If a firm that is outside counsel for a local government hires that government's own lawyer who worked the same case, is the firm disqualified?

Plain-English summary

A law firm was considering hiring an attorney who then worked for a local government entity. In that role, the attorney had been substantially involved in ongoing litigation in which the firm served as the local government's special outside counsel; the two had worked closely as advocates for the same client, and the matter could continue for up to two more years. The committee was asked whether the firm could hire the attorney if he was screened from the ongoing matter (including any direct financial benefit to the firm from it), and whether screening would eliminate any imputed disqualification of the rest of the firm.

The controlling rules were DR 9-101(B) (a lawyer must not accept private employment in a matter in which he had substantial responsibility as a public employee) and DR 5-105(E) (imputed disqualification).

The committee concluded that because the attorney had been substantially involved in the ongoing litigation, DR 9-101(B) barred him from personally participating in the same matter in his new private capacity, even though no adverse representation was involved, and any continued personal involvement would be a per se violation of DR 9-101(B). It held that because DR 9-101 has no imputed-disqualification corollary to DR 5-105(E), it was not per se improper for the firm to continue as the government's special outside counsel; imputing an appearance of impropriety to the whole firm would be too elusive and unfocused to warrant disqualifying it on that basis. Because no adverse interests were involved and no imputed disqualification was mandated, the committee concluded that, although the attorney could not personally participate professionally or financially in the representation, no formal screening was necessary (citing LE Op. 702, 942, and several federal disqualification decisions).

Currency note

This opinion was issued in 1992, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, current Rule 1.11 allows a firm to avoid disqualification in certain circumstances by screening the former government lawyer, and Rule 1.11(d) would prohibit negotiating the government lawyer's employment with the firm while both were involved in the subject litigation. 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 work the same matter at a firm that is the government's outside counsel?

A: Under this 1992 opinion, no. The committee held DR 9-101(B) barred him from personally participating in the matter he had substantial responsibility for, even though no adverse interests were involved, and that doing so would be a per se violation.

Q: Is the rest of the firm disqualified?

A: No. The committee held DR 9-101 had no imputed-disqualification provision, so the firm could continue as outside counsel, and imputing an appearance of impropriety to the whole firm would be too elusive to justify disqualifying it.

Q: Was a formal screen required?

A: The committee held no formal screening was necessary, because no adverse interests were involved and no imputed disqualification was mandated, as long as the former government lawyer did not participate professionally or financially in the matter.

Background and rules framework

The opinion interpreted former Virginia DR 9-101(B) (former public employment) and DR 5-105(E) (imputed disqualification). Conflicts for former government officers and employees are now in Virginia Rule 1.11, which, as the committee note explains, both permits screening to avoid imputed disqualification and restricts employment negotiations during the matter under Rule 1.11(d).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 9-101(B); DR 5-105(E) (Code of Professional Responsibility)
• ABA Model Rule 1.11 (former government officers and employees)

Cases:

• General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974).
• Kesselhaut v. United States, 555 F.2d 792 (Ct. Cl. 1977).
• Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106 (1981).

Other opinions cited:

• Virginia LE Op. 702, 942: former government attorney participation and firm disqualification.

See also

• VA LEO 1478: Former Judicial Law Clerk and Firm Screening
• VA LEO 1815: Local Government Attorney, BZA, and Concurrent Conflict
• VA LEO 1773: Legislator's Firm Clients Before Local Boards

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1430.pdf

Original opinion text

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

Council Opinion
February 22, 1992
Legal Ethics Committee Notes. – Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it
screens the former government lawyer. Also, Rule 1.11(d) would prohibit negotiation the government lawyer’s
employment with the private firm while they were both involved with the subject litigation.

LEGAL ETHICS OPINION 1430

APPEARANCE OF IMPROPRIETY:
FORMER LOCAL GOVERNMENT
ATTORNEY HIRED BY FIRM
EMPLOYED AS OUTSIDE COUNSEL
FOR SAME LOCAL GOVERNMENT
ENTITY.

A law firm is considering offering employment to an individual who is presently an
attorney for a local government entity. In that capacity, the attorney has been
substantially involved in ongoing litigation in which the law firm in question is acting as
special outside counsel for the local government. The individual local government
attorney and the law firm have worked closely together as advocates for the local
government entity and the matter in question may continue for as long as two more
years.
The Committee has been asked to opine whether, under the facts of the inquiry, it
would be improper for the law firm to employ the attorney provided that the attorney is
screened from any involvement in the ongoing matter with his prior employer, including
any direct financial benefit accruing to the firm from its involvement in such matter.
More specifically, it has been inquired whether such screening will have eliminated any
risk of imputed disqualification of other members of the firm.
The Committee opined that, since the government attorney/potential new hire has been
substantially involved in ongoing litigation, the plain language of DR:9-101(B) prohibits
the attorney from personally participating in the same matter in his new capacity as a
private attorney, although adverse representation is not involved. Any continued personal
involvement by the former government attorney in the matter would be per se violative of
DR:9-101(B).
The Committee is of the opinion that since DR:9-101 and its component subparts
contain no corollary to the imputed disqualification required by DR:5-105(E), it would
not be per se improper for lawyers in the firm to continue to serve as special outside
counsel to the governmental entity by which the new lawyer has previously been
employed. The Committee believes that the imputation of an appearance of impropriety
to all the lawyers in the firm would be too elusive and unfocused to warrant
disqualification of the entire firm based purely on that appearance. Finally, since no
adverse interests are involved and, thus, no imputed disqualification is mandated
by DR:9-101(B), the committee opines that although the attorney may not personally
participate, professionally or financially, in the representation, no formal screening will
be necessary. [ DR:9-101(B); LE Op. 702, LE Op. 942; General Motors Corp. v. City of
New York, 501 F.2d 639 (2d Cir. 1974); Kesselhaut v. U.S., 555 F.2d 792 (Ct. Cl. 1977);
Armstrong v. McAlpin, 625 F.2d 433, 445 (2d Cir. 1980), vacated on other grounds, 449
U.S. 1106 (1981) (quoting Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979);
Kadish v. Commodity Futures Trading Commission, 548 F. Supp. 1030, 1034 (N.D. Ill.
E.D. 1982).]