(b) If a lawyer is required to decline or to withdraw from employment under paragraph (a) on account of a personal and substantial participation in a matter, no partner or associate of that lawyer, or lawyer with an of counsel relationship to that lawyer, may knowingly accept or continue such employment except as provided in paragraphs (c) and (d) below. The disqualification of such other lawyers does not apply if the sole form of participation was as a judicial law clerk.
(c) The prohibition stated in paragraph (b) shall not apply if the personally disqualified lawyer is timely screened from any form of participation in the matter or representation as the case may be, and from sharing in any fees resulting therefrom, and if the requirements of paragraphs (d) and (e) are satisfied.
(d) Except as provided in paragraph (e), when any of counsel, lawyer, partner, or associate of a lawyer personally disqualified under paragraph (a) accepts employment in connection with a matter giving rise to the personal disqualification, the following notifications shall be required:
(1) The personally disqualified lawyer shall submit to the public department or agency by which the lawyer was formerly employed and serve on each other party to any pertinent proceeding a signed document attesting that during the period of disqualification the personally disqualified lawyer will not participate in any manner in the matter or the representation, will not discuss the matter or the representation with any partner, associate, or of counsel lawyer, and will not share in any fees for the matter or the representation.
(2) At least one affiliated lawyer shall submit to the same department or agency and serve on the same parties a signed document attesting that all affiliated lawyers are aware of the requirement that the personally disqualified lawyer be screened from participating in or discussing the matter or the representation and describing the procedures being taken to screen the personally disqualified lawyer.
(e) If a client requests in writing that the fact and subject matter of a representation subject to paragraph (d) not be disclosed by submitting the signed statements referred to in paragraph (d), such statements shall be prepared concurrently with undertaking the representation and filed with Bar Counsel under seal. If at any time thereafter the fact and subject matter of the representation are disclosed to the public or become a part of the public record, the signed statements previously prepared shall be promptly submitted as required by paragraph (d).
(f) Signed documents filed pursuant to paragraph (d) shall be available to the public, except to the extent that a lawyer submitting a signed document demonstrates to the satisfaction of the public department or agency upon which such documents are served that public disclosure is inconsistent with Rule 1.6 or other applicable law.
(g) This rule applies to any matter involving a specific party or parties.
(h) A lawyer who participates in a program of temporary service to the Office of the District of Columbia Attorney General of the kind described in Rule 1.10(e) shall be treated as having served as a public officer or employee for purposes of paragraph (a), and the provisions of paragraphs (b)-(e) shall apply to the lawyer and to lawyers affiliated with the lawyer.
Comment
[1] This rule deals with lawyers who leave public
office and enter other employment. It applies to judges and their law
clerks as well as to lawyers who act in other capacities. It is a counterpart
of Rule 1.9, as applied to an individual former government lawyer, and
of Rule 1.10, as applied to a law firm.
[2] A lawyer representing a government agency, whether
employed or specially retained by the government, is subject to the
Rules of Professional Conduct, including the prohibition against representing
adverse interests stated in Rule 1.7 and the protections afforded former
clients in Rule 1.9. In addition, such a lawyer is subject to this Rule
1.11 and to statutes and government regulations concerning conflict
of interest. In the District of Columbia, where there are many lawyers
for the federal and D.C. governments and their agencies, a number of
whom are constantly leaving government and accepting other employment,
particular heed must be paid to the federal conflict-of-interest statutes.
See, e.g., 18 U.S.C. Chapter 11 and regulations and opinions
thereunder.
[3] Rule 1.11, in paragraph (a), flatly forbids a
lawyer to accept other employment in a matter in which the lawyer participated
personally and substantially as a public officer or employee; participation
specifically includes acting on a matter in a judicial capacity. Other
than as noted in Comment [10] to this rule, there is no provision for
waiver of the individual lawyer’s disqualification. “Matter”
is defined in paragraph (g) so as to encompass only matters that are
particular to a specific party or parties. 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. When
a lawyer is forbidden by paragraph (a) to accept private employment
in a matter, the partners and associates of that lawyer are likewise
forbidden, by paragraph (b), to accept the employment unless the screening
and disclosure procedures described in paragraphs (c) through (f) are
followed.
[4] The rule forbids lawyers to accept other employment
in connection with matters that are the same as or “substantially
related” to matters in which they participated personally and
substantially while serving as public officers or employees. The leading
case defining “substantially related” matters in the context
of former government employment is Brown v. District of Columbia
Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc). There
the D.C. Court of Appeals, en banc, held that in the “revolving
door” context, a showing that a reasonable person could infer
that, through participation in one matter as a public officer or employee,
the former government lawyer “may have had access to information
legally relevant to, or otherwise useful in” a subsequent representation,
is prima facie evidence that the two matters are substantially
related. If this prima facie showing is made, the former government
lawyer must disprove any ethical impropriety by showing that the lawyer
“could not have gained access to information during the first
representation that might be useful in the later representation.”
Id. at 49-50. In Brown, the Court of Appeals announced the “substantially
related” test after concluding that, under former DR 9-101(B),
see “Revolving Door,” 445 A.2d 615 (D.C. 1982) (en
banc) (per curiam), the term “matter” was intended
to embrace all matters “substantially related” to one another
– a test that originated in Aside-switching@ litigation between
private parties. See Rule 1.9, Comments [2] and [3]; Brown,
486 A.2d at 39-40 n. 1, 41-42 & n. 4. Accordingly, the words
“or substantially related to” in paragraph (a) are an express
statement of the judicial gloss in Brown interpreting “matter.”
[5] Paragraph (a)’s absolute disqualification of a
lawyer from matters in which the lawyer participated personally and
substantially carries forward a policy of avoiding both actual impropriety
and the appearance of impropriety that is expressed in the federal conflict-of-interest
statutes and was expressed in the former Code of Professional Responsibility.
Paragraph (c) requires the screening of a disqualified lawyer from such
a matter as a condition to allowing any lawyers in the disqualified
lawyer’s firm to participate in it. This procedure is permitted
in order to avoid imposing a serious deterrent to lawyers’ entering
public service. Governments have found that they benefit from having
in their service both younger and more experienced lawyers who do not
intend to devote their entire careers to public service. Some lawyers
might not enter into short-term public service if they thought that,
as a result of their active governmental practice, a firm would hesitate
to hire them because of a concern that the entire firm would be disqualified
from matters as a result.
[6] There is no imputed disqualification and consequently
no screening requirement in the case of a judicial law clerk. But such
clerks are subject to a personal obligation not to participate in matters
falling within paragraph (a), since participation by a law clerk is
within the term “judicial or other adjudicative capacity.”
[7] Paragraph (d) imposes a further requirement that
must be met before lawyers affiliated with a disqualified lawyer may
participate in the representation. Except to the extent that the exception
in paragraph (e) is satisfied, both the personally disqualified lawyer
and at least one affiliated lawyer must submit to the agency signed
documents basically stating that the personally disqualified lawyer
will be screened from participation in the matter. The personally disqualified
lawyer must also state that the lawyer will not share in any fees paid
for the representation in question. And the affiliated lawyer must describe
the procedures to be followed to ensure that the personally disqualified
lawyer is effectively screened.
[8] Paragraph (e) makes it clear that the lawyer’s
duty, under Rule 1.6, to maintain client confidences and secrets may
preclude the submission of any notice required by paragraph (d). If
the client requests in writing that the fact and subject matter of the
representation not be disclosed, the lawyer must comply with that request.
If the client makes such a request, the lawyer must abide by the client’s
wishes until such time as the fact and subject matter of the representation
become public through some other means, such as a public filing. Filing
a pleading or making an appearance in a proceeding before a tribunal
constitutes a public filing. Once information concerning the representation
is public, the notifications called for must be made promptly, and the
lawyers involved may not honor a client request not to make the notifications.
If a government agency has adopted rules governing practice before the
agency by former government employees, members of the District of Columbia
Bar are not exempted by Rule 1.11(e) from any additional or more restrictive
notice requirements that the agency may impose. Thus the agency may
require filing of notifications whether or not a client consents. While
the lawyer cannot file a notification that the client has directed the
lawyer not to file, the failure to file in accordance with agency rules
may preclude the lawyer’s representation of the client before
the agency. Such issues are governed by the agency’s rules, and
Rule 1.11(e) is not intended to displace such agency requirements.
[9] Although paragraph (e) prohibits the lawyer from
disclosing the fact and subject matter of the representation when the
client has requested in writing that the information be kept confidential,
the paragraph requires the lawyer to prepare the documents described
in paragraph (d) as soon as the representation commences and to preserve
the documents for possible submission to the agency and parties to any
pertinent proceeding if and when the client does consent to their submission
or the information becomes public.
[10] “Other employment,” as used in paragraph
(a) of this rule, includes the representation of a governmental body
other than an agency of the government by which the lawyer was employed
as a public officer or employee, but in the case of a move from one
government agency to another the prohibition provided in paragraph (a)
may be waived by the government agency with which the lawyer was previously
employed. As used in paragraph (a), it would not be other employment
for a lawyer who has left the employment of a particular government
agency and taken employment with another government agency (e.g., the
Department of Justice) or with a private law firm to continue or accept
representation of the same government agency with which the lawyer was
previously employed.
[11] Paragraph (c) does not prohibit a lawyer from
receiving a salary or partnership share established by prior independent
agreement. It prohibits directly relating the attorney’s compensation
in any way to the fee in the matter in which the lawyer is disqualified.
See D.C. Bar Legal Ethics Committee Opinion 279.
[12] Rule 1.10(e) provides an exception to the general
imputation imposed by Rule 1.10(a) for lawyers assisting the Office
of the District of Columbia Attorney General on a temporary basis. Rule
1.10(e) provides that lawyers providing such temporary assistance are
not considered to be affiliated with their law firm during such periods
of temporary assistance. However, lawyers participating in such temporary
assistance programs have a potential for conflicts of interest or the
abuse of information obtained while participating in such programs.
It is appropriate to subject lawyers participating in temporary assistance
programs to the same rules which paragraphs (a)-(g) impose on former
government employees. Paragraph (h) effects this result.
[13] In addition to ethical concerns, provisions of
conflict of interest statutes or regulations may impose limitations
on the conduct of lawyers while they are providing assistance to the
Office of the District of Columbia Attorney or after they return from
such assignments. See, e.g., 18 U.S.C. §' 207, 208. Compliance
with the Rules of Professional Conduct does not necessarily constitute
compliance with all of the obligations imposed by conflict of interest
statutes or regulations.
