MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-28
Conflicts of Interest: Government Entity – Representation Of Prior Clients Subsequent To Governmental Representation
You state that you became associated with a law firm in January 2000. Prior to that time you were an attorney in the Legal Affairs Department of a municipal Police Department. Your duties included prosecuting police officers at departmental trial board hearings, rendering legal advice to members of the department, including the Police Commissioner, and defending the Commissioner and the Police Department, but not individual officers, against civil lawsuits.
You also state that your law firm has defended members of the Police Department who have been sued civilly for damages arising out of police activity prior to June 2000, and then on occasion you have taught law classes to police trainees at the Police Academy.
You indicate that since entering private practice, potential clients have asked you to represent them in claims against the municipality, and individual members of the Police Department. Specifically, you have been asked to undertake cases involving automobile collisions with police vehicles, and claims against police officers for matters such as false arrest, excessive force, malicious prosecution, and similar torts. You have requested that the Committee advise you as to your ability to undertake representation given your prior government representation.
Rule 1.9 is entitled “Conflict of interest: Former client.” and Rule 1.11 is entitled “Successive government and private employment.” Both of those rules are pertinent to your inquiry.
Rule 1.9 governs a situation involving potential conflicts of interest in adversarial proceedings against a former client. It provides as follows:
“A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”
The comment to Rule 1.9 indicates that after termination of a client-lawyer relationship, a lawyer may not represent another client, except in conformity with this rule. Rule 1.9 contains two constraints. Subsection (a) precludes representation of another person in the same or substantially related matter in which a person’s interest are materially adverse to the interest of the former client, unless the former client consents after consultation. Subsection (b) precludes the use of information relating to the representation to the disadvantage of a former client, except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
The comment to Rule 1.9 indicates that the scope of a “matter” for the purposes of Rule 1.9(a) may depend upon the facts of a particular situation or transaction. The information set forth in your inquiry does not purport to show that you propose representation on substantially related matters. However, it is your responsibility to make that determination on a case-by-case basis.
With respect to the constraints required under 1.9(b), you are not permitted to utilize information relating to your representation to the disadvantage of your former governmental clients, except as permitted by Rule 1.6 or when the information has become generally known. Rule 1.6 is entitled: “Confidentiality of information.” and provides certain guidelines which generally preclude the revelation of confidential information, except for certain specified exceptions. As indicated in the comment to Rule 1.9, information acquired by a lawyer in the course of representing a client may not be subsequently used by the attorney to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Rule 1.11 deals with successive government and private employment. Rule 1.11(a) provides that 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 an employee, unless the appropriate government agency consents after consultation. It also imposes limitations upon representation by a private client of other members of the firm in which the lawyer is associated.
Rule 1.11(b) provides that, 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 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. It also imposes restrictions upon the firm in which a lawyer is associated. See also Rule 1.10 which deals with imputed disqualification.
Rule 1.11(d) defines the word “matter,” and Rule 1.11(e) defines the term “confidential government information.”
The comment to Rule 1.11 states that the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. However, it also recognizes the possibility of unfair advantage accruing to a private client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s government service.
Based upon the general representations which you have made, the Committee does not find any per se prohibition with respect to your representation with respect to you and your firm representing potential clients in claims against the municipality, and individual members of the Police Department. However, it is your responsibility to examine the circumstances of each potential case to determine that there will not be a violation of the above-referenced rules. Additionally, in light of the information which you provided regarding your firm’s prior undertakings on behalf of members of the Police Department, it is also a firm responsibility to ensure that there would not be violation of those rules on a case-by-case basis. In further review of this matter, your attention is directed to the Committee’s prior opinions in Ethics Docket Nos. 94-15 and 2000-19. The Committee’s opinions and an index of them are found on the Bar Association’s web site at www.msba.org.
References: Maryland Rules of Professional Conduct, Rule 1.6 entitled: “Confidentiality of information” Rule 1.9 entitled: “Conflicts of interest: Former client” Rule 1.10 entitled: “Imputed disqualification: General rule” Rule 1.11 entitled: “Successive government and private employment”