Can a lawyer who became head of a state agency make final decisions in cases involving people the lawyer previously represented?

Plain-English summary

A lawyer who had previously represented two employees of a state agency was later appointed head of that agency (Chief of the Washington State Patrol). The agency head is typically responsible for making the final administrative recommendations of the two review panels before which the lawyer had represented the employees. The lawyer asked about the conflicts this presented.

The committee concluded that if the courts ultimately rule the agency head cannot delegate the authority to decide either case, the lawyer would not be in violation of RPC 1.11 by making the final decisions, because RPC 1.11(c) exempts the rule's application to a government officer where external law would not allow delegation, and other law relieves the lawyer of the RPC 1.11 obligations whether or not a remittal of disqualification is filed. If the courts rule that the law allows delegation, then the existing RPC 1.11(c) screening the lawyer is using satisfies the lawyer's ethical obligations. The committee added that the lawyer may violate RPC 1.11(c) by making a final decision while the external-law question of delegation remains unresolved, and that until it is clear the decision is non-delegable the rule applies. The committee also explained that consent is irrelevant under the rule, because private parties cannot consent to a conflict arising from a former private representation by a now-government official; there is no reciprocal consent equivalent to the consent government can give when a former government officer seeks to represent a private party (see RPC 1.11(a)).

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.11 corresponds to ABA Model Rule 1.11 (special conflict-of-interest rules for former and current government officers and employees).

Common questions

Q: Can the agency head decide cases involving people the lawyer once represented?

A: The committee concluded that if the courts rule the head cannot delegate the decisions, RPC 1.11 does not bar making them, because RPC 1.11(c) exempts a government officer where external law forbids delegation.

Q: What if the law allows the head to delegate the decision?

A: The committee said that if delegation is allowed, the existing RPC 1.11(c) screening the lawyer is using satisfies the lawyer's ethical obligations.

Q: Can the affected parties consent to waive the conflict?

A: No. The committee said consent is irrelevant because private parties cannot consent to a conflict arising from a former private representation by a now-government official.

Q: What should the lawyer do while the delegation question is unresolved?

A: The committee said the lawyer may violate RPC 1.11(c) by making the final decision before the external-law question is resolved, that the rule applies until the decision is shown to be non-delegable, and that complying with a court order keeps the lawyer in compliance with the rules.

Background and rules framework

The opinion applied RPC 1.11 (special conflict rules for government officers and employees, corresponding to ABA Model Rule 1.11). The committee made the outcome turn on a question of external law: whether the agency head can delegate the decisions. RPC 1.11(c) removes the conflict bar where external law forbids delegation; where delegation is permitted, screening under RPC 1.11(c) cures it. The committee treated the matter as governed by the rule until the delegability question is resolved, and rejected client consent as a path because the conflict arises from a former private representation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.11 (special conflicts of interest for former and current government officers and employees); Washington RPC 1.11(a), 1.11(c)

See also

• WA Ethics Op. 1655: A Spouse's Public Defender Conflicts Are Not Imputed

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=743

Original opinion text

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

Advisory Opinion: 1661
Year Issued: 1996
RPC(s): RPC 1.11(a); 1.11(c)
Subject: Conflict of interest; lawyer now head of state agency responsible for final recommendation regarding agency employees lawyer previously represented

The Committee discussed your inquiry regarding conflicts presented by your previous representation of [two employees of a state agency, and your subsequent appointment as head of that agency.] The head of the agency is typically responsible for making final administrative recommendations of the [two review panels before which you represented the employees.] The Committee concluded that if the courts ultimately rule that the [head of the agency] cannot delegate the authority to make the decision in either of these cases, you would not be in violation of RPC 1.11 by making the final decisions. The language of RPC 1.11(c) exempts application of the rule to a governmental officer if the external law would not allow delegation of authority. Further, there is no requirement for a remittal of disqualification if the courts rule that you cannot delegate your authority as Chief of the Washington State Patrol. Other law relieves you from your obligations of RPC 1.11 whether or not a remittal of disqualification is filed. If the courts rule that the law allows you to delegate these decisions, then the existing RPC 1.11(c) screening which you are using with regard to these cases satisfies your ethical obligations under RPC 1.11. If you are uncertain what you should do, you should do what the court tells you. As long as you are complying with a court order, you will be in compliance with the Rules of Professional Conduct. You may violate RPC 1.11(c) if you make the final decision when there has been no resolution of the external law regarding delegation of authority. The issue of consent is irrelevant under the rule since private parties cannot consent to a conflict of interest arising from a former private representation by a now government official. There is no reciprocal consent equivalent to the consent which government can give when a former government officer now wishes to represent a private party on a matter in which the former government officer had participated. See 1.11(a). In the absence of clarification of the delegability under RPC 1.11(c)(1), the rule does apply until it is clear it is a non-delegable decision. The current screening and delegation would of course satisfy RPC 1.11.