Ethics Opinion 285
Nonlawyer Former Government Employee Working for a Lawyer
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 Third Persons)
- Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants)
- Rule 8.4 (Misconduct)
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).
Although rules 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 explains:
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 to secretary).
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
Adopted: November 17, 1998
1. The 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.
2. We do 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).
3. Similarly, 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.
4. Rule 1.6(b) 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.”
5. In many cases brought to our attention by the inquirer, disqualification or screening was required only because the nonlawyer had worked directly with lawyers in his 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; nonlawyer 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. 1037 (W.D. 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).