May a former Vermont agency lawyer represent private clients before that agency?
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This page answers the general question as of 2006. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The requesting lawyer had held senior state agency positions, performed some administrative and quasi-judicial work, and later joined a private firm that represented clients before the same agency. The lawyer had personally and substantially participated in relatively few agency matters and proposed to avoid the disputed matters in which the lawyer had been directly involved.
The committee applied Vermont Rule 1.11 to particular matters in which the lawyer had participated personally and substantially. Without the appropriate agency's consent, the lawyer could not represent a private client in the same matter. The opinion distinguished a discrete matter involving identifiable parties and facts from general work interpreting regulations or procedures.
The committee also applied Rule 1.9(c). Even where the new representation was not the same matter, the former agency lawyer could not use or reveal nonpublic information from the government's representation to its disadvantage. The opinion thus conditioned the proposed private work on both the particular-matter restriction and the continuing information duty.
In practice
For the transition described, the opinion allows private representation before the former agency only where the lawyer's earlier government role did not involve personal and substantial participation in that matter, absent agency consent. It separately preserves duties concerning government confidences.
Common questions
Q: Does prior employment by the agency prohibit all appearances before it?
A: No. The opinion focuses on the same particular matters in which the lawyer participated personally and substantially, plus the information duties owed to the former government client.
Q: Is work on general regulations the same matter as a later private client's case?
A: The opinion distinguishes general drafting or interpretation of regulations from a discrete matter involving particular parties and facts.
Q: Can the former agency's confidential information be used in a different matter?
A: The opinion says Rule 1.9(c) can prohibit its use or disclosure to the former government client's disadvantage even when Rule 1.11's same-matter bar does not apply.
Background and rules framework
The opinion applies the 2006 versions of Vermont Rules 1.11 and 1.9(c), and also notes Rule 8.4(e)'s ban on implying an improper ability to influence a government agency.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.9(c), 1.11, and 8.4(e)
Other opinions cited:
- ABA Formal Opinion 342 (1975), defining a particular government matter
- ABA Formal Opinion 97-409 (1997), former government lawyer duties under Rules 1.11 and 1.9(c)
See also
Source
- Landing page: VBA conflict of interest opinions
- Original PDF: Vermont Advisory Opinion 06-07
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