MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-13
Successive Private and Government Employment – Conflict Involving Court’s Employee Previously Employed in Private Practice
You advise that after becoming a member of the Maryland bar, you worked for five months, until May 2005, for a lawyer who focuses her practice on collections, foreclosures and landlord/tenant issues. In that regard you drafted and prepared all pleadings and court documents for all tax sale and foreclosure matters and you supervised the work of two paralegals in the office.
In June 2005, you left the firm to work for the Circuit Court for Baltimore City reviewing foreclosure files and tax sale files. You advise that your former employer complained to the Court that it would be a conflict of interest for you to review any case that she has filed with the Circuit Court for Baltimore City since 2004, as you managed all her tax sale and foreclosure matters and would have had knowledge of information contained in virtually all cases handled by her office during the five months you worked for her, including lawsuits that were filed before you became associated with her law office but remained active in the Circuit Court during the pendency of your employment with her. According to the former employer, you were accountable to her to report on the status of every such case on a bi-weekly to monthly basis. In addition, you were responsible for handling all telephone inquiries regarding any of the firm’s tax sale matters. Both you and your former employer appear to agree that, given the volume of cases involved, it would be impractical or impossible to obtain the consent of former clients regarding waiver of any real or potential conflicts of interest. You indicate that you are of the opinion that you should be excluded from working only on cases where you drafted pleadings for you former employer, while your former employer believes that you should be precluded from any involvement in any case she has filed with the Circuit Court.
After a meeting with your former employer, at which you were present, your supervising judge agreed that you should not have any involvement with any matters where a conflict of interest existed, but, pending an opinion from this Committee, the judge declined to impose a sweeping ban on your involvement in cases filed by the former employer where no conflict of interest was found..
You pose two questions: 1) whether you are precluded from reviewing cases filed with the Circuit Court before, during and after your private employment with the lawyer; and 2) whether, when you return to private practice, you would continue to be precluded from working on any case in which your former employer is involved.
Rule 1.6 (Confidentiality of Information) of the Maryland Rules of Professional Conduct for Lawyers requires generally that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation. The rule also provides for several other exceptions, none of which apply to your circumstances (such as preventing the client from committing a criminal act likely to result in death, substantial bodily harm or financial injury, to defend against a controversy between the lawyer and client, or to defend against a disciplinary complaint).
In addition, pursuant to Rule 1.9(b) (Conflict of Interest: Former Client), a lawyer who has formerly represented a client in a matter shall not thereafter 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.
Further, pursuant to Rule 1.11(c) (Successive Government and Private Practice), a lawyer serving as a public officer or employee shall not:
(c) participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter;
. . .
The essence of these rules is the duty of loyalty to clients, past and present. Pursuant to Rule 1.11(c), you must screen yourself from participation in any matters before the Circuit Court over which you had responsibility while in private practice. Within the scope of your former employment, not only did you have access to confidential information in virtually all matters handled by your employer, but you regularly reviewed all tax sale cases, drafted the pleadings in these matters and had supervisory responsibility over these cases. Due to the nature of your duties for the firm and involvement in the supervision of other employee who worked on such cases filed with the Circuit Court, you personally and substantially participated in all the tax sale matters handled by the law firm during the five months you were employed by the firm. Thus, you are precluded from participating, on behalf of the Court, not only those cases where you actually wrote pleadings, but also in any case over which you had supervisory responsibility or involvement.
The intent of Rule 1.11(c) is to prevent a lawyer’s government employment from adversely affecting a client. The Rule does not act as a permanent bar to your ability to perform work (either for the Circuit Court or in possible subsequent private practice) in matters involving your former employer where there is no conflict, such as cases involving clientele acquired by the law firm after you left its employ.
You should be mindful that your current position as a judicial law clerk may involve you in personal and substantial ways in the deliberation processes of the Court on a wide variety of cases and that you have ongoing access to private and confidential information regarding numerous parties subject to the jurisdiction of the Circuit Court. Such access to information may create actual and potential conflicts of interest in the event that you return to the private practice of law in the future.
Rule 1.12(a)( (Former Judge or Arbitrator) provides the relevant direction with regard to your possible private legal employment subsequent to government service:
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such person, unless all persons to the proceeding consent after disclosure.
The Committee directs your attention to Ethics Docket 1995-09 for guidance on the parameters of Rule 1.12(a) for judicial clerks leaving government employment to accept employment with a law firm. See also Standing Committee on Legal Ethics of the Virginia State Bar, Opinion 1478 (8/24/92).
We thank you for your inquiry and hope that the foregoing is responsive thereto. Opinions of the Committee may be obtained from the Maryland State Bar Association web site: www.msba.org.
REFERENCES:
Rules 1.9; 1.11; 1.12; Ethics Docket 1995-09; Standing Committee on Legal Ethics of the Virginia State Bar, Opinion 1478 (8/24/92).
ASSIGNED TO: JOAN B. GORDON
DATE ASSIGNED: DECEMBER 11, 2006
DATE DISTRIBUTED: JANUARY 24, 2007
DATE ISSUED: January 29, 2007