D.C. Bar 2020 CONFERENCE - DISCOVER MORE AT https://www.dcbar.org/conference/

Washington Lawyer

Legal Ethics: Whether a Lawyer May Continue to Represent a Client When That Lawyer Represented the Same Client in the Same Matter While Serving as a Public Officer of Employee

From Washington Lawyer, November 2002

(The November 2002 “Speaking of Ethics” column discussed Opinion 313, which addresses the issue(s) of an attorney continuing to represent a client that she served when employed in government. The important criterion of “other employment” is examined, and Opinion 313 is dependent upon Rule 1.11 (Successive Government and Private Employment). )

…(A) criminal defense attorney[,] appointed from the Navy Judge Advocate General’s Corps (“JAG”)[,] …was released from active duty and became an associate with the law firm that presents this inquiry. .. (T)he defendant expressed an interest in having his former JAG lawyer, now a civilian, continue to represent him during various post-trial proceedings, which could include an appeal, a petition to the Board for Correction of Naval Records, and a petition for clemency. The former JAG lawyer, who is a member of the Bar of the District of Columbia requested an opinion from the Navy concerning whether his continued representation of the defendant was prohibited by 18 U.S.C. § 207, and the Navy concluded that it was. …

The law firm requested an opinion from this Committee regarding whether Rule 1.11 of the District of Columbia Rules of Professional Conduct prohibited the firm (as well as the JAG lawyer himself) from representing the defendant. While this request was pending, the United States Court of Appeals for the Armed Forces reversed the position originally articulated by the Navy … [and] …the court concluded that the defendant’s civilian counsel could continue to represent him during further review of the court-martial proceeding.

The Ethics in Government Act, 18 U.S.C. § 207, and Rule 1.11 apply in similar ways to restrict post-Government employment.1 Under Rule 1.11, a lawyer may not “accept other 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.” …

There are, of course, differences between the two requirements: Section 207 is a criminal statute that applies to any former officer or employee of the executive branch of the United States or of the District of Columbia. Rule 1.11, by contrast, is a rule of professional conduct that applies only to members of the D.C. Bar. Moreover, section 207 prohibits covered persons only from knowingly making “any communication to or appearance before” any department or agency of the federal or D.C. governments.3

This is not a typical Rule 1.11 case. Even though the former JAG lawyer was a “public officer or employee” while serving as a lawyer in the military, his “client” in the “matter” was never the United States government. As an appointed defense counsel, his client was, throughout all relevant periods, the defendant. Rule 1.6(j) provides that, “[t]he client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.”…

The District of Columbia Rules of Professional Conduct recognize the unusual situation where a government lawyer’s client is not the government itself but an individual person. Comment [38] to Rule 1.6 recognizes that this relationship presents a special set of confidentiality issues:

Government lawyers may also be assigned to provide an individual with counsel or representation in circumstances that make clear that an obligation of confidentiality runs directly to that individual and that subparagraph (d)(2)(A), not (d)(2)(B), applies.[6] . . . Examples of such representation include representation by a public defender, a government lawyer representing a defendant sued for damages arising out of the performance of the defendant’s government employment, and a military lawyer representing a court-martial defendant.

D.C. Rule 1.6, Comment [38] (emphasis added). …

…(T)he rule governing successive government and private employment is not limited to instances where the former government employee “switches sides.”…

…To trigger the prohibition under Rule 1.11, it is not enough that a former government employee work on a matter which is the same as or substantially related to a matter in which he or she participated personally and substantially as a public officer or employee; the former government employee must first have accepted “other employment in connection with” the same or substantially related matter.9 In our view, under circumstances in which the former government lawyer continues to represent in private practice the same client with whom the lawyer had established an attorney-client relationship while serving as a public officer or employee and in the same or substantially related matter, the former government lawyer has not accepted “other employment” within the meaning of Rule 1.11(a).

The comment to Rule 1.11 makes clear that the identity of the client is a critical question when determining when the former government lawyer has accepted “other employment” …

Furthermore, we perceive no risk that the former JAG lawyer would use confidential information obtained through his public employment for the benefit of a private client. With respect to the same matter in which he represented the individual defendant, he did not have an attorney-client relationship with the United States government. Therefore, any information that he obtained with respect to this matter was information that he would have used for the benefit of his client, regardless of whether he was employed by the Navy or by a private law firm.

In sum, we conclude that, where a government lawyer has, as part of his or her government employment, lawfully established an attorney-client relationship with an individual client, it does not constitute “other employment” for that lawyer to continue to represent the individual client in the same or in a substantially related matter once that lawyer is no longer a government employee.11 Under these unusual circumstances, Rule 1.11 would not prohibit the former government employee from representing the client in the same matter in which that employee participated personally and substantially while working for the government.

Inquiry No. 01-10-22
Adopted: June 2002