Can a former assistant city attorney who once investigated an employee's discrimination complaint later represent that employee in a retaliation claim against the city?

Plain-English summary

While employed as an Assistant City Attorney, the requesting lawyer was asked to speak with an employee's supervisor to determine whether there was any basis to the employee's informal sexual-discrimination complaint; he concluded the supervisor had acted in good faith and had no further involvement. Nine months after leaving the city, the same employee asked him to represent her in a retaliation claim against the Albuquerque Police Department, alleging retaliation for having complained of discrimination, not the merits of the discrimination claim. He represented her after obtaining what he understood to be the police chief's consent. The city later asserted a conflict of interest, contending its consent had been limited and informal. He asked whether his former city employment disqualified him, and whether the city had waived its right to assert a conflict.

On the first question, the opinion applied the substantially-related test of Model Rule 1.11(a), which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public employee, absent the agency's consent, and noted the Tenth Circuit's Smith v. Whatcott definition of substantiality. It concluded the two retaliation causes of action did not appear to create a conflict under that test, because the merits of the discrimination complaint were not in issue; the retaliation claims focused on whether punitive action was taken for having complained, a factual context neither similar nor related to the discrimination investigation. It also reasoned that Rule 1.11's objective, preventing a lawyer from exploiting public office for a private client's advantage by using specific information, would not be served by disqualification, since the lawyer learned of the claim nine months after leaving and was unlikely to have specific useful information.

The opinion qualified this with caveats. It accepted the representation that the retaliation charge was factually and legally independent, but noted the second retaliation charge checked the "sex" box in addition to "retaliation" and alleged layoff "because of my sex... and in retaliation," which raised concern that the charges might be substantially related if a discriminatory course of conduct became an issue. It also flagged that it lacked information on the content of the supervisor communication and on the lawyer's access to specific confidential information, and reminded him that a lawyer may not use confidential information to a client's disadvantage even after the relationship ends (ABA Informal Opinion 1322). It advised that, if there were doubts about or a reasonable appearance of a substantial relationship or access to relevant confidential information, the prudent course was to resolve those concerns in favor of disqualification. On the second question, whether the city consented and could withdraw consent, the opinion found the dispute required a factual determination appropriately made by a court and declined to answer, noting conflicting authority (Trust Corp. of Montana v. Piper Aircraft and ABA Informal Opinion 1125).

Currency note

This opinion was issued in 1986, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). At the time, the opinion applied the then-unadopted Model Rule 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former government lawyer take a case against the former government employer?

A: The opinion concluded he was not disqualified where the new matter did not meet the substantially-related test of Model Rule 1.11, here because the retaliation claims focused on conduct after, and factually unrelated to, the discrimination he had investigated.

Q: What is the substantially-related test the opinion applied?

A: Drawing on Smith v. Whatcott, the opinion treated substantiality as existing if the factual contexts of the two representations are similar or related, and concluded the discrimination investigation and the retaliation claims were neither.

Q: What caveats did the opinion attach?

A: It cautioned that the second charge alleged both sex discrimination and retaliation, which could make the matters substantially related if a course of conduct became an issue, and that any access to specific confidential information could change the result; doubts should be resolved in favor of disqualification.

Q: Did the Committee decide whether the city waived its objection?

A: No. The opinion concluded the consent dispute required a factual determination appropriately made by a court and declined to take a position, noting conflicting authority on waiver.

Background and rules framework

The opinion analyzed the successive-employment conflict under Model Rule 1.11(a) (a lawyer's personal and substantial participation as a public employee, and the substantially-related test), referencing the lawyer's continuing duty not to use a former client's confidential information to its disadvantage (ABA Informal Opinion 1322). The Model Rules had not yet been adopted in New Mexico.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11(a) (successive government and private employment; substantially-related test)

Cases:

• Smith v. Whatcott, 757 F.2d 1098 (10th Cir. 1985), definition of substantiality
• Brown v. District of Columbia Board of Zoning Adjustment, No. 13670 (D.C. Ct. App. 1984), use of specific information
• Trust Corp. of Montana v. Piper Aircraft Corp., 801 F.2d 85 (9th Cir. 1986), waiver of a conflict objection

Other opinions cited:

• ABA Informal Opinion 1322 (1975): no use of confidential information after the relationship ends
• ABA Informal Opinion 1125 (1969): lawyer should withdraw after consent withdrawn

See also

• NM Ethics Op. 1986-3: Lawyer Switching Firms and Screening
• NM Ethics Op. 1985-8: Divorce Representation Conflict

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1986/1986-1.pdf

Original opinion text

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

Advisory Opinion 1986-1
FACTS: The attorney requesting this opinion was employed by the City of Albuquerque as an Assistant City Attorney until June 12, 1984. On May 8, 1984, an employee of the Albuquerque Police Department made an informal complaint to Chief E.L. Hansen alleging sexual discrimination by her supervisor. The attorney requesting this opinion was asked to speak to the employee's supervisor to determine if there was any basis to the claim. He did so, concluding that the supervisor had acted in good faith. He had no further involvement with this complaint, and does not know what disposition was made of it.
Nine months after leaving the City Attorney's Office on June 12, 1984, he was approached by the individual complaining of the sexual harassment who requested representation by the attorney in a retaliation claim she was filing against the Albuquerque Police Department. This involves alleged retaliation for having complained of sexual discrimination, but does not involve the merits of the discrimination claim.
The attorney advised that he would only represent the individual if Chief Hansen would consent. Consent was apparently given in a meeting between the attorney and Chief Hansen on March 7, 1985. A letter of March 11, 1985, from the attorney to Chief Hansen records the substance of the agreement. The attorney subsequently filed an Entry of Appearance with the Equal Employment Opportunity Commission on behalf of the employee. Shortly thereafter, the employee was notified that her position with the Albuquerque Police Department would be terminated. She then filed a separate retaliation claim with the EEOC, which also asserts a sexual discrimination claim.
The attorney proceeded with representation of the client. This involved contacts with city personnel, including Chief Hansen, with respect to finding other employment for the client, and an offer of settlement of the pending actions for a cash settlement on which no action was taken. On September 11, 1985, the EEOC investigator held a fact finding conference at which an Assistant City Attorney indicated that the City would be asserting a conflict of interest. A letter to that effect was received by the attorney on October 3, 1985. It is the City's position that permission to represent the employee was given the attorney on a limited and informal basis. The request for this opinion followed. The requesting attorney requires a response by January 1, 1986.
ADVISORY OPINION REQUESTED:
1. Is the attorney requesting this opinion disqualified from representing the employee as a result of his former employment as a City Attorney?
2. Has the City waived its right to assert a conflict of interest?
CONCLUSION:
1. The two cases do not appear to meet the "substantially related" test. Consequently, the attorney is not disqualified subject to certain caveats.
2. The Committee declines to take a position on the second question.
DISCUSSION:
Question 1: The first question raises the issue of the extent of the attorney's involvement with this matter during his association with the City. The Model Rules of Professional Conduct and Code of Judicial Conduct address this issue in Rule 1.11 which applies the "substantially related" test to matters affecting attorneys in successive government and private employment. Under this test:
"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 personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." Rule 1.11(a).
Substantiality has been defined by the Tenth Circuit as existing "if the factual contexts of the two representations are similar or related." Smith v. Whatcott, 757 F.2d 1098 (10th Cir. 1985).
The facts presented for this opinion do not appear to create a case for conflict of interest under the "substantially related" test. The two causes of action in which the attorney has been asked to represent the employee are for retaliation for her original complaint of sexual discrimination. While the attorney investigated the merits of that claim, the merits of that complaint supposedly are not in issue in either of the two proceedings for which he has been retained. Instead, the retaliation claims will focus on the issue of whether punitive action was taken against the employee for having made a complaint, rather than an alleged incident of sexual discrimination. While it is true that the discrimination complaint gave rise to the retaliation claims, the two factual contexts themselves are neither "similar nor related." The issues before the court will presumably focus on personnel issues occurring subsequent to the complaint, specifically, on action taken by the Police Department toward an employee who has complained of ill treatment.
Moreover, the objective of Rule 1.11 would not be served by requiring the attorney to withdraw from this case. The commentary to the Rule explains that it is designed to prevent attorneys from "exploiting public office for the advantage of a private client." This has been construed to apply to the usage of "specific information (as distinct from general agency expertise or contacts) that a former government lawyer may have had access to in one matter (and that are) likely to be useful in a subsequent matter." Brown v. District of Columbia Board of Zoning Adjustment, No. 13670 (D.C. Ct. App. 12/21/84). The retaliation issues in this case purportedly occurred subsequent to the alleged incident of sexual harassment. The attorney became aware of the claim nine months after leaving the City's employ. He is unlikely to have had "specific information" that would prove useful in the retaliation actions.
The foregoing analysis is subject to certain caveats. It essentially accepts the representation that the retaliation charge is factually and legally independent of the previous discrimination charge. The Committee notes, however, that the second retaliation charge contains two indications that the retaliation charge and the discrimination charge may be "substantially related" so as to preclude the attorney's continued representation of the client.
First, in the space provided on the form for designating the basis of the claimed discrimination, the box marked "sex" is checked in addition to the box marked "retaliation." Second, the Discrimination Statement reads, at paragraph III, "I believe that I am being discriminatorily laid off because of my sex, female, and in retaliation ..." (emphasis added). The identification of the issue in this manner raises concerns among some committee members about the independence of the issues. It appears that evidence tending to establish a discriminatory course of conduct by the City might be an issue in the retaliation case as it is framed in this charge. In such a context, the overlap between the original discrimination charge and the current retaliation charges would make them substantially related.
A further concern is the substance of confidential information gained by the attorney while an Assistant City Attorney and its relevance to the present claims. The Committee has no information on the content of the communication between the client's prior supervisor and the attorney when the attorney was still employed by the City and investigating the discrimination charge. The Committee likewise has inadequate information on the access that the attorney may have had to specific confidential information which will benefit his client in the retaliation claims and work to the disadvantage of the City. It is certainly possible that the attorney, during his previous employment, gained knowledge of confidential information that would cause disadvantage to the City, especially if the scope of the retaliation case includes a course of conduct component. An attorney may not use confidential information to a client's disadvantage even after termination of an attorney-client relationship. ABA Informal Opinion 1322 (1975).
The Committee advises the attorney to give thought to the nature of the case he plans to file and to the relationship between any information he gained in the discrimination investigation and the substantive aspects of the retaliation claims. The attorney is reminded that if there are doubts about, or a reasonable appearance of, a substantial relationship between the claims or access to relevant and specific confidential information, the prudent course is to resolve those concerns in favor of disqualification.
Question 2: The second question presents two issues. First, did the City consent to the representation? If the answer is yes, may the City withdraw its consent?
The City apparently contends that any consent given was limited to an informal resolution. The requesting attorney maintains that there was no such limitation. This question requires a factual determination which the Committee believes is appropriately made by a court.
The Committee declines to answer the second issue and believes it too is appropriately made by a court. The Committee has found conflicting results. "[I]t is well settled that a former client who is entitled to object to an attorney representing an opposing party on the ground of conflict of interest, but who knowingly refrains from asserting it properly, is deemed to have waived that right." Trust Corp. of Montana v. Piper Aircraft Corp., 801 F.2d 85 (9th Cir. 1983).
An opposite result was reached in ABA Informal Opinion 1125 (1969). There a wife gave permission to an attorney to represent the husband in a divorce action although the attorney had represented her three years earlier which resulted in a reconciliation with the husband. The wife some time thereafter withdrew her consent. Although the opinion noted the inherent unfairness of the wife's reversal, the conclusion, nevertheless, was that the lawyer should withdraw from representation of the husband.