I recently left a job as an assistant city solicitor for private practice. Can I now represent private clients before the same city boards, agencies, and courts where I appeared for the city?

Plain-English summary

The inquiring attorney recently returned to private practice after serving as an assistant city solicitor, where he or she prosecuted license violations before the board of licenses, handled appeals, tax-appeal litigation, and personal injury cases, and served as lead prosecutor before the city's housing court, while also attending meetings of the city's zoning board and other bodies. The attorney asked, through several hypotheticals, whether he or she may now represent private clients before the city boards, agencies, and courts where he or she previously appeared for the city.

Because the inquiry lacked specific facts, the panel gave general guidance. It held that Rule 1.11, governing special conflicts for former and current government officers and employees, applies. Under Rule 1.11(a), the attorney may not represent a private client in a matter in which he or she participated personally and substantially as an assistant city solicitor. The panel stressed that "matter" is defined broadly and includes not only cases the attorney litigated for the city but also matters on which he or she advised the city's boards, commissions, and other public bodies. A Rule 1.11(a) disqualification can be waived by the city's informed written consent.

The panel then addressed imputation and confidential information. Under Rule 1.11(b), if the attorney is disqualified, the disqualification is imputed to the firm unless the attorney is screened from the matter, derives no fee from it, and written notice is given to the city. Under Rule 1.11(c), if the attorney possesses information he or she knows to be confidential government information about a person, acquired as an assistant city solicitor, he or she may not represent a private client adverse to that person where the information could be used to that person's material disadvantage. The panel noted that a Rule 1.11(c) conflict, unlike a Rule 1.11(a) conflict, cannot be waived, though screening is permitted.

Finally, the panel observed that Rule 1.11 no longer contains the former "revolving-door" provision barring a former government lawyer from appearing before the same office for one year, and it directed the attorney to consult other law, such as the State's Code of Ethics, for any similar limitations. The panel expressly limited its guidance to the Rules of Professional Conduct.

In practice

Under this opinion, and under the Rhode Island rule as it stood at the time, a former assistant city solicitor entering private practice is not categorically barred from appearing before the same city bodies. The panel held the analysis runs through Rule 1.11: the lawyer is disqualified only from specific matters in which he or she participated personally and substantially for the city, subject to the city's written consent; the firm may avoid imputed disqualification through timely screening, fee apportionment, and written notice to the city; and a non-waivable Rule 1.11(c) bar applies where the lawyer holds confidential government information usable to a person's material disadvantage. The panel noted the current rule contains no one-year revolving-door bar and pointed the lawyer to the State Ethics Code for any separate limits it does not interpret.

Common questions

Q: Can a former city solicitor appear before the same city boards in private practice?

A: The panel said Rule 1.11 does not impose a blanket bar. The lawyer is disqualified only from specific matters in which he or she participated personally and substantially for the city, unless the city gives informed written consent.

Q: What counts as a "matter" I participated in for the city?

A: The panel read "matter" broadly to include not only cases the lawyer litigated for the city but also matters on which he or she gave legal advice to the city's boards, commissions, and other public bodies.

Q: If I am disqualified, is my whole firm disqualified too?

A: Under Rule 1.11(b), the disqualification is imputed to the firm unless the lawyer is timely screened from the matter, apportioned no part of the fee, and written notice is given to the city.

Q: Is there still a one-year bar on appearing before my former office?

A: The panel said no; Rule 1.11 no longer contains the former revolving-door provision, but it directed the lawyer to consult other law, such as the State's Code of Ethics, for any similar limitation.

Background and rules framework

The opinion applies Rule 1.11 (Model Rule 1.11, special conflicts of interest for former and current government officers and employees), which incorporates Rule 1.9(c) (Model Rule 1.9, duties to former clients) for former government lawyers. Rule 1.11(a) bars representation in matters the lawyer handled personally and substantially in government absent the agency's informed written consent; Rule 1.11(b) governs imputation and its cure by screening, fee apportionment, and notice; Rule 1.11(c) bars adverse use of confidential government information; and Rule 1.11(e) defines "matter" broadly. The panel expressly declined to interpret the State Ethics Code or other law.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.9 (duties to former clients; incorporated via Rule 1.11(a)(1))
• RI RPC 1.11, 1.9

Statutes:

• None quoted (the opinion refers generally to the State's Code of Ethics without citing a provision).

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2024-09: Firm as Municipal Prosecutor and Private Clients Before Boards
• RI EAP Op. 2024-10: Town Solicitor May Advise an Adverse Councilor to Get Separate Counsel
• RI EAP Op. 2025-02: Representing a Client Before a Board Where a Screened Partner Is a Member

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%2016-02.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-02
Issued April 28, 2016

FACTS

The inquiring attorney recently returned to private law practice in the real estate and commercial litigation department of a law firm. Before joining the law firm, he/she was an assistant city solicitor. As an assistant solicitor, the inquiring attorney prosecuted liquor, entertainment, and other license violations on behalf of the city before the board of licenses. He/she represented the city in appeals from the board's decisions. The inquiring attorney also represented the city in tax appeal litigation, personal injury cases, and as lead prosecutor before the city's housing court regarding violations of the city's various codes and zoning ordinances. While the foregoing represented the majority of the inquiring attorney's assignments, from time to time, he/she attended meetings of the city's zoning board of review and other boards and committees. The inquiring attorney has presented various hypothetical scenarios for the Panel's consideration.

ISSUE PRESENTED

The inquiring attorney, a former assistant city solicitor, asks whether he/she may now represent private clients before the city's various boards, agencies, and courts, before which he appeared on behalf of the city.

OPINION

When deciding the propriety of client representation in matters relating to the city and in matters to be litigated before the city's boards, commissions, or courts, the inquiring attorney and lawyers in his/her law firm are subject to Rule 1.11(a), (b), (c) and (e).

REASONING

The inquiry lacks specific facts. Therefore the Panel is limited to providing general guidance in response to this inquiry. The inquiring attorney is a former government employee. Therefore, Rule 1.11 entitled "Special conflicts of interest for former and current government officers and employees," applies.

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

(b) When a lawyer is disqualified from representation under paragraph (a), 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 timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

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

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(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.

Pursuant to Rule 1.11(a), the inquiring attorney may not represent a private client in a matter in which he/she participated personally and substantially while he/she was an assistant city solicitor. "Matter" is defined broadly, and includes not only cases which the inquiring attorney litigated on behalf of the city, but also matters for which he/she provided legal advice to the city's boards, commissions, and other public bodies. A disqualification under Rule 1.11(a) can be waived by the city if the city gives its informed consent, confirmed in writing.

If the inquiring attorney is disqualified from representing a private client under Rule 1.11(a), the disqualification is imputed to other lawyers in the law firm unless the inquiring attorney is screened from participating in the client's matter, derives no fee from the matter, and written notice of the representation is given to the city.

Further, if the inquiring attorney has information known to him/her to be confidential government information which was acquired about a person when he/she was an assistant city solicitor, Rule 1.11(c) prohibits him/her from representing a private client whose interests are adverse to that person where the information could be used to that person's material disadvantage. Unlike a conflict that arises from participation in a matter under Rule 1.11(a), a conflict that results from the possession of confidential government information cannot be waived. Screening is permitted.

Rule 1.11 no longer contains the revolving-door provision of the former rule, which prohibited a lawyer who was formerly employed by a government office or agency from representing a private client before that government office or agency for one year after termination of such employment. The inquiring attorney is advised, however, to consult other law, such as the State's Code of Ethics, for similar limitations.

The Panel concludes that when deciding the propriety of client representation in matters relating to the city, and in matters to be litigated before the city's boards, commissions, or courts, the inquiring attorney and lawyers in his/her law firm are subject to Rule 1.11(a), (b), (c) and (e). 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.