Nonlawyer Former Government Employee Working for a Lawyer
who employs a nonlawyer former government employee must screen that person
from matters that are the same as, or substantially related to, matters
on which the nonlawyer assisted government lawyers in representing a
government client. In addition, Rules 4.4 and 8.4 preclude the lawyer
from inducing the former government employee to reveal certain other
types of confidential information.
- Rule 1.11 (Successive
Government and Private Employment)
- Rule 4.4 (Respect for Rights of
- Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants)
- Rule 8.4
An ethics official in a department of
the federal government inquires about "the application of the D.C.
Rules of Professional Conduct to law firms that employ or use nonlawyers
who are former employees of the Department. . . ." A "principal
concern is the risk that confidential government information may be disclosed
or abused," particularly when former government employees work as
consultants in legal matters related to their former government duties.
In posing this general concern, the inquirer invites comment on four
different scenarios: (1) the nonlawyer worked directly with government
attorneys on a matter in which the law firm is now involved; (2) the
former employee had no direct contact with government lawyers but was
exposed to confidential government information; (3) the government is
not a party to a case but still may be harmed by the abuse of confidential
government information; and (4) the consultant formerly participated
in government policy making.
We emphasize at the outset that
the D.C. Rules of Professional Conduct have no direct application to
the conduct of nonlawyers.1 In some instances, however, the Rules require
lawyers to be responsible for the conduct of their nonlawyer assistants.
For example, Rule 5.3, in both subsections (a) and (b), requires a lawyer
to make reasonable efforts to ensure "that the [nonlawyer’s] conduct
is compatible with the professional obligations of the lawyer." Moreover,
under certain circumstances, a lawyer will be responsible for the conduct
of a nonlawyer employee or associate that would be a violation of the
rules of professional conduct if engaged in by a lawyer. Rule 5.3(c).
Rule 8.4(a) also provides that it is professional misconduct for a lawyer
to "violate or attempt to violate the rules of professional conduct
. . . through the acts of another."
Thus the professional obligations
of lawyers provide a necessary background for our analysis. Although
there is nothing improper per se about a lawyer communicating with a
former employee of an opponent, see ABA Formal Op. 91-359 (1991), it
is important to consider the rules dealing with "side-switching" and
imputed disqualification of lawyers. The government lawyer who moves
to the private sector is precluded from accepting employment "in
connection with a matter which is the same as, or substantially related
to, a matter in which the lawyer participated personally and substantially
as a public officer or employee," Rule 1.11(a), and he must be "screened" from
any such matters being handled by his law firm. Rule 1.11(c). See generally
D.C. Bar Legal Ethics Comm. Opinion No. 279 (1998) (discussing availability
of screening as a cure for imputed disqualification).
requiring screening do not apply by their own terms to nonlawyers, screening
has often been required when nonlawyers move from one law firm to another.2 For example, the ABA Committee on Ethics and Professional Responsibility
considered the ethical issues presented when a paralegal who worked on
litigation matters for one law firm was hired by an opposing law firm
and concluded that screening would be adequate to avoid imputed disqualification
of the new employer. ABA Informal Op. 88-1526 (1988). The official synopsis
A law firm that employs a nonlawyer who formerly was employed
by another firm may continue representing clients whose interests conflict
with the interests of clients of the former employer on whose matters
the nonlawyer has worked, as long as the employing firm screens the nonlawyer
from information about or participating in matters involving those clients
and strictly adheres to the screening process described in this opinion
and as long as no information relating to the representation of the clients
of the former employer is revealed by the nonlawyer to any person in
the employing firm. In addition, the nonlawyer’s former employer must
admonish the nonlawyer against revelation of information relating to
the representation of clients of the former employer.
Looking for guidance
to Model Rule 5.3’s requirement that supervising lawyers make reasonable
efforts to ensure that the conduct of their nonlawyer employees "is
compatible with the professional obligations of the lawyer," the
ABA Committee nevertheless recognized that "[i]t is important that
nonlawyer employees have as much mobility in employment opportunity as
possible consistent with the protection of clients’ interests. . . .
Accordingly, any restrictions on the nonlawyer’s employment should be
held to the minimum necessary to protect confidentiality of client information." The
Committee noted as well that the standards for screening adopted in its
opinion "apply equally to all nonlawyer personnel in a law firm
who have access to material information relating to the representation
of clients and extend also to agents who technically may be independent
contractors, such as investigators."3
In Opinion No. 227 our committee
also addressed the case of a paralegal who moved from one law firm to
another. The new firm was handling a matter "substantially related" to
one on which the paralegal had worked at the former firm. Applying Rule
5.3, we concluded that the new firm must not exploit any confidences
or secrets4 that the paralegal had obtained during former employment
but could avoid imputed disqualification by "screening" the
paralegal from that matter. "In the case of migratory nonlawyers
generally, we approve[d] the pro-screening approach reflected in" ABA
Informal Op. 88- 1526 (1988).
Many other legal ethics committees have also required
screening when nonlawyers move from one law firm to another. See, e.g.,
Prof. Resp. Comm., Chicago Bar Ass’n, Op. 93-5 (1993) (screening applied
to secretary who moved from one law firm to another); Michigan Ethics
Op. RI-284 (1996)(screening applied to secretary); Michigan Ethics Op.
RI-115 (1992) (screening applied to secretary); New Jersey S. Ct. Advisory
Comm. on Prof. Ethics Op. 665 (1992) (screening applied to paralegal);
North Carolina Ethics Op. RPC 176 (1994) (screening applied to paralegal);
South Carolina Bar Ethics Advisory Op. 93-29 (1993) (screening applied
We similarly conclude that a screen must be used
when the nonlawyer former government employee worked directly with government
attorneys on a matter which is the same as, or is substantially related
to, a matter in which his law firm employer is now involved. However,
this conclusion is based on the fact that the nonlawyer worked directly
with government attorneys who were representing a client. The obligation
to preserve client confidences and secrets has no application if there
is no underlying lawyer-client relationship. Thus, Rule 1.6 does not
govern the situation described by the inquirer where the former employee
did not work with government lawyers, but was otherwise exposed during
his employment to confidential government information.5
Nor is there
any bar to employment (or obligation of screening) under the Rules when
the former government employee participated in government policy making.
It is quite common for lawyers and nonlawyers alike to use expertise
acquired in government employment to enhance their marketability in the
private sector. "The making of rules of general applicability and
the establishment of general policy will ordinarily not be a ’matter’
within the meaning of Rule 1.11." D.C. Rules of Professional Conduct,
Rule 1.11, Comment . Similarly, matters will be deemed "substantially
related" "only if specific information (as distinct from general
agency expertise or contacts) that a former government lawyer may have
had access to in one matter is likely to be useful in a subsequent matter. . . ." Brown v. District of Columbia Board of Zoning Adjustment,
486 A.2d 37, 48 (D.C. 1984) (en banc) (emphasis added). Thus, neither
a lawyer nor a nonlawyer will be disqualified simply because he or she
participated in government policy making or is intimately familiar with
the workings of a government agency.
In limited circumstances, however,
the Rules of Professional Conduct may preclude the law firm that currently
employs the nonlawyer former government employee from inducing him or
her to violate obligations of confidentiality not derived from assisting
government lawyers in representing a client. Rule 4.4 provides in pertinent
part that, "[i]n representing a client, a lawyer shall not . . .
use methods of obtaining evidence that violate the legal rights of [a
third] person." We have not previously interpreted this provision,
and there is no helpful commentary in our rules, but there is some explanation
of its scope in opinions from other jurisdictions.
For example, in Formal
Op. 91-359 (1991), the ABA Committee on Ethics and Professional Responsibility
concluded that Rule 4.2 does not preclude contact with former employees
of an opposing corporate party. The committee cautioned, however, that
the attorney "must be careful not to seek to induce the former employee
to violate the privilege attaching to attorney-client communications
to the extent his or her communications as a former employee with his
or her former employee’s counsel are protected by the privilege . . .
. Such an attempt could violate Rule 4.4 (requiring respect for the rights
of third persons)." See also ABA Formal Op. 97-408, n.14 (1997)
("Gaining from a former government employee information that the
lawyer knows is legally protected from disclosure for use in litigation
nevertheless may violate Model Rules 4.4, 8.4(c) and 8.4(d) . . . .");
Conn. Bar Ass’n, Informal Op. 96-4 (1996) (Rule 4.4 precludes lawyer
from reviewing and copying psychiatric records of client’s ex-wife made
confidential by statute); Pa. Bar Ass’n, Informal Op. 93-135 (1993) (Rule
4.4 prohibits lawyer from conducting surreptitious inspection of psychiatric
records of major witness against client; although information would be
very useful in impeaching witness, Pennsylvania caselaw makes such records
absolutely confidential); New Jersey S. Ct. Advisory Comm. on Prof. Ethics,
Op. 680 (1995) (if lawyer had surreptitiously copied confidential documents
in possession of attorneys for adverse party, and items of evidence were
involved, it would constitute a violation of Rule 4.4). While we do not
believe that Rule 4.4 precludes a lawyer from attempting to learn all
information which the government would deem confidential, it does preclude
attempts to induce a present or former employee to reveal information
known to the lawyer to be protected from disclosure by statute or a well-established
common law privilege.
A lawyer must screen a nonlawyer former
government employee from matters the same as, or substantially related
to, matters on which he or she assisted government lawyers in representing
a client. On the other hand, the nonlawyer will not be disqualified from
working on a matter simply because he or she is intimately familiar with
the workings of a government agency or participated in relevant government
policy making. Rules 4.4 and 8.4 preclude attempts to induce the former
government employee to reveal information made confidential by statute
or a well-established common law privilege.
Inquiry No. 97-2-8
November 18, 1998
- primary restrictions on former officers and employees
of the federal government are found in the Ethics in Government Act,
see, e.g., 18 U.S.C. § 207, which applies to lawyers and nonlawyers
alike. This committee has no authority in interpret the requirements
of this law and similar laws.
- not address the related issues that
would be presented if the former government employee were now a lawyer.
See D.C. Rules of Professional Conduct 1.6(g) and 1.10(b).
the conclusions we reach in this opinion do not depend on there being
an employer/employee relationship between the nonlawyer and the lawyer,
but apply equally when the nonlawyer former government employee has
been hired as a consultant by a lawyer opposing the government.
explains that the term “confidence” refers to information
protected by the attorney-client privilege. The term “secret” is
defined much more broadly to refer to “other information gained
in the professional relationship that the client has requested be held
inviolate, or the disclosure of which would be embarrassing, or would
be likely to be detrimental, to the client.”
- cases brought
to our attention by the inquirer, disqualification or screening was
required only because the nonlawyer had worked directly with lawyers
or her former employment. See, e.g., Camden v. State of Maryland, 910
F. Supp. 1115 (D. Md. 1996) (lawyers disqualified because they “had
listened in at the legal confessional”; former government employee
had been extensively exposed to confidential client information of
the other interested party); MMR/Wallace Power & Industrial v.
Thames Assoc., 764 F. Supp. 712 (D. Conn. 1991) (attorneys disqualified;
who had consulted on litigation, had extensive contact with plaintiff’s
counsel, and had access to confidential litigation materials switched
sides and became a trial consultant for defendants); Kapco Mfg. Co.
v. C & O Enter., 637 F. Supp. 1231 (N.D. Ill. 1985) (disqualification
denied; law firm secretary/office manager who moved to opposing law
firm had been effectively screened); Williams v. TWA, 588 F. Supp.
Mo. 1984) (plaintiff’s law firm disqualified because they also
represented a client who, while employed by defendant, assisted one
of defendant’s attorneys with the defense of plaintiffs’ claims
and had access to confidential information about these cases).