After leaving a Texas regulatory agency, can a lawyer represent a client before that agency on a matter that started while the lawyer worked there but that the lawyer never worked on?

Plain-English summary

Less than a year after leaving a Texas regulatory agency, a lawyer appeared before the same agency representing a client in a matter pending there. The matter had originated while the lawyer worked at the agency, but the lawyer had not participated personally or substantially in it. In other, unrelated contested cases the lawyer had done substantial agency work (discovery, evidence evaluation, rule changes, charges, order review, settlement conferences). The agency argued Rule 1.10 and Section 572.054(b) of the Texas Government Code barred the representation.

The Committee applies Rule 1.10(a), which bars a former government lawyer from representing a private client in a matter in which the lawyer "participated personally and substantially" as a public officer or employee, unless the agency consents. Rule 1.10(f) defines "matter" to exclude rule-making but to include adjudicatory proceedings and similar particular transactions involving specific parties, and allows an agency's own conflict rules to widen the term. The Committee explains that even a wider definition of "matter" does not change the personal-and-substantial-participation standard: Rule 1.10(a) still does not apply unless the lawyer met that standard for the matter.

Here, the only connection between the lawyer and the matter was the lawyer's employment at the agency, and the Committee notes that personal and substantial participation cannot be imputed from title of office or statutory authority (citing Spears v. Fourth Court of Appeals). The Committee adds that Rule 1.09 (former-client conflicts) does not apply, because successive government and private employment is governed by Rule 1.10 (Comment 1 to Rule 1.09), and notes the Texas Ethics Commission reached a parallel result under Section 572.054(b) in Ethics Advisory Opinion 470. The lawyer may therefore represent the client.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer who has left a regulatory agency can represent a client before that agency on a matter that began during the lawyer's tenure, provided the lawyer had no personal and substantial role in that matter. The Committee makes personal-and-substantial participation the operative test under Rule 1.10(a) and rejects imputing it from the lawyer's former title or authority. It also confirms that this revolving-door question is governed by Rule 1.10, not the former-client rule (Rule 1.09).

Common questions

Q: I left a state agency; can I now represent a client before that agency on a case that was open while I worked there?

A: Per Opinion 574, yes, if you had no personal and substantial participation in that matter while employed. Rule 1.10(a)'s bar turns on personal and substantial participation, not on whether the matter existed during your employment.

Q: Does it matter that I did substantial work on other cases at the agency?

A: No. The Committee says the bar is matter-specific; substantial work on unrelated matters does not bar you from a particular matter in which you had no personal and substantial participation.

Q: Is this analyzed under the former-client conflict rule?

A: No. The Committee says successive government and private employment is governed by Rule 1.10, not Rule 1.09 (Comment 1 to Rule 1.09).

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.10 (successive government and private employment), corresponding to ABA Model Rule 1.11 (special conflicts of interest for former and current government officers and employees): Rule 1.10(a) (the personal-and-substantial-participation bar, subject to agency consent) and Rule 1.10(f) (definition of "matter"). It distinguishes Rule 1.09 (former clients) as inapplicable and applies Section 572.054(b) of the Texas Government Code.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for former and current government officers and employees)
• Texas Disciplinary Rule 1.10(a), 1.10(f)
• Texas Disciplinary Rule 1.09, Comment 1 (noted as inapplicable)

Statutes:

• Tex. Gov't Code Section 572.054(b)

Cases:

• Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990), personal and substantial participation cannot be imputed from title of office or statutory authority

Other opinions cited:

• Texas Ethics Commission, Ethics Advisory Opinion 470 (May 12, 2006): Section 572.054(b) does not bar representation in a case opened during agency employment if the lawyer did not personally participate and it was not within the lawyer's official responsibility

See also

• TX Ethics Op. 567: A City Attorney Advising an Ethics Board That Is Investigating the City Council
• TX Ethics Op. 578: Suing a Former-Client Municipality, and Whether Screening Helps

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-574/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_574.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 for a former employee of a Texas regulatory agency to represent a client before the agency in a matter that originated during the lawyer’s employment but in which the lawyer did not participate personally and substantially?

STATEMENT OF FACTS

Less than a year after terminating employment with a Texas regulatory agency, a lawyer appeared before the same regulatory agency as the representative of a client who was involved in a matter pending before the agency. The matter originated while the lawyer was employed by the agency but the lawyer had not participated personally or substantially in the matter when he was employed by the agency.

With respect to other contested cases unrelated to the matter in question, the lawyer while employed by the agency had conducted discovery, evaluated evidence, participated in rule changes, filed formal charges against licensees, reviewed orders, and attended settlement conferences. The agency took the position that, under Rule 1.10 of the Texas Disciplinary Rules of Professional Conduct and under section 572.054(b) of the Texas Government Code, the lawyer was not permitted to represent the client in the pending matter.

DISCUSSION

Rule 1.10(a) of the Texas Disciplinary Rules of Professional Conduct specifically deals with successive government and private employment of lawyers and provides as follows:
“(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 personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.”
Thus, unless the government agency consents, a lawyer who has been employed by a government agency may not after leaving the agency represent a client with respect to a matter in which the lawyer had “participated personally and substantially” while an employee of the agency.

Rule 1.10(f) specifies the meaning to be given to the term “matter” for purposes of the provisions of Rule 1.10:
“(f) As used in this rule, the term “matter” does not include regulation- making or rule-making proceedings or assignments, but includes:
(1) Any adjudicatory proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge accusation, arrest or other similar, particular transaction involving a specific party or parties; and
(2) any other action or transaction covered by the conflict of interest rules of the appropriate government agency.”
Although the scope of the term “matter” for purposes of Rule 1.10 may be greater under Rule 1.10(f)(2) as a result of a particular agency’s conflict of interest rules, the personal and substantial participation standard of Rule 1.10(a) would not be affected. Hence, even if the term “matter” in the case of a particular agency has a wider scope because of the terms of the agency’s conflict of interest rules and the operation of Rule 1.10(f)(2), Rule 1.10(a) would still not apply to a former agency lawyer in connection with a matter, however defined, unless the personal and substantial participation standard included in Rule 1.10(a) was met with respect to the lawyer’s relationship to such matter.

In the circumstances presented, the only apparent connection between the matter in question and the lawyer while an employee of the agency was the lawyer’s employment by the agency. Personal and substantial participation cannot be imputed based on title of office or the existence of statutory authority. Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 657 (Tex. 1990).

Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct governing conflicts of interest with respect to former clients is not applicable to the circumstances considered. Issues concerning successive government and private employment are governed by Rule 1.10 rather than Rule 1.09. See Comment 1 to Rule 1.09.

In connection with this opinion, the Committee notes that the Texas Ethics Commission has recently ruled that section 572.054(b) of the Texas Government Code does not prohibit representation in a case opened while a lawyer was employed by a government agency if the lawyer did not personally participate and the case was not within the lawyer’s official responsibility. Texas Ethics Commission, Ethics Advisory Opinion 470, May 12, 2006.

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a former employee of a Texas regulatory agency is permitted to represent a client in proceedings before the agency in a matter that originated during the lawyer’s employment with the agency but with respect to which the lawyer had no personal and substantial participation as an employee of the agency.

Tex. Comm. On Professional Ethics, Op. 574 (2006)