Rule 1.11.

Q: Do past comments I submitted to the agency on proposed rules or regulations count as a "matter" that would disqualify me?

A: No, per this opinion. The panel concluded that commenting on proposed rules, regulations, and permits does not constitute a "matter" under Rule 1.11(e)(1), so the attorney is not barred from participating in proceedings or providing legal services relating to those rules, regulations, or permits.

Background and rules framework

The opinion applies Rule 1.11(d)(1) (Successive Government and Private Employment), quoted in full, which bars a lawyer serving as a public officer or employee from participating in a matter the lawyer participated in personally and substantially while in private practice, and Rule 1.11(e)(1), which defines "matter." It also applies Rule 1.9(b) (Conflict of Interest: Former Client), barring use of information relating to a former representation to the former client's disadvantage, and notes the ongoing Rule 1.6 confidentiality obligation to a current client.

Citations and references

Rules of Professional Conduct:

• MR 1.11(d)(1), (e)(1) (Successive Government and Private Employment) / RI Rule 1.11(d)(1), (e)(1)
• MR 1.9(b) (Conflict of Interest: Former Client) / RI Rule 1.9(b)
• MR 1.6 (Confidentiality of Information) / RI Rule 1.6

See also

• ABA Formal Op. 97-409: Conflicts of Interest, Successive Government and Private Employment
• Alabama State Bar Op. 1994-14: Former Commissioner of State Agency Now Representing Plaintiff
• RI EAP Op. 2001-04: Former Government Lawyer Representing Private Clients Against the Same Agency
• RI EAP Op. 2007-04: Council Member Must Recuse From a Matter He Investigated for a Consultation Contact in Private Practice, Whether or Not an Attorney-Client Relationship Formed

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%202006-02.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. 2006-02 Request No. 916
Issued June 8, 2006

FACT:

The inquiring attorney has applied for the position of executive legal counsel to the director of the Rhode Island Department of Environmental Management (RIDEM). The inquiring attorney is currently employed as counsel for a nonprofit environmental organization. On behalf of the organization, the inquiring attorney has submitted numerous comments to RIDEM regarding its rules, regulations, and permits, and has brought litigation on behalf of the organization's members. The inquiring attorney currently represents the organization in several matters that are pending before RIDEM's administrative adjudicative division (AAD.) Decisions of the AAD are recommendations to the director.

As executive legal counsel to the director, the inquiring attorney would advise the director on legal matters, represent RIDEM in litigation, and manage and oversee RIDEM litigation handled by other agency counsel.

The inquiring attorney has disclosed to the environmental organization the fact he/she has applied for the legal position at RIDEM. The organization has requested that the inquiring attorney refrain from discussing the organization's pending cases at RIDEM during his/her interviews for the position, and refrain also from participating in those matters should he be hired by RIDEM.

ISSUE PRESENTED:

The inquiring attorney asks whether applying and interviewing for the legal counsel position at RIDEM, and whether accepting the position, create a conflict of interest under the Rules of Professional Conduct.

OPINION:

It is not a conflict of interest for the inquiring attorney to apply and interview for the position of executive legal counsel to the director of RIDEM. The inquiring attorney may accept the legal counsel position provided that pursuant to Rule 1.11 (d) (1) he/she does not participate in those matters in which he/she participated personally and substantially while in private practice. Pursuant to Rule 1.9 (b), he/she is prohibited from using information relating to the representation of the environmental organization to its disadvantage. Final 2006-02 Page 2 of 3

REASONING:

Applying and interviewing for the executive legal counsel position at RIDEM do not create a conflict of interest for the inquiring attorney. In doing so, however, the inquiring attorney must abide by the obligation of confidentiality he/she owes to his/her present client, the organization, under Rule 1.6.

If the inquiring attorney is successful in his/her pursuit of the legal position at RIDEM, the pertinent Rule of Professional Conduct is Rule 1.11 entitled, "Successive Government and Private Employment." In applicable part, it states as follows:

(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or

Rule 1.11 (d) (1) does not prohibit the inquiring attorney from serving as the executive legal counsel to the RIDEM director. However, having represented the environmental organization in several cases that are pending before the agency's AAD, the inquiring attorney as executive legal counsel would be prohibited from participating in those pending matters. Rule 1.11 (d) (1) does not disqualify other lawyers in the agency from participating in those matters. Comment to Rule 1.11. The inquiring attorney as executive legal counsel would be prohibited, however, from managing or overseeing other agency counsel handling those matters.

The inquiring attorney has submitted comments to RIDEM on behalf of the environmental organization regarding various agency rules, regulations, and permits. The term "matter" is defined in Rule 1.11 (e) (1) as follows:

(e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
Final 2006-02
Page 3 of 3

The Panel does not believe that comment on proposed rules, regulations, and permits, constitutes a "matter" for purposes of Rule 1.11. As executive legal counsel to the director, therefore, the inquiring attorney is not prohibited from participating in proceedings or from providing legal services relating to those rules, regulations, or permits.

The Panel concludes that it is not a conflict of interest for the inquiring attorney to apply and interview for the position of executive legal counsel to the director of RIDEM. The Panel further concludes that the inquiring attorney may accept the legal position at RIDEM provided that pursuant to Rule 1.11 (d) (1) he/she does not participate in those matters in which he/she participated personally and substantially while in private practice. Pursuant to Rule 1.9 (b), the inquiring attorney is prohibited from using information relating to the representation of his/her present client to its disadvantage.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have bearing on the issues raised by this inquiry.