Following is the twelfth in a series of posts about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC), under the category of “Lawyer-Client Relations” – related to “special conflicts of interest for former and current government officials and employees.”
As with other new RPC, Rules 1.11 does not directly correspond to a prior rule. It provides:
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public official or employee of the government:
(1) is subject to rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee, unless the appropriate government agency gives its informed written consent to the representation. This paragraph shall not apply to matters governed by rule 1.12(a).
(b) When a lawyer is prohibited from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the personally prohibited lawyer is timely 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.
(c) Except as law may otherwise expressly permit, a lawyer who was a public official or employee and, during that employment, acquired information that the lawyer knows is confidential government information about a person, 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. As used in this rule, the term “confidential government information” means information that has been obtained under governmental authority, that, at the time this rule is applied, the government is prohibited by law from disclosing to the public, or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the personally prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public official or employee:
(1) is subject to rules 1.7 and 1.9; and (2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed written consent; or
(ii) negotiate for private employment with any person who is involved as a party, or as a lawyer for a party, or with a law firm for a party, in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by rule 1.12(b) and subject to the conditions stated in rule 1.12(b).
As set forth above, this rule spells out duties a former government employee or official must guard against for themselves or firm. Subd. (a) says a lawyer who formerly served as a public official or government employee is subject to Rule 1.9(c) (Duties to Former Clients) and shall not represent a client connected to a matter in which the lawyer had previously participated … unless the appropriate government agency consents to the lawyer’s representation of the client in writing. When subd. (a) does prohibit a lawyer from representation, subd. (b) states that NO lawyer in the firm may knowingly take on or continue representation in the related matter … unless the prohibited lawyer is screened from participation in the matter and fee AND written notice is promptly given to the government agency, allowing it to determine compliance with the rule.
In short, if lawyer formerly worked for a government agency and acquired information he or she knows is confidential, that lawyer cannot then later represent in private practice a client whose interests are adverse to the person in question. The term “confidential government information” is defined. And subd. (d) repeats much of what subd. (a) says, but refers to a lawyer who is a current government employee or official. Subd. (d) also lists conditions that bar a lawyer from seeking private employment with certain parties and law firms related to a current matter.
Other than the fact that the title of Rule 1.11 in the American Bar Association (ABA)’s RPC uses the word “officers” instead of “officials, subds. (a)-(d) are almost identical to the CBA’s RPC Rule 1.11(a)-(d). However, the ABA’s RPC includes a fifth subdivision. Subd. (e) defines the term “matter” as used in this rule.
Benefit: Generally speaking, this provides protection against potential abuse of your confidential information by prior government lawyers or related staff.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at email@example.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)