If I worked as a lawyer for a city, can the city's ethics code bar me from representing others before the city for two years, even on unrelated matters?

Plain-English summary

A Texas city's ethics code applies to all city employees. It imposes continuing confidentiality and generally bars representing non-family members against the city in matters the employee participated in, and it includes a two-year prohibition barring a former official or employee from representing anyone (other than himself and certain family) before the city for compensation, on any matter, for two years. The city employs lawyers as full-time employees. After Lawyer A left the city, within two years he proposed to represent an unrelated client before the city on matters wholly unrelated to his city work; Lawyer B, a current city lawyer, sought to enforce the two-year prohibition against him.

The Committee analyzes Rule 1.10, which governs successive government and private employment and (in Rule 1.10(a)) bars a lawyer from representing a client in a matter the lawyer participated in personally and substantially as a public officer or employee, absent the agency's consent. It concludes Rule 1.10 contains no requirement comparable to or in conflict with the city's two-year prohibition, so complying with or enforcing the city rule would not violate Rule 1.10.

The Committee then analyzes Rule 5.06, which bars a lawyer from offering or making a partnership or employment agreement that restricts the right to practice after the relationship ends (with a retirement-benefits exception) or such a restriction as part of a suit settlement. It concludes the two-year prohibition does not violate Rule 5.06, because it is not part of a partnership or employment agreement but a set of rules applicable to all city employees; being subject to the city's ethics code does not make that code part of the lawyer's employment agreement for Rule 5.06 purposes.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a former city-employed lawyer may be required to comply with a city ethics code's two-year bar on representing others before the city for compensation. The Committee holds Rule 1.10 has no conflicting requirement, and that Rule 5.06's bar on practice restrictions does not apply because the prohibition is a general personnel rule rather than a partnership or employment agreement.

Common questions

Q: I was a city lawyer. Can the city's ethics code stop me from appearing before the city for two years, even on unrelated matters?

A: Per Opinion 551, yes. The Committee concludes the Disciplinary Rules do not prohibit enforcing a city ethics code's two-year bar on a former city lawyer representing others before the city for compensation.

Q: Doesn't Rule 1.10 control what a former government lawyer can do?

A: The Committee says Rule 1.10 bars representing a client in a matter you handled personally and substantially for the government, but it contains no requirement comparable to or in conflict with the city's broader two-year bar, so the city rule does not violate Rule 1.10.

Q: Isn't a two-year practice restriction barred by Rule 5.06?

A: The Committee concludes Rule 5.06 does not apply, because the two-year prohibition is part of an ethics code applicable to all city employees, not a partnership or employment agreement; being subject to that code does not make it part of the lawyer's employment agreement.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.10 (successive government and private employment, corresponding to ABA Model Rule 1.11), including Rule 1.10(a), and Rule 5.06 (restrictions on right to practice, ABA Model Rule 5.6). The analysis turns on whether a city ethics code's two-year bar conflicts with Rule 1.10 and whether that code is a "partnership or employment agreement" for Rule 5.06 purposes.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 5.6 (restrictions on right to practice)
• Texas Disciplinary Rule 1.10(a), Rule 5.06(a) and (b)

See also

• TX Ethics Op. 574: Former Agency Lawyer Representing a Client Before the Agency
• TX Ethics Op. 590: Restrictions on a Departing Lawyer's Right to Practice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-551/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_551.pdf

Original opinion text

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

QUESTION PRESENTED

Is it permissible under the Texas Disciplinary Rules of Professional Conduct to require a lawyer who was employed as a lawyer by a city to comply with a provision of the city’s Ethics Code that prohibits all former city employees from representing unrelated persons before the city for compensation for a period of two years after termination of employment with the city?

STATEMENT OF FACTS

A city in Texas (the “City”) has an ethics code (the “Ethics Code”) that is intended to apply to all City employees. The Ethics Code includes provisions imposing a duty of continuing confidentiality and generally prohibiting representation at any time of non-family members against the City in matters as to which the employee participated while a City employee. The Ethics Code also includes a provision (the “Two-Year Prohibition”) that prohibits a former City official or employee from representing for compensation any person, group, or entity, other than himself and certain members of the employee’s family, before the City with respect to any matter for a period of two years. The City has employed and continues to employ lawyers as full-time employees of the City.

Lawyer A had been employed as a lawyer by the City. Within two years after Lawyer A left employment with the City, Lawyer A proposed to represent an unrelated client before the City with respect to legal matters that were wholly unrelated to matters that Lawyer A had handled for the City. Lawyer B, who is currently employed by the City as a lawyer, sought to enforce the Two-Year Prohibition to prevent Lawyer A from representing his client before the City.

DISCUSSION

Rule 1.10 of the Texas Disciplinary Rules of Professional Conduct specifically deals with successive government and private employment of lawyers. Rule 1.10(a) prohibits a lawyer from representing 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 consents after consultation. However, Rule 1.10 does not include a requirement comparable to or in conflict with the Two-Year Prohibition of the City’s Ethics Code. Therefore, compliance with or enforcement of the Two-Year Prohibition would not violate Rule 1.10.

Rule 5.06 of the Texas Disciplinary Rules of Professional Conduct prohibits certain agreements relating to a lawyer’s employment that would restrict the lawyer’s right to practice law:

Rule 5.06 Restrictions on Right to Practice A lawyer shall not participate in offering or making:

(a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a suit or controversy, except that as part of the settlement of a disciplinary proceeding against a lawyer an agreement may be made placing restrictions on the right of that lawyer to practice.

Application of the Two-Year Prohibition of the City’s Ethics Code does not violate Rule 5.06 because the Two-Year Prohibition is not part of a partnership or employment agreement but is, instead, part of a set of rules applicable to all employees of the City. The fact that a lawyer employed by the City is subject to the City’s Ethics Code does not make the City’s Ethics Code a part of the lawyer’s employment agreement for purposes of applying the requirements of Rule 5.06.

CONCLUSION

It is permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer who was formerly employed as a lawyer by a city to be required to comply with a provision of a city’s ethics code that prohibits all former city employees from representing before the city for compensation any unrelated person for a period of two years after termination of employment with the city.

Tex. Comm. On Professional Ethics, Op. 551 (2004)