Washington Lawyer

Speaking of Ethics: From Private Practice to Government Counsel

From Washington Lawyer, October 2001

By Ernest T. Lindberg

ethics

The lawyer’s ethical obligations after leaving government for private practice are extensively considered by Rule 1.11 of the D.C. Rules of Professional Conduct. But Rule 1.11 does not consider that familiar Washington scenario of lawyers moving from private to government practice. Unlike ABA Model Rule 1.11(c), which expressly limits a lawyer’s role when moving from private practice to government employment, the D.C. Rules of Professional Conduct have no single corresponding provision. D.C. Bar Ethics Opinion 308 (June 2001) brings together an analysis of the various rules applicable to lawyers leaving private practice for government employment—the so-called reverse revolving door.

Until now, only D.C. Bar Ethics Opinion 210 (1990) (representation of criminal defendants by an attorney seeking position as an assistant U.S. attorney) addressed a narrow facet of an attorney’s move from private practice to government employment. From the perspective of Rule 1.7 (Conflict of Interest: General Rule), the overriding consideration was the lawyer’s responsibility to represent clients zealously while the lawyer sought employment with the U.S. Attorney’s Office. The Legal Ethics Committee concluded that a duty to disclose and seek client consent arises when the attorney takes the first active step in seeking such employment.

Opinion 308 examines the continuing obligations to former private sector clients to protect their confidences and secrets from both disclosure to others and use by the government lawyer to the former client’s disadvantage under Rule 1.6 (Confidentiality of Information). Conflicts of interest also are viewed from the perspective of a lawyer’s continuing obligations to former clients. See Rule 1.9 (Conflict of Interest: Former Client).

The opinion focuses on the continuing duty of confidentiality owed to a former client, which is identified as “[f]irst and foremost among a lawyer’s duties to former clients. . . .” Opinion 308 points to Rule 1.6(f) and its accompanying Comment [28], reminding the lawyer that the duty to protect a former client’s confidences and secrets continues after the lawyer–client relationship has ended. Confidences acquired from a former client cannot be disclosed to the government unless waived by the former client. Rule 1.6(d)(1).

Protection of confidences and secrets requires the lawyer to be vigilant in his or her efforts not to reveal protected information no matter how relevant they may be to the lawyer’s current work with the government. D.C. Rule 1.6 also imposes a more subtle prohibition on the use of protected information; namely, the lawyer may not knowingly “use” protected information “to the disadvantage of the client.”

As the Legal Ethics Committee clarified in Opinion 308, “This prohibition requires that the lawyer who is presented with an assignment in which he could use former client confidences (without necessarily revealing them to others) to achieve a better result for the government must not do so if there is any reasonably foreseeable disadvantage to the former client.” This is true even when the lawyer is not “conflicted out” of a work assignment under Rule 1.9.

Rule 1.6 prohibits the use of confidences or secrets, even in unrelated matters, where a former client will be harmed by their disclosure, absent client consent or if disclosure is permitted under one of the narrow exceptions in Rule 1.6(c) or (d). This restriction does not extend, of course, to general knowledge about a field of law, legal interpretations, economic sectors, and the like that a lawyer learns in the course of his or her professional career. See D.C. Bar Ethics Op. 175 (1986) (consecutive representation of potentially adverse clients and use of legal theories developed at expense of the former client).

In considering conflicts of interest, Opinion 308 relies primarily on Rule 1.9, which requires a government lawyer, when contemplating assignment to a matter, to determine whether the matter is the same as or substantially related to the representation that the lawyer provided to a former private sector client. The fact that an assignment may result in an outcome detrimental to a former client is not of itself a basis for precluding the government lawyer from accepting the assignment. In that regard the opinion cites to both Comment [2] to Rule 1.9 and Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984), which provide guidance on application of the “substantial relationship test.”

Opinion 308 also addresses questions that are often asked about “accommodating” the government lawyer who is conflicted out of a representation and whether screening is available in this situation. By comparison, if a lawyer in private practice is disqualified because of a former-client conflict, the disqualification of the one firm lawyer would ordinarily be imputed to the entire firm, barring all firm lawyers from accepting the representation. Rule 1.10(a). Imputation, however, does not apply to a government agency.See Rule 1.10, Comment [1]. Thus, other lawyers who practice with a personally disqualified government lawyer are not themselves disqualified from the representation. The disqualification, applied to lawyers moving from government to private practice, is strictly “personal to the individual lawyer.” See Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering 351 (2d ed. 1990) (further noting that if imputation were applied to government, “the government would either have to forgo certain enforcement matters or hire lawyers who had never been in private practice, or who had represented only clients who would never be adverse to the governmental unit hiring the lawyer”).

Screening a disqualified government lawyer is not expressly required or available by Rule 1.9 or Rule 1.10. Rather Opinion 308 suggests that voluntary screening measures that “effectively insulate the lawyer from ongoing contact with the matter from which she is disqualified should be considered.” See D.C. Bar Ethics Op. 279 (1998).

The opinion ends with a reminder to government lawyers of the duties owed to their new government clients, and notes that the D.C. Rules of Professional Conduct are only one piece of a substantial body of authority governing the ethical conduct of government lawyers.

Ethics counsel Ernest T. Lindberg and Susan D. Gilbert are available for telephone inquiries at 202-737-4700, ext. 231 and 232.