MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-19
REVISED - DECEMBER 14, 1999
Your letter of October 6, 1999, and your follow-up letters of October 11, 1999 and October 15, 1999, were considered by the Maryland State Bar Ethics Committee at its meetings on October 20, 1999 and December 1, 1999, and I have been assigned by the Committee to respond to your inquiries.
You have advised us that you are the former County Attorney of one of Maryland's counties. You have asked us if the Rules of Professional Conduct prevent you from representing a physical therapist, operating a home occupation, in any or all of the following lobbying, zoning and litigation matters.
1. Lobbying assistance relevant to the adoption of a new county-wide zoning ordinance.
2. Application for a revised conditional use permit, and any writ of mandamus or other appropriate court proceedings as may be necessary to compel governmental compliance with applicable laws.
3. An action for civil rights violations or other appropriate remedies associated with a1994 conditional use permit or its enforcement.
4. Defense of your client in any ordinance enforcement action that may be filed by the County government.
You have also asked us if Rule 1.10, regarding imputed disqualification, applies to government attorneys either generally or to supervising attorneys whose subordinates would be disqualified by the subordinate's personal and substantial involvement. You have asked that question because an Assistant County Attorney, whom you supervised, participated in representing the County in a 1998 public hearing before the County Board of Zoning Appeals in which your prospective client sought a ruling to expand her physical therapy practice.
In your inquiry, you have provided us the following facts, which we will paraphrase below:
I. YOUR ROLE AS COUNTY ATTORNEY
You were employed as County Attorney for the involved County on July 31, 1995 and continued to serve in that position until April 3, 1999 at which point you left the Office of County Attorney, although you continued to be paid by the County until July 31, 1999. You have advised us that you were not involved in representing the County in any way during the period between April and the end of July. You have also advised us that during the period between August, 1995 and April, 1999, your office handled more than 2300 documented legal projects, a number you derived from an itemized worklist that you began using in January, 1996.
Between August, 1995 and December, 1996, you were the only attorney representing the County in the County Attorney's Office and you handled planning and zoning matters for which your advice was sought by County officials. The County employed an Assistant County Attorney to work with you in December, 1996 and, following that date, you handled most of the Planning Commission matters and your Assistant handled most Board of Zoning Appeals matters for which advice was sought from your office. We understand from your inquiry that the matters about which your office was consulted represented a small percent of all of the matters handled by the respective body.
You have further advised us that none of the members of the Board of County Commissioners who appointed you were re-elected in 1998, as a consequence of which, in March 1999, the newly elected Board of County Commissioners advised you that your employment contract was not to be renewed. As noted, you left your position on April 3, 1999.
During your tenure as County Attorney, you participated in the process of adopting a new comprehensive land use plan. The Board of County Commissioners adopted the Comprehensive Plan on the day that they announced your departure in March, 1999.
At the time you left office on April 3, 1999, the County was considering amending its Zoning Ordinance, although proposed amendments to the Zoning Ordinance had not yet been drafted. That draft was not prepared until September, 1999, although prior to your departure, you were involved in drafting the request for proposals for consultants to assist in drafting the necessary ordinance amendments.
You further have advised us that during your service as County Attorney, you identified deficiencies in the Zoning Ordinance on at least a dozen occasions and recommended amendments to the County Commissioners in writing. Only one of your recommended amendments was adopted.
You have also advised us that during your tenure as County Attorney, you did identify deficiencies in the conditional use permitting process and that you had prepared new rules of procedure regarding conditional use permits for the Board of Zoning Appeals which it adopted and continues to use. You also state that you gave advice to the Board of County Commissioners, Board of Zoning Appeals, Planning Commission and County employees regarding lawful zoning procedures and the imposition of lawful conditions.
Finally, you have advised us that you often counseled with the Planning and Zoning officials in the County regarding the civil rights liability that could be created from improper administration of the zoning laws. With regard to potential civil rights liability, you advise us that such potential exposure was addressed with the newly elected Board of County Commissioners, both verbally and in individual conversations and then in a report you wrote.
In your supplemental submission of October 11, 1999, you have advised us that during your tenure as County Attorney, you counseled with the Planning Director of the County on zoning law issues.
II. FACTS RELATING TO THE CLIENT'S CURRENT
REQUEST FOR REPRESENTATION
Your inquiry is prompted by a request from the owner of a physical therapy business to represent her in connection with potential lobbying for a new County wide zoning ordinance and in connection with potential litigation remedies that may exist against the County. You have advised us that the client first approached you to represent her in September, 1999, some five or six months after you left the employ of the County and over a month after you ceased to be paid by the County. You have also advised us, however, that in 1994, the client, appearingpro se, requested a conditional use permit from the County Board of Zoning Appeals to construct and operate a physical therapy home occupation in a portion of the County which was zoned for rural preservation. Out-patient health care facilities were then and still are permitted by right in this zone, subject to issuance of a permit imposing conditions based upon the particular circumstances of the specific property involved in the intended use. The client, in fact, was granted a permit in June of 1994, which, you assert, "imposed an arbitrary and capricious limit upon the number of patients." The client did not then appeal from this limitation.
In 1998, the client, represented by other counsel, submitted an application for both an expansion of her permitted conditional use and/or a variance from a requirement under the Chesapeake Bay critical area law. The client sought to add office space, additional therapy work area and additional parking area. Those requests were denied and no appeal was filed.
In 1999 (although we do not see the exact date in your submissions), the client and other citizens supporting her, appeared before the Board of County Commissioners and requested that the Board take action in the pending comprehensive rezoning and comprehensive revision of the Zoning Ordinance to allow the requested expansion of the client's permitted use. The Planning Director with whom you consulted when you served as County Attorney will be involved in the comprehensive rezoning process.
You have advised us that while your request has been pending before us, you have limited your representation of the client to providing advice (which you characterize as lobbying advice) in connection with the draft Zoning Ordinance. You have advised us further that you have told the client that you cannot represent her ethically in regard to the question of the proprietary of the application of the Guidelines to her.
III. ANALYSIS
Having presented these very detailed submissions to us, you have asked us if you may represent the client in the types of matters reflected on the first page of this letter. Having examined your inquiry in light of prior opinions we have authored concerning successive government and private employment, this Committee feels constrained to advise you that you should not involve yourself in the representation of the client except, potentially, in connection with ongoing lobbying concerning the draft Zoning Ordinance. We draw your attention, in particular, to Ethics Docket 94-15, which involved an inquiry by a former City Solicitorconcerning the representation of a client for an injury she suffered during the period of time that the attorney served as City Solicitor. In that opinion, we concluded that the attorney could not be involved in the representation of the client even though the City Solicitor could not say that he had ever seen or been privy to a report, existing during his tenure, which concerned the incident resulting in the client's injury.
Because the Committee continues to believe in the wisdom of the legal analysis contained in our Opinion, Ethics Docket 94-15, we have set forth below that analysis, which assists us evaluate the dilemmas facing you as a former County Attorney. So that this opinion is self-contained, we have set forth that analysis on its entirety.
Prior to January 1, 1987, DR 9-101(B) of the Code of Professional Responsibility established the following ethical constraints upon former government attorneys: "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." ABA Code of Professional Responsibility DR 9-101(B) (emphasis added). Under DR 9-101(B), the term "substantial responsibility' was considered by this Committee "to encompass those situations wherein an attorney has been clothed with supervisory authority, whether exercised or not, in the handling of controversies or administrative matters over which another of his staff has had primary responsibility." See Opinion 79-74.
Various policy considerations were offered in support of the proscriptions contained in DR 9-101(B) , including avoiding the apparent treachery of switching sides, safeguarding confidential governmental information, discouraging government lawyers from handling particular assignments in such a way as to encourage their own future employment after leaving government service, and, in general, avoiding the appearance of impropriety.See ABA Formal Opinion 342 (1975).
On the other hand, those who examined DR 9-101(B) cautioned that the rule should not be interpreted so broadly as to preclude or limit substantially a lawyer's employment after he or she departed from government service.1 As a consequence, the term "substantial responsibility" was generally deemed to involve:
a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transaction or facts in question. Thus, being the chief official in some vast office or organization does not ipso facto give that government official or employee the 'substantial responsibility' contemplated by the rule in regard to all the minutiae of facts lodged within the office. Yet it is not necessary that the public employee or official shall have personally and in a substantial matter investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding the matter.
ABA Formal Opinion 342 at 10-11. (Emphasis added) (footnotes omitted).
Since the adoption of the Maryland Rules of Professional Conduct, which became effective January 1, 1987, Rule 1.11 of Rules of Professional Conduct has required the following of former government attorneys:
(a) 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. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a manner unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
Maryland Rules of Professional Conduct Rule 1.1 1(a)-(b) (emphasis added).
In comparing the language of Rule 1. 11 with that of DR 9101(B), it is clear that Rule 1.11 eliminates the "appearance of impropriety" test of DR 9-101(B) and "sets forth more specifically the circumstances in which concern for public confidence in government necessitates disqualification of a lawyer." Law. Man. on Prof. Conduct (ABAIBNA) 91:4008 (July 23, 1986). Thus, under Rule 1.11, a former government attorney must have "personally and substantially" worked on the matter in order to be disqualified from working on the case.
However, in this Committee's view, this change in language was intended to mitigate harsh results which evolved from an overbroad interpretation of the language "substantial responsibility" under DR 9-101(B), see,e.g., City of Cleveland v. Cleveland Electric Illuminating Co., 440 F. Supp. 193 (N.D. Ohio), aff'd without op., 573 F.2d 1310 (6th Cir. 1977), cert. denied, 435 U.S. 996 (1978), and was intended to articulate a standard comporting with the ABA interpretation of the language "substantial responsibility" in its Formal Opinion 342 quoted above.2
Hence, in evaluating whether you may represent the prospective client, this Committee finds guidance in the language used in the ABA opinion quoted above and also finds persuasive the analysis contained in certain well reasoned decisions addressing motions to disqualify former government lawyers from involvement in subsequent civil litigation. One case, in that regard, is particularly instructive. In that case, LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), the Court addressed a motion to disqualify a law firm which employed a former Lake County Assistant State's Attorney as an Associate. In evaluating the Motion, the Court applied what it referred to as the "substantial relationship test" "to give judicial content to the obligations imposed upon attorneys by the professional canons governing their conduct." LaSalle National Bank, 703 F.2d at 255.
In that case, the Court found that there was a substantial relationship between the matter -brought by the private law firm and the Assistant State's Attorney's former representation of Lake County, even though the Assistant State's Attorney (during his public employment) was not involved in the precise subject of the litigation, relying, in part, upon the fact that the Assistant State's Attorney was the "principal legal advisor with respect to all civil matters, supervising an office with only six attorneys in it. . ." and ". . .. was clearly privy to a substantial amount of discussion and strategic thinking [about sewage agreements, the subject matter of the civil litigation] . . ."Id. 703 F.2d at256.3
The Court also noted that:
The substantial relationship standard does not require that a party moving to disqualify point to or reveal a particular piece of confidential information which the attorney challenged actually received; its receipt will be presumed in circumstances which make it a likely possibility. Id. at 256 (citations omitted).
When evaluating your inquiries and the detailed set of facts you have provided in light of these authorities, this Committee feels constrained to conclude that except potentially with respect to lobbying activities as you have described them, you "personally and substantially" worked on matters involving the prospective client while involved in the position of County Attorney and, as such, should not represent the client in any litigation or other matters about which you have made inquiry. We have reached this conclusion because:
(a) During the period between 1995 and the Spring of 1999, during which time your client sought to amend her conditional use permit before the Board of Zoning Appeals, you were the County Attorney and, as such, were the person with primary responsibility for handling the County's matters;
(b) Although you do not recall any personal involvement in the case she brought in 1998, your subordinate was involved in that matter and, as you have described, appears to have participated in authoring an opinion denying her request; and
(c) In your tenure as County Attorney, you provided extensive advice to County officials, including the Planning Director, as to the concerns you had in the handling of zoning and conditional use requests, which bears upon the advice the client is seeking from you now. Because of the scope of your involvement in discussions with County officials, we do not believe it is appropriate for you to involve yourself in any litigation which would require the development or presentation of facts concerning past activities.
In addition to its concern under Rule 1.11 of the Maryland Rules of Professional Conduct, the Committee also is concerned that your continuing involvement in anything other than lobbying as to future changes in the Zoning Ordinance may run afoul of Rule 1.9 of the Maryland Rules of Professional Conduct. That rule prohibits a lawyer, who formally represented a client in a matter, from representing another person in the same or substantially related matter in which the latter person's interest are materially adverse to the interests of the former client, unless the former client consents after consultation. In this case, it is clear that you are asking us if you can represent the interests of a client, whose interests are materially adverse to the interests of the County. Many of the facts that would bear upon that representation, unquestionably, relate to the time period during which you served as County Attorney, including the denial of the conditional use permit amendment in 1998. As such, this Committee is of the view that representation in all but the lobbying activities are "substantially related" to advice and counseling you provided to the County during your tenure a County Attorney.4
In addition, and as was the case in our analysis in Ethics Docket 94-15, this Committee is concerned that your representation of the client in all but lobbying activities could result in the inadvertent disclosure of confidential information learned while in the employ of the County, which would thereby put you in violation of Rule 1.6 of the Rules of Professional Conduct. That rule, in relevant part, states as follows:
"A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . .
Maryland Rules of Professional Conduct Rule 1.6(a).
The duty of confidentiality continues after a client/lawyer relationship is terminated (See Ethics Docket 90-18). In addition, the comment to Rule 1.11 also makes clear that private clients should not have an unfair advantage by reason of access to confidential government information obtainable only through the lawyer's governmental service.
In light of the foregoing, this Committee does not believe that you can represent this client in any matter where your knowledge and awareness of confidential information concerning advice you provided to County officials can serve to the advantage of the client and compromise the interests of the County, your former client.
This brings us to the issue of your lobbying regarding proposed changes in the Zoning Ordinance. Because advice you are providing to the client is prospective, i.e., involves a draft of proposed changes to the Zoning Ordinance, to be adopted following the amendment of the Comprehensive Plan, we cannot conclude that your service as the former County Attorney necessarily would disqualify you from representation of the client in providing advice concerning the client's right to request changes to the Zoning Ordinance. However, in our view, you do need to evaluate if you can effectively represent the client now and in the future if you are limited in your representation by reason of your past service as County Attorney.
We recognize that Rule 1.2(c) provides that a lawyer may limit the objectives of his or her representation if the client consents after consultation. In this case, we feel it is incumbent upon you to bring to your client's attention the limitations in your representation as detailed above, and permit the client, under those circumstances, to make an informed judgment as to whether she can or should continue to employ your services recognizing these limitations. You, independently, in our view, should evaluate if you think you can effectively represent the client with an understanding of the concerns we have expressed above.
where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.1 1(c)(l). The individual lawyer involved is bound by the rules generally, including Rules 1.6, 1.7 and 1.9."
We trust that the foregoing is helpful to you in your analysis of your ethical obligations and thank you for your inquiry to this Committee.
1 Although not specifically purporting to analyze DR 9-101(B), various courts recognized that motions to disqualify former government attorneys and the firms with whom they become associated could be misused as a weapon to interfere with the clients' ability to select counsel of their choosing. Panduit Corp. v. All States PlasticMfg. Co., 744 F.2d 1564, 1577 (Fed. Cir., 1984); Whiting Corp. v. White Machinery Corp.. 567 F.2d 713, 715 (7th Cir., 1977); and General Electric Co. v. Industra Products, Inc.. 683 F. Supp. 1254, 1259 (N.D. Ind. 1989).
2 The language in the current rule also comports with the language contained in 18 U. S. C. §207 (a) (1) (B) containing restrictions on government employees (including lawyers) in matters in which the employees "participated personally and substantially. . ."
3This Committee recognizes that one could distinguish between the standards which govern under the rules of ethics and the standards which may be applied by the courts in a litigation context but believes that cases such as LaSalle National Bank do provide guidance as to a lawyer's ethical duties, particularly since case authorities teach us that attorney disqualification is a "prophylactic device", which should not be imposed unless "absolutely necessary".See, e.g., Panduit Corp. v. All States Plastic Manufacturing Co., 744 F. 2d 1564, 1581 (Fed. Cir. 1983) and General Electric Co. v. Industra Products, Inc., 683 F. Supp. 1254, 1260 (N.D. Ind.1988).
4 Because we believe the concerns under 1.9 are dispositive, we do not feel it is necessary to reach your question about imputed disqualification under Rule 1.10. However, we do draw your attention to the comments under Rule 1.10, which state as follows:
"Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b);