If I serve on a city council, can I discuss and vote on a matter involving a client of my former law firm when I never worked on that client's matter?

Plain-English summary

An associate at a large law firm was elected to the city council in the city where he practices and later resigned from the firm. A client of his former firm is negotiating with the city over a pending real estate development that may come before the council. While at the firm, the lawyer did no work on that client's matter and received no confidential information about it.

The Committee analyzes Rule 1.10(e), which limits lawyers who serve as public officers and applies to city council members. Rule 1.10(e)(1) generally bars a lawyer-public officer from participating in a matter involving a private client whom the lawyer represented in the same matter while in private practice. Because this lawyer never personally represented the client in the matter, the Committee concludes Rule 1.10(e)(1) does not bar him from acting; the rule does not impose limits based merely on the former firm's representation when the lawyer himself was not personally involved.

The Committee identifies one additional limit. If the lawyer had acquired confidential information (privileged or unprivileged client information within Rule 1.05) about the matter while at the firm, Rule 1.05(b)(3) would bar him from using that information as a councilmember to the disadvantage of the former firm's client, even though he never represented that client. On the stated facts, where the lawyer did no work and received no confidential information, he may participate and vote.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer on a city council may discuss and vote on a matter in which his former law firm represents a client, subject to two conditions the opinion identifies: the lawyer did not personally represent that client in the same matter, and the lawyer can act without using the former client's confidential information to that client's detriment. The opinion holds that representation by the former firm alone, without the lawyer's personal involvement, does not trigger Rule 1.10(e)(1).

Common questions

Q: I'm on a city council and a former firm client has business before us. Can I vote?

A: Per Opinion 544, yes, if you never personally represented that client in the matter and you can act without using confidential information about the client to its disadvantage. The Committee holds Rule 1.10(e)(1) does not bar participation based solely on the former firm's representation.

Q: Does my old firm's representation of the client disqualify me as a public officer?

A: No. The Committee concludes Rule 1.10(e)(1) imposes limits only where the lawyer personally represented the client in the same matter; the firm's representation, without the lawyer's personal involvement, does not place limits on the lawyer's public service.

Q: What if I learned confidential information about the client while at the firm?

A: The Committee says that triggers a separate limit. Under Rule 1.05(b)(3), the lawyer could not use confidential information acquired at the firm, as a councilmember, to the disadvantage of the former firm's client, even if he never represented that client.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.10(e) (limitations on lawyers serving as public officers or employees, corresponding to ABA Model Rule 1.11) and Rule 1.05 (confidentiality, related to ABA Model Rule 1.9(c)). The analysis turns on whether the lawyer personally represented the client in the same matter and whether he holds confidential information that Rule 1.05(b)(3) would bar him from using against the former firm's client.

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)
• Texas Disciplinary Rules 1.10(e)(1), 1.05(b)(3)

See also

• TX Ethics Op. 551: Former City Lawyer and a Two-Year Bar on Practice Before the City
• TX Ethics Op. 554: State Legislator Representing Clients in District Courts
• TX Ethics Op. 574: Former Agency Lawyer Representing a Client Before the Agency

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-544/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_544.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer who serves as a member of a city council participate in discussions and vote as a member of the city council on a matter involving a client of the lawyer’s former law firm where the lawyer had performed no work on the matter for such client and had received no confidential information relating to such client while the lawyer was employed by the former law firm?

STATEMENT OF FACTS

A lawyer who was employed as an associate with a large law firm was elected to serve as a member of the city council in the city where the lawyer has been practicing law. After serving for a period on the city council, the lawyer chose to resign his employment with the law firm.

A client of the lawyer’s former law firm is negotiating with the city concerning a pending real estate development. While the lawyer was employed by the law firm, the lawyer did no work relating to the client’s matter that is before the city council; in addition, the lawyer received no confidential information relating to the matter.

DISCUSSION

Rule 1.10(e) of the Texas Disciplinary Rules of Professional Conduct sets forth limitations applicable to lawyers who serve as public officers. This rule applies to lawyers serving as members of a city council. Rule 1.10(e)(1) generally (unless applicable law specifically provides to the contrary) prohibits a lawyer from serving as a public officer with respect to a matter involving a client when the lawyer has represented the client in the same matter. Rule 1.10(e)(1) provides as follows:
“Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) Participate in a matter involving a private client when the lawyer had represented that client in the same matter while in private practice or non-governmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter[.]”
Under this provision, the lawyer in question is not prohibited from acting on the matter involving a client of the lawyer’s former law firm unless the lawyer had personally represented the client in the same matter. Rule 1.10(e)(1) does not operate to place limitations on a lawyer’s public service because of representation by the lawyer’s former law firm on a matter that did not personally involve the lawyer in question.

An additional limitation may apply to the lawyer in the event that the city council considers a matter as to which the lawyer had acquired confidential information, which includes both privileged information and unprivileged client information within the scope of Rule 1.05, while the lawyer was employed by the law firm. In that case, even though the lawyer had not represented the law firm’s client with respect to the matter, the lawyer would be prohibited by Rule 1.05(b)(3) from using such confidential information as a member of the city council to the disadvantage of the former law firm’s client.

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who serves on a city council may participate in discussion and vote as a member of the city council on a matter with respect to which the lawyer’s former law firm is representing a client, provided that the lawyer did not personally represent the client with respect to the matter while the lawyer was employed by the law firm and provided that the lawyer can act on the matter without using confidential information concerning the former law firm’s client to the detriment of such client.

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer who serves on a city council may participate in discussion and vote as a member of the city council on a matter with respect to which the lawyer’s former law firm is representing a client, provided that the lawyer did not personally represent the client with respect to the matter while the lawyer was employed by the law firm and provided that the lawyer can act on the matter without using confidential information concerning the former law firm’s client to the detriment of such client.

Tex. Comm. On Professional Ethics, Op. 544 (2002)