Can a government lawyer negotiate for a job with the affiliate of a company the lawyer has been investigating?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring lawyer, as an employee of a government agency, had during the past two years conducted an investigation of the trust department of an out-of-state bank, and now considered negotiating for employment with a local affiliate of that bank. Both banks were owned by the same holding company.
The committee could not determine from the facts whether the lawyer would participate in the future in the investigation. It was of the opinion that if the lawyer would continue to participate, RPC 1.11(c)(2) would prohibit negotiating employment with the bank or with the attorneys for the bank, but that if there would be no future participation, the lawyer would not be prohibited from such negotiation. Because the two affiliated banks were owned by the same holding company, the committee was of the opinion that the local affiliate is a "party" to the matter being investigated as that term is used in RPC 1.11(c)(2).
Currency note
This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 government lawyer job-hunt with a company the lawyer is investigating?
A: Under this 1990 opinion, only if the lawyer will have no future participation in the investigation; if the lawyer would continue to participate, RPC 1.11(c)(2) prohibits negotiating with the bank or its attorneys.
Q: Does it matter that the prospective employer is an affiliate, not the entity investigated?
A: Yes, but not in the lawyer's favor; because both banks shared the same holding company, the committee was of the opinion the local affiliate is a "party" to the matter under RPC 1.11(c)(2).
Q: What fact did the committee say was decisive?
A: Whether the lawyer would continue to participate in the investigation; the committee could not determine that from the facts and made its conclusion conditional on it.
Background and rules framework
At the time of this opinion, Washington's RPC 1.11(c)(2) restricted a government lawyer who is personally and substantially participating in a matter from negotiating private employment with a party (or that party's lawyer) to the matter, the subject the Model Rules place in Rule 1.11. The committee read "party" to reach a corporate affiliate under common holding-company ownership.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.11 (former and current government lawyers)
- Washington RPC 1.11(c)(2)
See also
- WA Ethics Op. 1349: Former Agency Lawyer Appearing Before the Agency
- WA Ethics Op. 1350: Former AAG Suing a Former Client College
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=436
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee reviewed your inquiry concerning the propriety of negotiating for employment with a local affiliate of an out of state bank. During the past two years [as an employee of a government agency], you have conducted an investigation of the trust department of the out of state bank. Both banks are owned by the same holding company. The Committee could not determine, based upon the facts presented, whether you would be participating in the future in the investigation in any way. However, the Committee was of the opinion if you would be continuing to participate, then RPC 1.11(c)(2) would prohibit you from negotiating employment with the bank or with the attorneys for the bank. But if there would be no future participation by you then you would not be prohibited from such negotiation. Because both affiliated banks are owned by the same holding company, the Committee was of the opinion that the local affiliate is a "party" to the matter being investigated as that term is used in RPC 1.11(c)(2).
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