MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2024-04
Conflict of Interest in the Context of Successive Federal Employment
QUESTION PRESENTED:
1. Do Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.9 and/or 1.11 apply where a bar member formerly worked as an attorney representing a client but is not currently doing so?
2. Do MLRPC 1.9 and/or 1.11 apply where the former employer and the current employer have some indicia of independence from one another but are fundamentally two parts of the same branch of the same government?
3. My relevant work for my former employer consisted of advocacy in public rulemakings conducted by my current employer, which concern policy aspects of the system for regulating [certain] rates. My advocacy involved abstract legal and economic principles, publicly known facts, and other facts that my former client has disclosed to my current employer. In such circumstances, do the rulemakings comprise “matters” for purposes of MLRPC 1.9 and/or [1].11, such that I would be precluded from providing legal representation to my current employer concerning the rulemakings?
CONCLUSION:
Each query can be answered simply, but when applied to the facts, those answers don’t really give you much guidance. We will try to both answer your specific questions and provide guidance.
Yes, Rule 1.11 and by the terms of that Rule, Rule 1.9 apply to your work with your new employer as you are a current government official, which Rule 1.11 expressly covers. As to Question 2, the Committee believes that based on your description, you were the attorney for a specific agency, not the organization of which each agency is a part, and the agencies are distinct entities and must be treated as such by the Rules. As to Question 3, Rule 1.11 clearly defines a “matter” for its purposes as covering “a request for a ruling,” which we believe covers advocating before an agency for a specific rule; the Committee views advocating before a rule-making body on behalf of a client to be different from participating in the rule-making for a client that makes the rules which other ethics committees and we believe would not preclude an attorney from future representation of clients challenging the rule under many factual situations. As to advising the rule-maker, Rule 1.11 would not cover the activity as “a request for a ruling” whereas, representing a client in proceedings before the body seeking to have that rule maker either adopt, amend, or decline to adopt a specific rule seems to fall within the ambit of Rule 1.11 requesting “a ruling.”
BACKGROUND:
You have asked several questions related to your employment with a government agency in a non-attorney capacity. The genesis of your request flows from your previous employment with another government agency subject to regulatory authority and oversight by your current employer. Both agencies are part of the same government and have many commonalities, but are nevertheless, separate entities. Counsel for your current employing agency opines that the Maryland Lawyer Rules of Professional Conduct bar you from engaging in providing advice to your current employer’s board chair for whom you work or from participating in a rule-making process because the rule-making is one in which you advocated for your previous employer and one in which you were involved personally and substantially as counsel.
DISCUSSION/ANALYSIS:
Rule 1.11(d) applies to attorneys who are serving as officers or employees of the government regardless of their role:
(d) Except as law may otherwise expressly permit, an attorney currently serving as a public officer or employee:
(1) is subject to Rules 19-301.7 (1.7) and 19-301.9 (1.9); and
(2) shall not:
(A) participate in a matter in which the attorney participated personally and substantially while in private practice or non-governmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(B) negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the attorney is participating personally and substantially, except that an attorney serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 19-301.12 (b) (1.12) and subject to the conditions stated in Rule 19-301.12 (b) (1.12).
Neither Rule 1.11(d)2 (A) or (B) apply to your situation; however, Rule 1.11(d)(1) does. Specifically, the conflict rules of both Rule 1.7 and Rule 1.9 apply. Within Rule 1.11, the references to Rule 1.9 differ in subsections (a) and (d). In the former Rule 1.9(c) applies; whereas in the latter Rule 1.9 as a whole applies as does Rule 1.7 (the general conflict Rule). Thus, subsection (d) applies Rules 1.9 and 1.7 to government officials, regardless of whether they are representing a client in their official capacity.
Rule 1.9 provides in pertinent part:
(c) An attorney who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.7 provides:
(a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney's responsibilities to another client, a former client or a third person or by a personal interest of the attorney.
(b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:
(1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Rule 1.7 discusses responsibilities when an attorney “represents” clients in conflict with one another, etc.; so, should you switch to a role of attorney representing the Commission, rule 1.7 would affect whether you could represent the Commission in matters involving your former client. However, as in prior opinions, the determination of the extent of the limitations depends upon specific facts that only the inquiring attorney knows, and the attorney’s evaluation of those facts must govern the attorney’s conduct. Rule 1.7 does not specifically apply to government officials who are not acting as lawyers for the government because that Rule only addresses conflicts while representing clients, not while serving as a government official. But, as we discuss below, Rule 1.9 may affect whether you can act to advise your employer on matters where doing so would involve using information not generally known to the public gained in the prior representation to the disadvantage of the former client or where you would be disclosing confidential information.
By virtue of the combined effect of Rules 1.9 and 1.11, the Committee observes that having participated as the attorney for a client advocating over a proposed rule that was held in abeyance, you likely have confidential information gained in your prior representation regarding strategy and possibly other work product information beyond information that is “generally known.” The ABA Formal Opinion 479 discusses the distinction between information available to the public and information that is “generally known.” In that Opinion, the ABA stated that:
Consistent with the foregoing, the Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. * * *
Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).2. (Footnotes omitted.)
Our Committee agrees. For that reason, to the extent that you hold knowledge not generally known and gained through your prior representation of your client, you cannot use that information to the disadvantage of the former client. Determining whether you have that information and how it might be used to disadvantage your former client must be left to your judgement in the first instance, and the Committee cannot decide that for you.
Comment 4 to the Rule 1.11 provides apt language regarding your situation, which the Committee believes makes clear that the Rules were intended to cover your situation:
“…On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. An attorney should not be in a position where benefit to the other client might affect performance of the attorney's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the attorney's government service…”. [Italics supplied.]
You point to language in Rule 1.11 Comment 5 discussing movements between government clients and point to the language discussing movements between different governments, rather than within the same government as indicative of why the Rule should not apply in your case as it discusses shifts between different governments, not within the same government. In many instances that would be true and in your situation the Committee believes would be true if your client had been the government itself, rather than a specific entity of that government. Based on the facts you provided, your client was a specific entity or agency of the government and not the government itself. Comment 5 directs us to Rule 1.13 Comment 8 to consider how the Rule might apply. That Comment clarifies a distinction when identifying the client and recognizes that an attorney may represent a specific agency or official, a branch of government, or the government as a whole.
Government Agency--[8] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such attorneys may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule….
Because you represented a specific agency of the government and have switched to a companion agency, the Committee believes that Rules 1.9 and 1.11 apply to prevent you from acting for the new agency on a matter (the rule which was held in abeyance) in which you participated personally and substantially, if doing so would disadvantage your former client should you use information not generally known to the public in advising your employer. The Committee believes this to be true both while you hold your current employment and if, in the future, you act as an attorney representing the Commission in which case Rule 1.7 would also apply.
The Committee agrees with you and the court in Texas vs. Biden, 570 F. Supp. 3d 398, 405 (N.D. Tex. 2021) when it distinguished matters that arise after an attorney leaves employment with a client and which are distinct from the matters within the prior representation. So, for example, should the Commission determine to pursue rule-making affecting your former client, you would not be prohibited from participating on behalf of the Commission as a public employee or official. Similarly, Rule 1.7 and Rule 1.9 would not act to preclude you from acting as an attorney for the Commission unless you had information about your former client not “generally known” that you use to disadvantage your former client. The limitation applicable to you as a public employee or official in Rule 1.11, the Committee views as applying only to the rule held in abeyance and only to the extent that you have information regarding your former client’s advocacy regarding that rule not “generally known” or you have other information about your former client that could be used to its disadvantage.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
• Rules cited
• MARPC 19-301.7
• MARPC 19-301.9
• MARPC 19-301.11
• MARPC 19-301.13
• Cases cited
• Ethics Dockets cited
• ABA Formal Opinion 479
• Other authority cited