Can a Washington lawyer employed by one state agency open a private practice representing employees of other state agencies in civil actions against the state?

Plain-English summary

The inquirer is a full-time lawyer for a Washington state agency who drafts contracts, reviews policies, and represents the agency in workers' compensation matters. He planned to open a private practice focused on employment discrimination, wrongful termination, public-employee First Amendment claims, and workers' compensation claims for private and public employees of state agencies. He assumed he could not represent employees of his own agency and asked about representing state employees from other agencies.

The committee cautioned that the inquiry rested on assumptions that might be legally unfounded, and that the RPC Committee does not opine on legal issues. It assumed, without deciding, that the inquirer does not have an attorney-client relationship with his current employer (he is not described as an assistant attorney general), so his responsibilities are governed by RPC 1.7(a)(2) and RPC 1.11. Under RPC 1.7(a)(2), a concurrent conflict exists where there is a significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or the lawyer's own personal interest. The committee explained that RPC 1.7(a)(2) would bar representing a private client if the representation would be materially limited by the government lawyer's interest in maintaining his employment or by the interests of the third-party state agency, but it lacked sufficient facts to assess that or the extent to which outside employment is permitted, directing the inquirer to the State Executive Ethics Act (RCW 42.52.020-120) and agency policies.

The committee added that the private client may consent under RPC 1.7(b), but it could not opine on whether the exceptions applied. RPC 1.11(d) also provides guidance: it prohibits representing a private client in a matter in which the lawyer participated personally and substantially as a government employee absent the government entity's written consent (subject to state ethics laws and agency policies), bars conduct that would violate RPC 1.7, and (under RPC 1.11(c)) prohibits using confidential government information to the disadvantage of the person it concerns. The committee concluded that the RPCs restrict government employees' private practice in significant ways and directed the inquirer to seek further guidance from his employer or the Executive Ethics Board.

In practice

Under this opinion, and under the conflict rules as they stood in 2006, the analysis runs through two rules once the committee assumes the lawyer is not in an attorney-client relationship with his agency. The opinion holds that RPC 1.7(a)(2) can bar an outside representation that would be materially limited by the lawyer's personal interest in keeping his job or by another agency's interests, with client consent possibly available under RPC 1.7(b); and that RPC 1.11 separately restricts representing private clients in matters the lawyer handled personally and substantially in government, and bars misuse of confidential government information. The committee repeatedly noted it lacked the facts to resolve the conflicts and pointed the lawyer to the State Executive Ethics Act and his agency's policies, which may independently limit outside practice.

Common questions

Q: Can a state-agency lawyer represent employees of other agencies against the state?

A: It depends. The committee concluded RPC 1.7(a)(2) could bar the representation if it would be materially limited by the lawyer's interest in keeping his job or by the other agency's interests, and RPC 1.11 may restrict it; the committee lacked facts to decide.

Q: Does the lawyer's own job create a conflict?

A: It can. The committee identified the lawyer's personal interest in maintaining his employment as a potential material limitation under RPC 1.7(a)(2).

Q: Can the private client just consent?

A: Possibly, under RPC 1.7(b), but the committee said it could not opine on whether the consent exceptions applied on the facts presented.

Q: Where else should the lawyer look?

A: The committee directed the inquirer to the State Executive Ethics Act (RCW 42.52.020-120), his agency's policies, and the Executive Ethics Board, which may restrict outside employment beyond the RPCs.

Background and rules framework

The opinion interprets Washington RPC 1.7 (concurrent conflicts; the counterpart to Model Rule 1.7), particularly RPC 1.7(a)(2) (material-limitation conflicts) and RPC 1.7(b) (consent), and RPC 1.11 (special conflicts for current and former government officers and employees; the counterpart to Model Rule 1.11), including RPC 1.11(c) and (d). It also points to the State Executive Ethics Act, RCW 42.52.020-120.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7, 1.7(a)(2), 1.7(b) (concurrent conflicts; material limitation; consent)
• Model Rule 1.11 / Washington RPC 1.11, 1.11(c), 1.11(d) (conflicts for government lawyers; use of confidential government information)

Statutes:

• RCW 42.52.020-120 (State Executive Ethics Act)

See also

• WSBA Ethics Op. 1050: Successive Government and Private Employment
• WSBA Ethics Op. 1064: Former Agency Lawyer, Firm Screening
• WSBA Ethics Op. 1268: Legislator-Lawyer Suing the State

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1576

Original opinion text

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

Advisory Opinion: 2128
Year Issued: 2006
RPC(s): RPC 1.7(a)(2), 1.11
Subject: May a lawyer who works for one state agency represent employees of another state agency in civil actions against the state?

FACTS

The inquirer describes himself as a lawyer employed full-time by an agency of the State of Washington. In his capacity as a state employee, he handles various assignments such as drafting contracts, reviewing agency policies and representing the agency in workers compensation matters before the Board of Industrial Insurance Appeals.

The inquirer intends to open a private law practice, which will eventually expand to a full-time practice. He intends to focus on “employment discrimination, wrongful termination, public employee First Amendment claims, and workers compensation claims for private employees and public employees of state agencies.” He assumes that he would be prohibited from representing employees of his own state agency and is inquiring about prohibitions on the representation of state employees from other agencies.

DISCUSSION

The inquiry is premised on certain assumptions that may be unfounded as a matter of law. While the RPC Committee does not opine on legal issues, its response to the inquirer could be misleading to other practitioners if it accepts these assumptions at face value.

First, the inquirer seems to presume that he has an attorney-client relationship with his current state agency. However, he does not describe himself as an assistant attorney general. Thus the Committee assumes, but does not opine, that the inquirer does not have an attorney client relationship with his current employer. The Committee’s response is based on this assumption and leads to the assumption that the inquirer’s responsibilities are governed by RPC 1.7(a)(2) and RPC 1.11.

RPC 1.7 provides that :

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer`s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

RPC 1.7(a)(1) is inapplicable because it addresses concurrent conflicts between two clients.

RPC 1.7(a)(2) would bar the representation of the private client if such representation would be materially limited by the government lawyer’s own interest in maintaining his employment with his current state agency employer or the interests of the third party state agency. The Committee does not have sufficient facts to assess whether the inquirer’s representation of a private party would be limited by his duty of loyalty and confidentiality to the governmental entity. Nor does the Committee have sufficient facts to determine the extent to which the inquirer is permitted to engage in outside employment. The Committee directs the inquirer to the State Executive Ethics Act, especially RCW 42.52.020-120 and to the state agency’s policies.

The private client may consent to the representation notwithstanding a concurrent conflict under the circumstances set forth in RPC 1.7(b). On the facts presented by the inquirer, the Committee can not opine on whether the proposed representation would be allowed under the exceptions set forth in RPC 1.7(b).

RPC 1.11(d) also provides guidance to the inquirer. RPC 1.11 prohibits representation of a private client in a matter in which the lawyer participated personally and substantially as a government employee, absent the written consent of the government entity. State ethics laws and internal agency policies may restrict the extent to which such consent can be given. Comment 1 to RPC 1.11. RPC 1.11 also prohibits conduct by a governmental employee that would violate RPC 1.7. Finally, RPC 1.11(c) prohibits a lawyer from using confidential information obtained about a person pursuant to the government’s authority from using the information to the disadvantage of that person.

CONCLUSION

The RPCs restrict the private practice of law by members of the bar who also are government employees in significant ways. The inquirer should seek additional guidance from his employer or the Executive Ethics Board, in accordance with the discussion above.