02-05: Conflict of Interest; Former Government Lawyers; Administrative Proceedings; Imputed Disqualification; Screening
9/2002
This Opinion discusses the general conflict analysis for government lawyers switching to private practice that may involve representing private clients against the lawyer’s former government agency.

FACTS[1]

The inquiring attorney recently left the Attorney General's Office to join a private law firm that represents clients before various state agencies.  While employed by the Attorney General's Office, the inquiring attorney represented several state agencies in regulatory and administrative law matters.  The inquiring attorney anticipates being asked to represent clients whose interests are adverse to a state agency the inquiring attorney represented while with the Attorney General's Office, as well as clients whose interests are adverse to individuals or entities who were involved in administrative proceedings in which the inquiring attorney took part while employed by the Attorney General's Office.  The inquiring attorney seeks general guidance about whether it is ethically permissible to represent such clients.

 

QUESTION PRESENTED

Under what circumstances may a former government lawyer represent clients in matters involving a government agency the lawyer formerly represented?

 

RELEVANT ETHICAL RULES

 

ER 1.7.            Conflict of Interest:  General Rule

 

* * * *

 

            (b)            A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

 

(1)            the lawyer reasonably believes the representation will not be adversely affected; and

 

(2)            the client consents after consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

 

ER 1.9.            Conflict of Interest:  Former Client

 

A lawyer who has formerly represented a client in a matter shall not thereafter:

 

* * * *

 

            (b)            use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

 

ER 1.11.            Successive Government and Private Employment

 

            (a)            Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.  No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

 

(1)            the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

 

(2)            written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. 

 

            (b)            Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.  A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

 

* * * *

 

            (d)            As used in this rule, the term "matter" includes:

 

(1)            any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and

 

(2)            any other matter covered by the conflict of interest rules of the appropriate government agency.

 

            (e)            As used in this rule, the term "confidential government information" means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public. 

 

RELEVANT ARIZONA ETHICS OPINIONS

 

Ariz. Op. 85-6

Ariz. Op. 89-04

Ariz. Op. 89-08

Ariz. Op. 93-07

 

OPINION

 

A former government lawyer's conflict of interest obligations are generally found in ER 1.11.  See ABA Formal Ethics Op. 97-409 (concluding that ER 1.11 supplants, rather than supplements, ER 1.9(a), although ER 1.9(b) remains applicable to former government lawyers); cf. 1 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 15.4 at 15-13, 15-14 (3rd ed. 2000) (arguing that a former government lawyer's conflict of interest obligations should be analyzed under both ER 1.9(a) and ER 1.11(a)).[2]  The purpose of ER 1.11 is to "prevent[] a lawyer from exploiting public office for the advantage of a private client."  ER 1.11 Comment; see also Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 334, 718 P.2d 985, 987 (1986) ("This rule is intended to prevent conflicts of interest that arise in the 'revolving door' between government and private practice.").

 

Ethical Rule 1.11(a) prohibits a former government lawyer from personally "represent[ing] a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation."  Because the purpose of the Rule is to prevent exploitation of government office, "there is no requirement that the [private] representation be adverse to the government or its interests, as there is in other conflicts of interest rules; even representation congruent to the interests of the former client is banned, absent consent by the government."  Hazard & Hodes, supra § 15.4 at 15-11—15-12 (emphasis in original).

 

"Matter" is defined in ER 1.11(d) as including "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties."  That definition codifies the definition given in ABA Formal Op. 342, which defined the term as:

 

contemplat[ing] a discrete and isolatable transaction or set of transactions between identifiable parties (footnote omitted).  Perhaps the scope of the term "matter" may be indicated by examples.  The same lawsuit or litigation is the same matter. . . .  By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer . . . from subsequent private employment involving the same regulations, procedures, or points of law; the same "matter" is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties (footnote omitted).

 

ABA Formal Op. 342 (1975), quoted in Hazard & Hodes, supra § 15.5 at 15-15.

 

To have participated "personally and substantially" in a matter, a government lawyer must have "become personally involved to a material degree in the investigative or deliberative process regarding the transactions in question."  Security General, 149 Ariz. at 334, 718 P.2d at 987 (citing ABA Formal Op. 342).[3]

 

Conflicts under ER 1.11(a) may be waived by a government agency, subject to statutory or regulatory restrictions.  ER 1.11(a).  It is the former government lawyer's duty to determine the individual or entity authorized to give informed consent on behalf of a governmental entity.  In most cases, the appropriate individual will be the chief legal officer for the governmental entity - e.g., the Attorney General, county attorney or city attorney - as opposed to an agency head or managerial-level employee.

 

If a former government lawyer is barred by ER 1.11(a) from personally representing a client and the conflict has not been waived, that conflict is not imputed to lawyers in the former government lawyer's firm.  Id.  The firm may represent the client so long as the former government lawyer is "screened from any participation in the matter and is apportioned no part of the fee therefrom" and "written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule."  Id.[4]

 

In addition to considering whether he or she was "personally and substantially" involved in the same "matter" for which a new client seeks representation, the former government lawyer must consider whether ER 1.11(b) applies.  ER 1.11(b) precludes a former government lawyer who acquired "confidential government information about a person" while employed by the government from representing "a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person."  ER 1.11(b).

 

"Confidential government information" is defined narrowly in ER 1.11(e) as information (i) "which has been obtained under governmental authority," (ii) "which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose," and (iii) "which is not otherwise available to the public."  Moreover, ER 1.11(b) "operates only when the lawyer is [sic] question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer."  ER 1.11 Comment.  In short, "if the [former] government lawyer does not have information about a particular party that she learned only because of her position in the government, Rule 1.11(b) should not apply."  Hazard & Hodes, supra § 1.7 at 15-22 (emphasis in original).

 

Unlike conflicts under ER 1.11(a), a conflict under ER 1.11(b) is not waivable.  Annotated Model Rules of Professional Conduct at 182.  If a former government lawyer has a conflict under ER 1.11(b), the conflict is not imputed to his or her firm so long as the former government lawyer is screened in accordance with ER 1.11(a).  Id.

 

The last question that a former government lawyer must address in deciding whether to represent a private client on matters involving a governmental entity he or she formerly represented is whether ER 1.9(b), which prohibits a lawyer from "us[ing] information relating to the representation [of a former client] to the disadvantage of the former client except as ER 1.6 would permit," precludes the lawyer from taking on the new representation.  As the ABA's Standing Committee on Ethics and Professional Responsibility explained in Formal Op. 97-409, a former government lawyer representing clients against a government agency he or she formerly represented may be subject to disqualification if, in the new representation, he or she would be required to use or reveal confidences of his or her former government client.

 

Although Rule 1.9(c)[5]does not provide for automatic disqualification by virtue of a lawyer's prior representational activities, its restrictions on the use or disclosure of a former client's confidences may effectively disable a lawyer from undertaking a new representation under certain circumstances (footnote omitted).  If a lawyer has information relating to the prior representation of her government client that would necessarily be used or revealed in a new client's cause, but which her former client will not allow her to use or reveal, her obligations to her former client under Rule 1.9(c) would almost certainly be deemed to "materially limit" her representation of the new client under Rule 1.7(b).  Not only could her inability to use or reveal her former government client's confidences compromise her competence and zeal in the new representation, but she would be subject to a disqualification motion by her former government client based on her knowledge of its confidences.

 

* * * *

 

Accordingly, the lawyer could not undertake the new representation unless the former government client consented to waive the confidentiality barrier posed by Rule 1.9(c).

 

Formal Op. 97-409, quoted in ABA/BNA Lawyers' Manual on Professional Conduct, Ethics Opinions 1996-2000 at 1101:157.  While not defining what "information relating to the representation" might trigger a former government lawyer's obligation under ER 1.9(b), the Opinion noted that "general knowledge of policies and practices of her former agency, gained through employment by or representation of that agency," would ordinarily not be considered disqualifying under ER 1.9(b).  Id. at 1101:157 n. 17.

 

If a former government lawyer has a conflict under ER 1.9(b), that conflict would not be imputed to his or her firm, and other members of the firm could undertake the representation so long as the former government lawyer is screened in accordance with ER 1.11(a).  Id. at 1101:158.

 

CONCLUSION

 

The inquiring attorney may ethically personally represent clients in matters involving state agencies the inquiring attorney formerly represented so long as the following conditions are met:  First, the matter for which a new client seeks representation is not one in which the inquiring attorney personally and substantially participated while employed by the Arizona Attorney General's Office.  If so, the inquiring attorney can only represent the new client if the former government client consents to the representation.  Second, the inquiring attorney does not possess confidential government information that could be used to the disadvantage of a party opposing the new client.  Third, the representation of the new client will not require the inquiring attorney to use the former government client's confidential information.  If so, the inquiring attorney can only represent the new client if the former government client consents.  If the inquiring attorney is ethically precluded from personally representing the new client, the inquiring attorney's firm may represent the client so long as the inquiring attorney is screened in accordance with ER 1.11(a) and prompt written notice is provided to the inquiring attorney's former government client.

[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2002

 

[2] Other state and federal laws also may impose restrictions on a former government lawyer's ability to represent clients in matters involving a government agency the lawyer formerly represented.  See A.R.S. § 38-504(A); 18 U.S.C. § 207.  An analysis of those statutes is outside our jurisdiction.

 

[3] The former government lawyer should also consider whether the representative of a private client creates an "appearance of impropriety."  See, e.g., Romley v. Superior Court, 184 Ariz. 223, 227, 908 P.2d 37, 41 (App. 1995); Turbin v. Superior Court, 165 Ariz. 195, 199, 797 P.2d 734, 738 (App. 1990).

 

[4] The Comment to ER 1.11 notes that the firm need not "give notice to the government agency at a time when premature disclosure would injure the client," but that notice should be given "as soon as practicable in order that the government agency will have a reasonable opportunity to ascertain that the [former government] lawyer is complying with ER 1.11 and to take appropriate action if it believes the lawyer is not complying."  ER 1.11 Comment.

 

[5] ABA Model Rule 1.9(c) is the equivalent to Ariz. ER 1.9(b).