While I worked for the Attorney General I told an assault victim that the police weren't prosecuting and that he could privately prosecute. Now in private practice, can I represent that victim in a suit against the perpetrator?

Plain-English summary

The inquiring attorney was a former lawyer for the Department of the Attorney General, now in private practice. While employed by the Attorney General, an individual told him he was the victim of an assault; the attorney advised the individual that prosecution was within the discretion of the local and state police and referred him to those agencies. When the police declined to bring criminal proceedings, the attorney advised the individual he had the option of privately prosecuting the alleged perpetrator. The individual then engaged another attorney who instituted proceedings but was later discharged, and the individual asked the inquiring attorney to represent him in the case. The attorney asked whether the Rules permitted the representation given his earlier conversations while at the Attorney General.

The panel concluded that Rule 1.11(a) did not prohibit the representation. Rule 1.11(a) disqualifies a former government lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public employee, and Rule 1.11(e) defines "matter" to include specific proceedings, investigations, charges, and the like involving specific parties. The panel concluded that the attorney's conversations with the victim did not constitute substantial participation in a matter that would disqualify him. The alleged incident was never the subject of a criminal investigation or prosecution by the Department of the Attorney General; having determined that neither the Attorney General nor the police were pursuing prosecution, the attorney simply advised the victim of his remaining options, including private prosecution. That, the panel concluded, was a reasonable adjunct to his government position but not participation in a matter sufficient to disqualify him under Rule 1.11(a) from now representing the victim.

Currency note

This opinion was issued in April 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.11 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and Rhode Island's Rule 1.11 may no longer read as it did here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does every contact a government lawyer has with someone disqualify the lawyer later?

A: No. The opinion concluded Rule 1.11(a) disqualifies a former government lawyer only where the lawyer participated personally and substantially in a "matter," and merely advising the victim of his options did not meet that threshold.

Q: Why was advising the victim not "participation in a matter"?

A: The opinion emphasized that the alleged incident was never investigated or prosecuted by the Attorney General. Directing the victim to alternatives after the government declined to prosecute was a reasonable adjunct to the lawyer's position, not substantial participation.

Q: Could the former AG lawyer take the case now?

A: Yes. The opinion concluded the representation was permitted under the Rules, while limiting its guidance to the Rules of Professional Conduct and not the State Ethics Code or other law.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.11 (Model Rule 1.11) as originally adopted. Rule 1.11(a) bars a former government lawyer from representing a private client in a matter in which the lawyer participated as a public officer or employee. Rule 1.11(e) defines "matter" to include any judicial or other proceeding, application, request for a ruling, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving specific parties, plus any matter covered by the agency's own conflict rules. The panel read the personal-and-substantial-participation requirement as not met by the lawyer's advisory conversations.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / RI RPC 1.11(a), 1.11(e) (successive government and private employment; definition of "matter")

Other opinions cited:

• Fla. Bar Prof. Ethics Comm. Op. 72-41 (1993): cited on substantial participation
• Nassau County Bar Assn. Comm. on Prof. Ethics Op. 93-35 (1993): cited on the same point
• RI EAP Op. 96-32 (1996): cited on the same point

See also

• RI EAP Op. 99-04: Former prosecutor barred from a parole hearing
• RI EAP Op. 99-13: Agency lawyer adverse to a city

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%2098-09.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. 98-09 Request No. 745
Issued April 9, 1998

Facts:

The inquiring attorney is a former lawyer for the Department of the Attorney General and is now in private law practice. While the lawyer was employed by the Attorney General, an individual informed him/her that the individual was a victim of an assault. The inquiring attorney advised the individual that prosecution of the crime was within the discretion of the local and state police departments, and referred him/her to those agencies. When the individual subsequently informed the inquiring attorney that the police departments had elected not to institute criminal proceedings in the case, the inquiring attorney advised the individual that he/she had the option of privately prosecuting the case against the alleged perpetrator. Thereafter, the individual engaged an attorney who instituted proceedings against the alleged perpetrator, but has since discharged that attorney. The individual has asked the inquiring attorney to represent him/her in the case. Issue Presented:

The inquiring attorney asks whether the Rules of Professional Conduct permit him/her to represent the individual in the case after having had conversations with him/her during his/her employment at the Department of the Attorney General. Opinion:

Rule 1.11(a) does not prohibit the inquiring attorney from representing the individual in a private lawsuit against the perpetrator, as his/her earlier conversations with the individual did not constitute substantial participation in a matter as a public employee.

Reasoning:

Rule 1.11(a) entitled "Successive Government and Private Employment" states in pertinent part:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee. . . .

Paragraph (e) of the Rule 1.11 defines the term "matter" to include:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, Final EAP 98-09
Page 2

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.

Under Rule 1.11(a), a former government lawyer is disqualified from representing a private client in a matter in which the lawyer participated personally and substantially as a public employee. See Fla. Bar Prof. Ethics Comm. Op. 72-41 (1993); Nassau County Bar Assoc. comm. on Prof. Ethics Op. 93-35 (1993); R. I. Sup. Ct. Ethics Advisory Panel Op. 96-32 (1996). The Panel is of the opinion that in the instant inquiry, the inquiring attorney's conversations with the victim while he/she was a government lawyer do not constitute substantial participation in a matter which would disqualify him/her from the private representation of the victim against the perpetrator. The alleged incident was not the subject of a criminal investigation or prosecution by the Department of the Attorney General. Having determined that neither the Attorney General nor the police departments were pursuing criminal prosecution of the alleged assailant, the inquiring attorney advised the victim of his/her remaining options, including private prosecution of the perpetrator. Directing an individual to alternatives to governmental criminal prosecution under these facts was a reasonable adjunct to the inquiring attorney's position, but did not constitute participation in a matter sufficient to disqualify him/her under Rule 1.11(a) from now representing the victim in a lawsuit against the perpetrator.

The Panel concludes that the representation is permitted under the Rules of Professional Conduct. The Panel's guidance is restricted to interpretations of the Rules 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.