Can a former government agency lawyer represent a private client in a matter the lawyer worked on while in government, and what consent is required?

Plain-English summary

A lawyer who had been employed as an attorney for a federal agency, where the lawyer was involved in negotiating a settlement of a dispute between a county and an Indian Tribe regarding the Tribe's grant from the agency, asked about conflicts raised by now representing the Tribe in matters related to the regulation of utilities on the Reservation.

The committee was of the opinion that RPC 1.11(a) applies and must be satisfied, so the federal agency's affirmative consent to the representation of the Tribe is required. That affirmative consent might be satisfied by an express statute or by an express authorization from an appropriate government authority; the criminal statute the lawyer cited does not satisfy the requirement, because it merely set limits for criminal conduct as a prohibition. The committee said the lawyer appeared to have received affirmative consent for the current scope of representation and therefore appeared to satisfy RPC 1.11 as to that scope.

The committee added that if the lawyer changes the scope of the representation to matters related to the wastewater treatment grant, or other matters in which the lawyer participated personally and substantially as a government employee, RPC 1.11 requires obtaining the agency's affirmative consent as to that different scope. The committee also said the lawyer should inform the client of the requirements of RPC 1.11 and 1.7(b).

Currency note

This opinion was issued in 1994, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Does a former agency lawyer need consent to represent a private client in a related matter?

A: The committee said RPC 1.11(a) applies and requires the federal agency's affirmative consent to the representation.

Q: Can a criminal statute supply that consent?

A: No. The committee said the cited criminal statute does not satisfy the affirmative-consent requirement, because it merely set limits for criminal conduct; consent might instead come from an express statute or an express authorization by an appropriate government authority.

Q: What happens if the lawyer expands the representation?

A: The committee said that changing the scope to matters the lawyer handled personally and substantially as a government employee, such as the wastewater treatment grant, would require fresh affirmative consent from the agency under RPC 1.11, and the client should be informed of RPC 1.11 and 1.7(b).

Background and rules framework

The opinion applied RPC 1.11 (ABA Model Rule 1.11), which governs successive government and private employment, including subsection (a)'s consent requirement, and referenced RPC 1.7(b) (ABA Model Rule 1.7) on material limitation. The committee tied permission to handle the matter to the former agency's affirmative consent, scoped to the specific representation, and treated a criminal-conduct statute as insufficient to constitute that consent.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.11 (special conflicts for former government officers); Washington RPC 1.11, 1.11(a)
• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7(b)

See also

• WA Ethics Op. 1064: Former Agency Lawyer, Firm Adverse, Screening and Notice
• WA Ethics Op. 1073: Judicial Law Clerk; Post-Clerkship Employment

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=662

Original opinion text

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

Advisory Opinion: 1581
Year Issued: 1994
RPC(s): RPC 1.11
Subject: Successive government and private employment

The Committee discussed your inquiry concerning conflict of interest issues raised by your representation of [an Indian Tribe] in matters related to the regulation of utilities on the Reservation, when you had previously been employed as an attorney for [a federal agency]. In your capacity as counsel to the [federal agency], you had been involved in negotiating a settlement of a dispute between [a county] and the Tribe regarding the Tribe's grant [from the federal agency].

It was the Committee's opinion that RPC 1.11(a) does apply in this case and must be satisfied. Affirmative consent of the [federal agency] to your representation of the Tribe is therefore required. The requirement for affirmative consent from the [agency] might be satisfied by an express statute or by an express authorization by an appropriate government authority. The criminal statute you cite does not satisfy the requirement for affirmative consent; it merely set limits for criminal conduct as a prohibition.

You appear to have received affirmative consent from the [federal agency] for the current scope of your representation of the Tribe in this case and therefore appear to have satisfied RPC 1.11 as to the current scope of representation. If you change the scope of your representation of the Tribe in matters related to the wastewater treatment grant, or in other matters in which you participated personally and substantially as a [government] employee, RPC 1.11 requires you to obtain the [federal agency's] affirmative consent as to that different scope of representation. Additionally, you should inform your client of the requirements of RPC 1.11 and 1.7 (b).