MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-08
Representation of Client Challenging Statute Drafted and Defended while Assisted Attorney General
Attorney A was employed as an Assistant Attorney General of the State of Maryland for approximately seven years, ending in as legal counsel to a task force appointed to establish a program to study a particular problem of the State (the "program"). Attorney A studied the legal problems of the proposed program and the portions of the report of the task force dealing with the potential legal issues. Subsequently, legislation was introduced in the 1978 General Assembly to establish the program. Attorney A worked closely with the legislators and was deeply and broadly involved in the legislation that finally passed.
Subsequent to the passage of the legislation, a lawsuit was filed challenging the constitutionality of the program established by the legislation. Attorney A defended the State in that action which in late 1978 was dismissed without prejudice by the filing of a Stipulation for Dismissal.
The following year Attorney A assumed other duties in the Attorney General's Office and no longer was involved actively with the program, although he answered questions from time to time. In 1983 he resigned from the Attorney General's Office and has subsequently joined your firm. Since his resignation from the Attorney General's Office, the Supreme Court has rendered a decision which could have an impact on the program.
Recently, Attorney A and your firm have been asked to challenge the constitutionality of the program. The prospective client was not a party to and was not connected with the prior litigation in which Attorney A defended the constitutionality of the program.
You have inquired as to whether Attorney A is disqualified from representing the potential client under the circumstance. In making your inquiry, you refer to Rule 1.11 of the Maryland Rules of Professional Conduct, ABA Ethics Opinion 342 and the opinions of this committee set forth in Docket Numbers 79-47 and 82-28.
Rule 1.11(a) of the Maryland Rules of Professional Conduct states in part:
Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.
The question is whether, under the facts presented, the Assistance in the establishment of the program and the defense of the program from a challenge to its constitutionality was "a matter" which will prohibit Attorney A from subsequently challenging its constitutionality. It is opinion the of this Committee that it was not, and Attorney A and his firm are not prohibited per se by Rule 1.11(a) from representing a client challenging the constitutionality of the program. However, such representation may be restricted by Rules 1.6 and 1.7.
The definition of the term "matter" includes certain proceedings involving a specific party or parties and matter "covered by the conflict of interest rules of the appropriate government agency." The facts presented indicate that Attorney A did not work on anything involving the client he now seeks to represent, and there is no indication that there is a conflict of interest rule of the Attorney General's Office involved. However, Rule 1.11(d) indicates that the term "matter" includes other situations not specifically defined but does not preclude such other situations. The comment to Rule 1.11 does not add anything to the definition of the word "matter", but it does make it clear that the purpose of the Rule is to address the "revolving door" problem in which a "risk exists that power of discretion vested in a public authority might be used for the special benefit of the private client." However, it further states that the rule "should not be so restrictive as to inhibit transfer of employment to and from government."
The Comment to Rule 1.9 is helpful in defining the work "matter." Rule 1.9 prohibits a lawyer who formally represented a client from representing another person "in the same or substantially related matter." The Committee is of the opinion that the two Rules have been promulgated to address a common question -- conflict of interest. Therefore, the Comment to Rule 1.9 is useful in defining the scope of "matter" for the purpose of Rule 1.11. The Comment to Rule 1.9 indicates that it depends on the facts of a particular situation and can be question of degree. It then states:
When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with a material adverse interest clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.
The Committee is of the opinion that the fact situation presented by you is more like the latter.
ABA Opinion 342, referenced by you, indicates that "matter" contemplates a "discrete and isolatable transaction or set of transactions between identifiable parties." It specially states that "work as a government employee in drafting, enforcing, or interpreting government or agency procedures, regulati