I used to handle enforcement and cleanup litigation against a contaminated property's owners and operators while working for a state agency. Can I now represent someone who wants to buy that same property?
Apply this to your situation
This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney is a former lawyer for the Rhode Island Department of Environmental Management (DEM). While there, the attorney took part in DEM's investigation of, and enforcement and legal proceedings against, the owners and operators of a gas station whose underground storage tanks had contaminated the land, including administrative enforcement, a Superior Court action, and bankruptcy proceedings. Since leaving DEM in 2007, the attorney has been asked to represent a prospective buyer of the same property, including negotiating and securing agreements with DEM under Rhode Island's brownfield statute for the buyer's cleanup and redevelopment plan.
The panel applied Rule 1.11, which bars a former government lawyer from representing a client "in connection with a matter in which the lawyer participated personally and substantially" as a public employee, absent the agency's informed written consent. The question turned on whether the former DEM matter and the proposed representation of the buyer are the "same" matter, since Rule 1.11 defines "matter" as a particular proceeding, transaction, or controversy involving specific parties, and the comments direct the lawyer to weigh whether the two matters share the same basic facts, the same or related parties, and the time elapsed.
The panel concluded the matters are not the same. The parties differ: the former matter involved DEM, the Attorney General, and the former owners and operators as adversaries, while the proposed matter involves the buyer, the current owner, and DEM as a cooperating regulator rather than an adversary. The core facts and issues differ too. The former matter turned on identifying the contamination's source and the responsible parties and compelling cleanup and cost reimbursement, while the proposed matter turns on the property's current condition, the buyer's planned reuse, and the cleanup obligations that reuse will require. The panel also noted the buyer comes to DEM aligned with the agency's brownfield goals, not adverse to it, and that the attorney has no confidential information relevant to the new representation since DEM's site data is public. Because the former and proposed matters share only the same underlying property and are otherwise materially different, the panel found no Rule 1.11 conflict.
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 Rule 1.11 disqualification is limited to the specific "matter" the lawyer personally and substantially worked on in government, assessed by comparing the parties, the basic facts, and the time elapsed between the two matters; representing a new client in a later transaction touching the same underlying property or subject is not automatically the same matter.
Common questions
Q: I worked on a government enforcement case involving a piece of property. Am I barred from ever touching that property again in private practice?
A: Not automatically. The opinion holds the Rule 1.11 bar applies only to the same "matter," which the panel assessed by comparing the parties, the core facts and issues, and the time elapsed, not merely whether the same property is involved.
Q: Does it matter that I might have picked up confidential information about the site while working for the agency?
A: The panel found this was not a barrier here because the attorney stated he had no confidential information relevant to the new representation, and DEM's site investigation data is a matter of public record; the opinion adds that Rule 1.11(a)(1) subjects a former government lawyer to Rule 1.9(c)'s confidentiality restrictions regardless, and that general "playbook" familiarity cannot itself establish a conflict.
Q: How is Rule 1.11 different from the ordinary former-client conflict rule, Rule 1.9?
A: The opinion explains that Rule 1.11 is more restrictive than Rule 1.9 in one respect (it can disqualify a former government employee even if there was no attorney-client relationship in the earlier matter) and less restrictive in another (unlike Rule 1.9, which also reaches "substantially related" matters, Rule 1.11 disqualifies only from the same matter).
Background and rules framework
The opinion applies Rhode Island Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees), which bars a former public officer or employee from representing a client in connection with a matter the lawyer participated in personally and substantially while in government, absent the agency's informed written consent, and separately subjects the lawyer to Rule 1.9(c)'s confidentiality duties. Rule 1.11(e) defines "matter" to include a particular proceeding, transaction, claim, or controversy involving specific parties. The panel's analysis draws on the Rule 1.11 comments' guidance to compare the basic facts, the parties, and the time elapsed between two matters, and cites ABA Formal Ethics Opinion 342 (1975) for the same "discrete, identifiable transaction... involving specific parties" formulation under the predecessor Code of Professional Responsibility.
Citations and references
Rules of Professional Conduct:
- MR 1.11(a) (special conflicts for former government lawyers; same-matter disqualification absent agency consent)
- MR 1.11(e) (definition of "matter")
- MR 1.9(c) (confidentiality duties applicable to former government lawyers via Rule 1.11(a)(1))
Statutes:
- R.I. Gen. Laws 23-19.14-1 and -2 (brownfield redevelopment objectives)
Cases:
- None cited.
Other opinions cited:
- ABA Formal Ethics Op. 342 (1975): construing "matter" under the former Code of Professional Responsibility as a discrete, identifiable transaction or conduct involving a particular situation and specific parties.
See also
- ABA Formal Op. 97-409: Conflicts of Interest: Successive Government and Private Employment
- Alabama Ethics Op. 1994-14: Ex-Official vs. Former Agency
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%202010-08.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. 2010-08
Issued November 16, 2010
FACTS
The inquiring attorney is a former lawyer for the Rhode Island Department of
Environmental Management ("DEM"). While employed by the DEM, he/she participated
in the DEM's investigation of and enforcement and legal proceedings against the parties
who owned and the parties who operated a gasoline station on certain land that was
contaminated by underground storage tanks. The inquiring attorney left the DEM in 2007
and is now in private practice. He/she is asking the Panel whether he/she may now
represent a buyer of the same land.
The inquiring attorney represented the DEM in administrative enforcement
proceedings, in a Superior Court action, and in bankruptcy actions. The matters related to
the DEM's efforts to identify the source of and persons responsible for gasoline
contamination on the property, to compel the owners and operators to clean up the
contamination on and emanating from the property, and to reimburse the DEM for clean-
up costs that it incurred as part of its emergency response to the contamination.
During the pendency of the proceedings, the owners of the contaminated property
abandoned the property in bankruptcy. The property was subsequently sold at a tax sale.
The DEM has not pursued clean-up on the property with the current owner. The inquiring
attorney's prospective client will buy the property from the new owner.
The inquiring attorney informs the Panel that the prospective buyer of the land will
be required by Rhode Island's brownfield statute to present the DEM with a planned
project for the property and will work with DEM on a plan for clean-up of residual
contamination to the extent necessary for the project. The inquiring attorney proposes to
represent the buyer in the purchase of the property as well as in negotiating and securing
agreements with the DEM relating to the buyer's project and remediation. The inquiring
attorney provided the Panel with additional facts which are set forth in the Panel's
discussion that follows.
ISSUE PRESENTED
Having participated in the DEM's investigation of and enforcement and legal
proceedings against the parties who owned and the parties who operated a gasoline station
on certain contaminated land, the inquiring attorney asks whether he/she may now
represent a prospective buyer of the same land.
Final Op. 2010-08
Page 2
OPINION
It is not a conflict of interest under Rule 1.11 for a former DEM lawyer who
participated in the DEM's investigation of and enforcement and legal proceedings against
the parties who owned and the parties who operated a gasoline station on certain
contaminated land to now represent a prospective buyer of the same property.
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, except to the extent required by Rule 1.11.
Paragraph (a) of Rule 1.11 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.
The Panel's opinion in this inquiry will turn on whether the matter that the
inquiring attorney worked on while employed by the DEM (former matter) is the same
matter as his/her proposed representation of the prospective buyer.
What is a Matter?
Paragraph (e) of Rule 1.11 states:
(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 Op. 2010-08
Page 3
(2) any other matter covered by the conflict of
interest rules of the appropriate government
agency.
The Comment to Rule 1.11 explains:
Thus a former government lawyer is disqualified only
from particular matters in which the lawyer
participated personally and substantially. The
provisions for screening and waiver in paragraph (b)
are necessary to prevent the disqualification rule from
imposing too severe a deterrent against entering
public service. The limitation of disqualification in
paragraphs (a)(2) and (d)(2) to matters involving a
specific party or parties, rather than extending
disqualification to all substantive issues on which the
lawyer worked, serves a similar function.
Comment [10] to Rule 1.11 further explains:
[10] For purposes of paragraph (e) of this Rule, a
"matter" may continue in another form. In
determining whether two particular matters are the
same, the lawyer should consider the extent to which
the matters involve the same basic facts, the same or
related parties, and the time elapsed."
ABA Formal Ethics Op. 342 (1975) discussed the word "matter" as it was used in
the former Code of Responsibility. The ABA Standing Committee on Ethics and
Professional Responsibility stated that "matter" refers to "a discrete, identifiable
transaction or conduct involving a particular situation and specific parties."
Analysis
The ultimate inquiry before the Panel is whether the investigation and enforcement
matters against the parties who owned and operated the contaminated property, and the
related Superior Court and bankruptcy matters are the same as the purchase of the property
by a subsequent buyer, and the buyer's pre-purchase negotiations with the DEM. The
Panel is of the opinion that the matters are not the same.
A determination of whether matters are the same for purposes of Rule 1.11 is fact-
sensitive. Aside from the obvious fact that the subject property is common to both the
former matter and the proposed representation, there are differences in the parties and in
the basic facts and issues. The parties in the former matter are not the same parties in the
prospective matter. The parties in the former matter were the DEM, the Rhode Island
Final Op. 2010-08
Page 4
Attorney General, the owners of the property, and the operators of the gasoline station.
The parties involved in the proposed representation are the prospective buyer and the
current owner of the property with respect to the purchase and sale of the property; and the
DEM with respect to pre-purchase negotiations with the buyer under the brownfield
statute.
The basic facts and issues differ. The former matter involved the government's
allegations of administrative and statutory violations against the owners of the property
and the operators of the gasoline station. In the former matter, critical facts were the
identification of the source of the contamination; the identity of parties responsible for the
contamination; the type of contamination; whether the contamination impacted the waters
of the state and land within the state; whether the contamination migrated off the property;
whether the contamination was related to the contamination of a municipal well; the type
and adequacy of response actions taken by the persons responsible; the response actions
taken by the state and the attendant costs to the state. A notice of violations against the
owners was filed by the DEM in the municipality's land evidence records. A lawsuit for
reimbursement of DEM's costs of clean-up was filed by DEM in Superior Court. At every
step, the owners and operators were adversaries to the DEM. That is not the case in the
proposed representation.
In the proposed matter, the prospective buyer comes to the DEM aligned with the
DEM, as well as with state law, in the critical objective of brownfield laws, that is, the
clean-up of contamination on identified properties, and the reuse and redevelopment of
those properties, all in furtherance of the best interest of the state's economy and the state's
environment. G.L. 23-19.14-1 and 2. Reuse and redevelopment of these properties are
encouraged.
In the proposed matter, the inquiring attorney will negotiate the purchase of the
property with the new owner on behalf of the buyer, and will represent the buyer at the
closing. The inquiring attorney will negotiate with DEM on behalf of the buyer and will
secure the necessary agreements with the DEM regarding further remediation and
redevelopment on the property. The clean-up requirements for the new buyer to be
negotiated with the DEM will depend on the buyer's proposed reuse of the property. Some
projects require more clean up than others. Additional facts pertinent to the proposed
matter which differ from the former matter include the current environmental conditions of
the property; actions needed to manage, monitor or remediate the current conditions;
entities or persons who will bear the responsibility for those future actions; limitations on
the prospective buyer's future use of the property due to the contamination.
Except that the buyer will purchase the same property that was the subject of the
former DEM matter, there are more differences than sameness in the two matters. Based
on the totality of the facts, and in light of the references in Rule 1.11, in the comments, and
in ABA Formal Ethics Op. 342, to "particular matter involving specific parties," and
"discrete, identifiable transaction or conduct involving a particular situation and specific
Final Op. 2010-08
Page 5
parties," and "the same basic facts, the same or related parties," the Panel concludes that
the former matter and the proposed matter are not the same.
The inquiring attorney has stated that he/she does not have confidential information
that would be relevant to the proposed representation. When DEM identifies a
contaminated property, the process is open to the public. Site investigation data is a matter
of public record. Even if the inquiring attorney were to have confidential information,
Rule 1.11(a)(1) makes him/her subject to Rule 1.9(c) which prohibits disclosure of
confidential information. General "playbook" concerns cannot be the basis of a
determination of conflict of interest.
Rule 1.11 is more and less restrictive than Rule 1.9. It is more restrictive in that a
former government lawyer has a conflict of interest under Rule 1.11 whether or not he or
she participated on a matter as a lawyer. He or she is disqualified if as a former
government employee, he or she participated personally and substantially in the same
matter in a non-lawyer capacity. The conflict of interest arises whether or not there was a
previous legal representation while in government.
At the same time, Rule 1.11 is less restrictive than Rule 1.9 in that the lawyer is
disqualified only if the former matter and the subsequent matter are the same. This is
unlike Rule 1.9 which prohibits a subsequent representation in the same matter or a
substantially related matter in which the interests of the proposed client are materially
adverse to the interests of the former client.
Rule 1.11 represents a balancing of interests of the government and of the former
government lawyer. In the Panel's view, Rule 1.11 is more restrictive in favor of the
government on the issue of participation, and it is less restrictive in favor of the former
government lawyer on the issue of "matter." The Panel notes that only paragraph (c) of
Rule 1.9 applies to the former government lawyer.
The Panel concludes that the prior DEM matter and the proposed representation are
not the same matter. Accordingly, it is not a conflict of interest under Rule 1.11 for the
inquiring attorney, a former DEM lawyer who participated in the DEM's investigation of
and enforcement and legal proceedings against the parties who owned and the parties who
operated a gasoline station on certain contaminated land, to now represent a prospective
buyer of the same property.
Get today's answer for your situation
You just read a 2010 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.