I used to run labor relations for a state agency and now I'm in private practice. A former coworker facing termination wants me to represent him against the agency. The agency's lawyers say I have a conflict. Do I?

Plain-English summary

The inquiring attorney served for many years as labor relations administrator for a state Office of Labor Relations, representing the state in labor and employment matters before the state labor relations board, the personnel appeals board, and state and federal courts. The attorney retired from state service in 2005 and had not been associated with the office since June 2004. A state employee facing termination later asked the attorney to represent him or her in a pre-disciplinary hearing; the attorney had not participated in any aspect of the matter relating to that employee during his or her tenure as administrator. Counsel for the state objected, arguing the attorney's access to inside information about the office's operations created a conflict.

The panel applied Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees) rather than Rule 1.9 (Duties to Former Clients), explaining that Rule 1.9 is triggered when a lawyer represented a former client whose interests were adverse to a subsequent client in the same or a substantially related matter, while Rule 1.11(a) disqualifies a former government lawyer only where the lawyer participated personally and substantially in the same matter while a public officer or employee. Citing Comment 4 to Rule 1.11, the panel noted the rule is limited to particular matters involving a specific party, rather than all substantive issues the lawyer worked on, so as not to deter lawyers from entering public service. Because the attorney represented that he or she was not involved in employment matters relating specifically to this employee's termination, the panel concluded the representation is permissible, subject to the attorney's continuing duties under Rule 1.9(c) not to use or reveal information relating to the prior government representation to the former client's disadvantage.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a former government lawyer's disqualification from representing a client adverse to the government turns on whether the lawyer participated personally and substantially in that particular matter while employed by the government, not on the lawyer's general access to agency information or subject-matter knowledge from the position. Where the attorney did not participate in the specific matter, Rule 1.11(a) permits the representation, and Rule 1.11(a)(1) separately imports the Rule 1.9(c) duties not to use or reveal information relating to the former government representation.

Common questions

Q: I left government service years ago. Can I take a case against my former agency?

A: This opinion says it depends on whether you participated personally and substantially in the specific matter while employed there, not on your general familiarity with the agency. If you did not participate in that particular matter, Rule 1.11(a) does not bar the representation.

Q: Does Rule 1.9 (duties to former clients) apply to a former government lawyer the same way it applies to private-practice lawyers changing firms?

A: No. The panel explained that Rule 1.11(a), not Rule 1.9, governs successive government and private representation, and Rule 1.11(a) has its own personal-and-substantial-participation test rather than the same-or-substantially-related-matter test used under Rule 1.9.

Q: If I am cleared to take the matter under Rule 1.11, are there any other restrictions?

A: Yes. Rule 1.11(a)(1) makes the former government lawyer subject to Rule 1.9(c), which bars using information relating to the prior government representation to the disadvantage of the former client, or revealing it, except as the Rules would otherwise permit or require.

Background and rules framework

The opinion interprets Rhode Island Rule 1.11(a) (Special Conflicts of Interest for Former and Current Government Officers and Employees), which tracks Model Rule 1.11(a). Rule 1.11(a) provides that a lawyer who formerly served as a public officer or employee is subject to Rule 1.9(c) and shall not otherwise represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, absent informed consent from the appropriate government agency. The panel quoted Comment 4 to Rule 1.11 describing the rule as balancing the risk that a lawyer's government-derived information or influence could unfairly benefit a later private client against the competing interest in not discouraging lawyers from moving into and out of government service.

Citations and references

Rules of Professional Conduct:

• MR 1.11(a) (special conflicts of interest for former government officers and employees; personal-and-substantial-participation test)
• MR 1.9(c) (duties to former clients; use or disclosure of information relating to a prior representation)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 97-409: Conflicts of Interest, Successive Government and Private Employment
• DC Bar Op. 315: Personal and Substantial Participation in Prior Litigation
• DC Bar Op. 313: Continuing to Represent a Client After Government Service
• Alabama Bar Op. 1994-14: Former Commissioner of State Agency Now Representing Plaintiffs

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%202007-09.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. 2007-09 Request No. 939
                              Issued June 7, 2007

Facts:

    The inquiring attorney was employed by the Department of Administration as the

labor relations administrator for the Office of Labor Relations. The Office of Labor
Relations represents the state in labor relations matters in negotiating state employee
contracts, and before the state labor relations board, the personnel appeals board, and state
and federal courts. The inquiring attorney states that as administrator, he/she represented
the state in every aspect of labor and employment law. After many years of service in this
capacity, the inquiring attorney retired from state service in 2005 and entered private law
practice. He/she has not been associated with the Office of Labor Relations since June
2004.

    Recently, a state employee, facing the threat of termination, requested the inquiring

attorney to represent him/her in a pre-disciplinary hearing. The inquiring attorney states
that he/she did not participate in any aspect of the matter related to this employee during
his/her tenure as administrator. Before the hearing, counsel for the state objected to the
inquiring attorney's representation of the state employee on the basis that the inquiring
attorney possessed inside information about the operation of the Office of Labor Relations,
as well as extensive background information that would place the inquiring attorney in a
conflict situation. The inquiring attorney did not represent the employee at the pre-
disciplinary hearing, but intends to represent him/her at subsequent proceedings.

Issue Presented:

    The inquiring attorney asks whether his/her prior employment as a labor relations

administrator presents a conflict of interest that precludes him/her from representing the
state employee whose interests are adverse to the state as an employer.

Opinion:

    Pursuant to Rule 1.11, the inquiring attorney, a former state labor relations

administrator, may represent the state employee whose interests are adverse to the state as
an employer, provided that the inquiring attorney did not participate personally and
substantially in the matter relating to the state employee's termination while he was a
public employee.
Reasoning:

    The rule applicable to this inquiry is Rule 1.11 entitled "Special Conflicts of

Interest for Former and Current Government Officers and Employees." Rule 1.9 entitled
"Duties to Former Clients" does not apply in this instance. Representation adverse to a
former government client is determined under Rule 1.11(a), which states as follows:

    (a) Except as law may otherwise expressly permit, a lawyer who has
   formerly served as a public officer or employee of the government:

           (1) is subject to Rule 1.9(c); and
           (2) shall not otherwise represent a client in connection with a
               matter in which the lawyer participated personally and
               substantially as a public officer or employee, unless the
               appropriate government agency gives its informed consent,
               confirmed in writing, to the representation.

    Unlike Rule 1.9 which is triggered when a lawyer represented a former client

whose interests were adverse to a subsequent client in the same or a substantially related
matter, Rule 1.11(a) disqualifies a former government lawyer if the lawyer participated
personally and substantially in the same matter while a public officer or employee. The
range of matters covered by Rule 1.11(a) is limited to those involving a specific party or
parties. Limiting disqualification to particular matters involving a specific party, rather
than extending disqualification to all substantive issues on which a former government
lawyer previously worked, prevents the Rule from imposing too severe a deterrent from
entering public service. See Comment (4) to Rule 1.11. The Comment to Rule 1.11
explains that the Rule represents a balancing of interests that are unique to lawyers in
government service.

           On the one hand, where the successive clients are a government
   agency and another client, public or private, the risk exists that power or
   discretion vested in that agency might be used for the special benefit of the
   other client. A lawyer should not be in a position where benefit to the
   other client might affect performance of the lawyer's professional
   functions on behalf of the government. Also, unfair advantage could
   accrue to the other client by reason of access to confidential government
   information about the client's adversary obtainable only through the
   lawyer's government service. On the other hand, the rules governing
   lawyers presently or formerly employed by a government agency should
   not be so restrictive as to inhibit transfer of employment to and from the
   government. The government has a legitimate need to attract qualified
   lawyers as well as to maintain high ethical standards. Thus, a former
   government lawyer is disqualified only from particular matters in which
   the lawyer participated personally and substantially.




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   In the instant inquiry, the inquiring attorney has represented to the Panel that during

his employment, he was not involved in employment matters relating specifically to the
termination of the employee. Insofar as the inquiring attorney did not participate
personally and substantially in the matter relating to the employee's termination, the
Panel concludes that his/her representation of the terminated employee is permissible.

    The Panel advises that pursuant to Rule 1.11(a)(1) the inquiring attorney must

comply with Rule 1.9(c) which states that a lawyer who has formerly represented a client
shall not thereafter:

           (1) use information relating to the representation to the
               disadvantage of the former client except as these Rules would
               permit or require with respect to a client, or when the
               information has become generally known; or
           (2) reveal information relating to the representation except as these
               Rules would permit or require with respect to a client.

    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.

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