Rule 4-1.11 Client-Lawyer Relationship - Special Conflicts of Interest for Former and Current Government Officers and Employees

COMMENT

[1] A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 4-1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule 4-1.11. See Rule 4-1.0(e) for the definition of “informed consent.”

[2] Rule 4-1.11(a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 4-1.10 is not applicable to the conflicts of interest addressed by this Rule 4-1.11. Rather, Rule 4-1.11(b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, Rule 4-1.11(d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

[3] Rule 4-1.11(a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under Rule 4-1.11(a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by Rule 4-1.11(d). As with Rule 4-1.11(a)(1) and (d)(1), Rule 4-1.10 is not applicable to the conflicts of interest addressed by Rule 4-1.11(a)(2) and (d)(2).

[4] This Rule 4-1.11 represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus, a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in Rule 4.11(b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in Rule 4-1.11(a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

[5] When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule 4-1.11, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by Rule 4-1.11(d), the latter agency is not required to screen the lawyer as Rule 4-1.11(b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 4-1.13, Comment [6].

[6] Rule 4-1.11(b) and (c) contemplate a screening arrangement. See Rule 4-1.0(k) (requirements for screening procedures). Rule 4-1.11(b) and (c) does not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.

[7] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[8] Rule 4-1.11(c) operates only when the lawyer in 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.

[9] Rule 4-1.11(a) and (d) does not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 4-1.7 and is not otherwise prohibited by law.

[10] For purposes of Rule 4-1.11(e), a "matter" may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

[11] Lawyers often serve as legislators or hold other public offices. This is highly desirable as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. However, the public officer lawyer’s position on matters of public policy can be inconsistent with the interests of a client. The lawyer should advise the client in all situations and at all times be mindful of the disclosure and consent requirements of Rule 4-1.7.