1.11 Special Conflicts-of-Interest of Former and Current Government Officers and Employees

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), 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 timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation.

(c) 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. As used in this Rule, the term“confidential government information” means information that 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. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless:

(A) the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation; or

(B) under applicable law, no one is or by lawful delegation may be authorized to act in the lawyer’s stead in the matter.

(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) 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.


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 1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict-of-interest, including but not limited to 5 M.R.S. § 18. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 1.0(e) for the definition of informed consent.

[2] Paragraphs (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 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and requires informed consent. Because of the special problems raised by imputation within a government agency, paragraph (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] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus 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 paragraph (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 paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] This Rule 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 limitation of disqualification in paragraphs (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, 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 paragraph (d), the latter agency is not required to screen the lawyer as paragraph (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 1.13 Comment [9].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(k) (requirements for screening procedures). These paragraphs do 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] Informed consent, confirmed in writing, which writing should include a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be requested as soon as practicable after the need for screening becomes apparent.

[8] Paragraph (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] Paragraphs (a) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule, 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.


REPORTER’S NOTES:

Model Rule 1.11 (2002) corresponds to M. Bar R. 3.4(d)(2)(i)-(iv) and addresses conflicts of interest and imputed disqualification with respect to lawyers who have served or are currently serving as lawyers for a governmental agency or entity. Model Rule 1.11 (2002) and the Maine Bar Rules differ substantially in their organization. The Model Rule, however, does not represent a significant substantive departure from the Maine Bar Rules. Because of this, and because Model Rule 1.11 (2002) builds upon the general conflict-of-interest rules found in Rules 1.7 and 1.9(c), the Task Force recommended the adoption of the structure of Model Rule 1.11 (2002), with some substantive modifications to reflect best practices in Maine.

Model Rule 1.11 (a), (b) and (c) (2002) correspond to M. Bar R. 3.4(d)(2)(i) and (iii), and address the issue of conflicts of interest when a former government lawyer enters the private practice of law. Model Rule 1.11(d) (2002), corresponding to M. Bar R. 3.4(d)(2)(ii) and (iv), addresses the issue of conflicts of interest when a former private practice lawyer begins to serve as a public officer or employee. Lawyers working for Maine State government, whether serving as Assistant Attorneys General or as state officials, are also governed by statutory conflict-of-interest provisions, in addition to the Maine Rules of Professional Conduct. See 5 M.R.S. § 18 et. seq. Although the language of 5 M.R.S. § 18 varies somewhat from the conflict-of-interest provisions found in the Maine Rules of Professional Conduct, it is intended to address substantially the same concerns.

Model Rule 1.11(a) (2002) specifically states that lawyers who have formerly served as a public officer or employee of the government are subject to Rule 1.9(c). Rule 1.9(c) is the rule governing duties to former clients that generally prohibits the use by a lawyer, or the lawyer’s current or former firm, of confidences and secrets of a former client to the former client’s disadvantage. Rule 1.9(c) also precludes a lawyer from revealing a client’s confidences and secrets. In contrast, M. Bar R. 3.4(d) prohibits the use of confidential information by a former government lawyer. The Task Force recommended adoption of the Model Rule (2002) expanded prohibition against both the use and disclosure of confidences and secrets.

Model Rule 1.11(a) (2002) further provides that a lawyer shall not represent a client in connection with a matter in which the lawyer participated, personally and substantially as a public officer or employee. Whereas under M. Bar R. 3.4(d)(2)(i), such representation is absolutely prohibited (and is not limited only to matters in which a lawyer personally and substantially participated), Rule 1.11(a) allows the governmental office or agency to waive the conflict-of-interest (with such waiver confirmed in writing). The Task Force recognized that, as a practical matter, the government is not likely to consent to such types of conflicts of interest, due to the importance of public trust in the decisions of the government. Furthermore, Section 18 sets forth a time-barred conflict-of-interest rule for former Maine state government employees (barring representation involving matters the former government employee worked on prior to his or her last year of government employment for one year after leaving employment, whereas the employee is permanently barred from representation involving matters worked on during that final year of employment). Inclusion of the Rule 1.11(a) provision for informed consent provides the government with a vehicle to approve conflicts that are within the scope of these rules and not barred by § 18, when circumstances are otherwise appropriate for such consent. For these reasons, the Task Force recommended adoption of Model Rule 1.11(a) (2002).

Model Rule 1.11(b) (2002) is the rule governing imputation of conflicts of interest when a lawyer leaves employment as a public officer or employee of the government. The Task Force recognized three possible formulations of the imputation rule in the government lawyer context: The rule set forth in M. Bar R. 3.4(d)(2)(iii), which conditions the government’s waiver of a conflict-of-interest upon the effective screening (as such term is defined in Model Rule 1.0(k) (2002)) of the conflicted former government lawyer; a rule consistent with Model Rule 1.10 (2002), which also allows the client (in this context, the governmental officer or agency) to waive an imputed conflict-of-interest, and implicitly allows the waiver to be conditioned upon the screening of the conflicted lawyer; and the rule set forth in Model Rule 1.11 (2002), requiring screening of a conflicted former government lawyer, but only notice to (not consent of) the governmental officer or agency.

After discussion (and some dissent) the majority of the Task Force recommended retention of the substance of M. Bar R. 3.4(d)(2)(iii), which states that the firm in which a disqualified former government lawyer works may represent a client in connection with a matter in which the conflicted former government lawyer participated personally and substantially as a public officer or employee, only if the former government lawyer is properly “screened” (See Rule 1.0(k)) and the governmental officer or agency gives its informed consent, confirmed in writing. This rule is consistent with the objective of protecting the public trust in government. It also has been the operative rule in Maine, and has presented no substantial barriers to lawyers’ serving the public interest as governmental officers and employees, nor adversely impacting former government lawyers’ transition into the private sector.

Model Rule 1.11(c) (2002) creates a special category of “confidential government information” in order to prohibit a former government lawyer form representing a private client whose interests are adverse to a person about whom the lawyer has such information and could use it to the disadvantage of that person; the lawyer need not have represented the government agency or acted as a public official with respect to a particular matter for this prohibition to apply. While this provision is comparable to the M. Bar R. 3.4(d)(2)(i) prohibition on use of confidential information obtained through government employment, the more specific language of Rule 1.11(c) more clearly puts the former government lawyer on notice that the lawyer may not use confidential information that the lawyer became privy to merely as a result of employment without having acted as a representative of an agency or taken action on a particular matter.

Model Rule 1.11(d) (2002), read together with Rule 1.9, addresses the issue of conflicts of interest involving the current government lawyer who formerly represented clients as a private sector lawyer. With respect to personal disqualification of the former private sector lawyer, Rule 1.9 and M. Bar R. 3.4(d)(ii) both allow representation of the government client that is adverse to a former private client, with the informed consent of the private client. Model Rule 1.11(d)(2)(i) (2002), however, requires the informed written consent of the relevant governmental officer or agency, in addition to the consent of the private client. The Task Force recommended the addition into 1.11(d)(2)(i) of the provision found in M. Bar R. 3.4(d)(2)(ii)(A), allowing a government lawyer/official to act without the informed consent of a former client in a matter in which the lawyer participated personally and substantially on behalf of that client if no one else has or can be delegated authority to act in the lawyer’s stead.

There is no provision in the Maine Bar Rules that is comparable to Model Rule 1.11(d)(2)(ii) (2002), prohibiting a government lawyer from negotiating for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the government lawyer is participating personally and substantially. This situation is addressed in 5 M.R.S. § 18(2)(C), but is limited to situations in which the interests of the person or organization with whom the lawyer is negotiating possible employment is “direct and substantial.” The Task Force recommended the adoption of the clearer and more broadly applicable provision found in Rule 1.11(d)(2)(ii).

While “matter” is not defined in the Maine Bar Rules, the definition set forth in Model Rule 1.11(e) (2002) is consistent with the definition of “proceeding” in 5 M.R.S. § 18, except for the inclusion of matters covered by the government agency’s conflict-of-interest rules. Because of the sometimes complex responsibilities of government agencies and the need for clear prohibitions in the event of lawyer disciplinary action, the Task Force recommended the inclusion of this descriptive definition.