I was a part-time assistant solicitor prosecuting misdemeanors and housing matters for a municipality. Now that I'm in private practice, can I represent people the municipality's police department charges, or people cited in housing court?

Plain-English summary

The inquiring attorney served for many years, until December 2008, as a part-time assistant solicitor for a municipality, prosecuting misdemeanor complaints filed by the municipality's police department in district court and prosecuting housing matters in municipal court. Now in private practice, the attorney wanted to represent individuals charged by the municipality's police department in district court and individuals cited for housing matters in municipal court.

The panel applied Rule 1.11(a), which bars a former public officer or employee from representing a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, absent the government agency's informed consent. The panel noted that the former version of Rule 1.11 had imposed a categorical one-year prohibition on a former government lawyer representing a private client before the same government office or agency, but that this one-year prohibition was not retained when the current Rules of Professional Conduct were adopted, effective April 15, 2007. Rule 1.11(a)(1) also subjects the attorney to Rule 1.9(c)'s bar on using or revealing information relating to the former government representation to the former client's disadvantage. The panel concluded that the attorney may represent clients in the described categories so long as the specific matters are not ones in which the attorney participated personally and substantially as assistant solicitor.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a former part-time municipal prosecutor is not categorically barred from representing private clients against the municipality's police department or in municipal housing matters; the current Rule 1.11 replaced the former rule's flat one-year bar with a matter-specific personal-and-substantial-participation test. The attorney remains subject to Rule 1.9(c)'s duties regarding information from the former government representation.

Common questions

Q: I used to prosecute cases for my town. Can I now defend people the town is prosecuting?

A: Generally yes, according to this opinion, as long as the specific matter is not one you participated in personally and substantially while working for the municipality. The current Rule 1.11 does not impose the flat one-year ban that the former rule did.

Q: Does the one-year "cooling off" rule for former government lawyers still apply in Rhode Island?

A: No, according to the opinion. The panel notes the one-year prohibition in the former Rule 1.11 was not retained when the current Rules of Professional Conduct became effective April 15, 2007.

Q: What else must I keep in mind about information I learned as assistant solicitor?

A: The opinion notes that Rule 1.11(a)(1) subjects the former government lawyer to Rule 1.9(c), which bars using or revealing information relating to the prior representation to the former client's (here, the municipality's) disadvantage, except as the Rules 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) and bars a former government lawyer from representing a client in a matter the lawyer participated in personally and substantially while a public officer or employee, absent the agency's informed consent. Rule 1.11(e) defines "matter" to require a specific party or parties. The opinion also applies Rule 1.9(c) (duties to former clients) as imported by Rule 1.11(a)(1).

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 1.11(e) (definition of "matter"; specific party or parties required)
• 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

• Alabama Bar Op. 1993-09: Part-Time Assistant District Attorney's Representation of Homicide Victim's Estate Discussed Under Rule 1.11
• Alabama Bar Op. 1991-44: District Attorney's Office May Prosecute Criminal Defendant Where Defendant Is Victim and Prosecuting Witness in Another Case
• Alabama Bar Op. 1990-05: Imputed Disqualification Rule as Applied to District Attorneys and Part-Time District Attorneys
• RI EAP Op. 2007-09: Former State Labor Relations Administrator May Represent Terminated Employee Absent Personal, Substantial Participation

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%2009-01.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.2009-01 Request No. 959
Issued April 9, 2009

FACTS:

The inquiring attorney was a part-time assistant solicitor for a municipality for many years until December 2008. During that time, the inquiring attorney was the prosecutor in district court for misdemeanor complaints filed by the municipality's police department. He/she was also the prosecutor for housing matters in municipal court. He/she now has a private law practice and would like to represent individuals charged by the municipality's police department before district court, and individuals cited for housing matters before the municipal court.

ISSUE PRESENTED:

The inquiring attorney asks whether he/she may represent individuals charged by the municipality's police department before the district court, and individuals cited for housing matters before the municipal court.

OPINION:

The inquiring attorney may represent clients before the municipal court in connection with municipal housing matters, and clients charged by the municipal police department, provided that the matters are not matters in which the inquiring attorney participated personally and substantially as an assistant solicitor.

REASONING:

Rule 1.11 of the Rules of Professional Conduct is applicable to this inquiry. In pertinent part it states:

Rule 1.11. Special conflicts of interest for former and current government officers and employees. (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 EAP 2009-01
Page 2

employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(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
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Former Rule 1.11 prohibited a lawyer who had been employed by a government office or agency from representing a private client before that government office or agency for a period of one year following the termination of such employment. The one year prohibition contained in former Rule 1.11 was not retained in the current Rules of Professional Conduct which were adopted by Rhode Island Supreme Court Order dated February 16, 2007, and which became effective April 15, 2007.

Rule 1.11(a)(1) imposes on the inquiring attorney the obligations set forth in Rule 1.9(c) which states:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter 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.

In addition, Rule 1.11 (a)(2) prohibits the inquiring attorney from representing clients in connection with matters in which he/she participated personally and substantially while an assistant solicitor of the municipality, unless the municipality gives its consent.
EAP 2009-01
Page 3

The Panel concludes that the inquiring attorney may represent clients in municipal court in connection with municipal housing matters, and clients who are charged by the municipality's police department, provided that the matters are not matters in which the inquiring attorney participated personally and substantially as an assistant solicitor for the municipality.

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