Ethics Corner: Conflict of Interest? Former Government Lawyer

Introduction

The NYSBA Committee on Professional Ethics recently responded to an inquiry about what conflicts may arise if the county’s public defender’s office hires the county’s former district attorney (DA).1 Subject to the restrictions imposed by Rule of Professional Conduct (RPC) 1.11, the Committee did not perceive a barrier to the former DA’s employment in the Family Court unit of the public defender’s office.2 This article considers the restrictions on former government lawyers when they represent clients in matters connected to the lawyers’ prior employment.

RPC 1.11: Three Issues

The restrictions on former government lawyers are regulated by RPC 1.11[a][2]—the rule governing conflicts facing a lawyer who “participated personally and substantially as a public officer” in a matter connected to the lawyer’s prior employment—and by RPC 1.11[c]—the portion of the rule governing the use of “confidential government information” by the former government lawyer.3 Because some conflicts can be resolved by the use of an ethics screen,4 attention must also be paid to RPC 1.11[b]. The issues relating to Rule 1.11 are discussed below.

RPC 1.11[a][2]

‘Personal and Substantial Participation’

RPC 1.11[a][2] provides that a former government lawyer “shall not represent a 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 gives its consent, confirmed in writing to the representation. . . . ” Ethics Opinion 1257, referenced in the opening paragraph, takes a narrow view of the conduct encompassed by the term “personal and substantial participation in a matter.” Even though papers filed by the Office of the District Attorney typically display the name of the DA, the Opinion noted, this fact “does not . . . in and of itself establish that the former district attorney ‘participated personally and substantially’ within the meaning of Rule 1.11[a][2].”5

Ethics Opinion 1257 identified some of the considerations that would not result in the disqualification of a former DA. Neither nominal supervisory involvement in a matter nor representation that does not involve the disclosure of confidential information is disqualifying. Merely “covering a case”6 for an assistant district attorney, for example, does not fall within the ambit of personal and substantial participation. Two other considerations mentioned in the Opinion 1257 are:

• the extent to which the former prosecutor was kept apprised of cases in the office; and
• the extent of the former prosecutor’s access to the case files and other information regarding cases in the prosecutor’s office.7

Professor Simon takes a view consistent with the Ethics Opinion, pointing out that “[s]ubstantial responsibility without personal involvement would not be enough to trigger Rule 1.11.”8 This perspective was applied by Matter of Coleman,9 where the court held that the former chief surrogate court attorney was not subject to automatic disqualification from every case he reviewed. In Coleman, the chief court attorney reviewed every case “in order to assign it to an appropriate subordinate court attorney.”10 The appeals court found that “this responsibility was administrative rather than substantive in nature.”11 Plainly, the chief attorney was personally involved in these cases, but he was not substantially involved.

Like Ethics Opinion 1257, the court in Arroyo v. City of Buffalo narrowly drew the contours of what constitutes substantial participation.12 The court first noted that “[f]or the purposes of Rule 1.11[a][2] substantial participation is ‘substantive in nature’ and ‘directly affects the merits of the prior case.’ ”13 Applying this standard, the Arroyo court declined to find that the former ADA serving as plaintiff’s counsel in a lawsuit alleging unconstitutional police conduct—an improperly executed search warrant—had substantially participated in the events in his role as an ADA even though in his prior position he had questioned one of the defendants about the incident that predicated the civil rights lawsuit: “[T]he record is barren of anything to support that Albert [the former ADA] substantially participated in the incident or its aftermath by any substantive involvement such as an official investigation, deliberations regarding whether criminal charges should be filed, or prosecution.”14

‘In Connection With a Matter’

RPC 1.11[a][2] refers to representation “in connection with a matter” without specifying whether “matter” must be the same matter as where, for example, the lawyer switches from one side of the “v.” to the other in a litigated matter. Arguably, “matter” extends to proceedings that are substantially related to the matter but are not the same matter. This issue has been discussed in several cases.

The court in Arroyo v. City of Buffalo also addressed the issue of whether Albert, the former ADA and now the plaintiff’s attorney, was representing the plaintiff in the same matter, i.e., the actionability of the defendants’ execution of a search warrant at the plaintiff’s residence. While the Arroyo court employed the commonly recited “same matter” standard, this requirement is sometimes flexibly applied. Indeed, in Heyliger v. Collins,15 the court applied this standard even where the record remained unclear about whether two substantially related matters constituted the “same matter” for Rule 1.11 purposes.

In Heyliger, the plaintiff in a defamation case sought the disqualification of Attorney Jackson who, as an assistant district attorney in Broome County, had prosecuted the plaintiff in several criminal cases. In his new role as a private attorney, Jackson represented the Binghamton Press and Sun Newspaper (Binghamton Press), which allegedly had defamed the plaintiff. Considering Jackson’s role in the criminal and civil matters relating to the plaintiff, the court observed: “. . . [I]t is not perfectly clear, from either the plaintiff’s [Second Amended Complaint] or his motion seeking disqualification, that Attorney Jackson’s conduct as a prosecutor and plaintiff’s defamation claims arise from the same ‘matter’ for purposes of Rule 1.11. . . .”16

“There is no doubt, however,” the Heyliger court continued, “that Attorney Jackson was employed by the BCDA during the times relevant to the lawsuit, and that Attorney Jackson, as a Broome County ADA, personally prosecuted plaintiff for several crimes. . . . ”17 The close relationship between the civil and criminal matters handled by Jackson constituted one of the reasons for the court’s disqualification of him as counsel for the Binghamton Press.

Other cases similarly apply the “same matter” standard in a flexible way. For example, in Green v. City of New York, the court concluded that “[w]hile the same legal theory would not make two matters the same, the matters might be the same even though they pertain to different lawsuits with different parties.”18

The Green decision was issued in a case challenging the lawfulness of strip searches conducted by Department of Correction officers. The city moved to disqualify two of the plaintiff’s lawyers who had previously, as city employees, represented the city in the defense of a class action lawsuit challenging the lawfulness of strip searches. After leaving city employment, the former government lawyers, now in private practice, represented the plaintiff who claimed damages arising from an allegedly unlawful strip search.19

The Green court reviewed the lawyers’ extensive work on the issue of strip searches when they were employed by the city. This included the abovementioned representation, discussions with Department of Correction executives and the provision of guidance for department personnel when they met with opposing counsel. Based on these facts, the court concluded that “the scope of the representation in the first matter included advice on subjects highly relevant to the second matter.”20 Thus, for the purpose of Rule 1.11, the court concluded that the matters were the same. As a result, the court disqualified the two lawyers.

Dealing with the “same matter” issue, the court in Goodwine v. City of New York,21 concluded that it had “no trouble finding that the two matters are ‘the same’: they involve or involved the same plaintiff, the same legal theory and the same defendants.” In Goodwine, the defendant in an employment discrimination case sought to disqualify counsel for the plaintiff, a former city employee who had investigated employee complaints possibly providing for the basis of class-action litigation. Now in private practice, the former employee sought to establish the city’s liability in this single-plaintiff employment discrimination case. “[Plaintiff’s counsel] previously responded to [plaintiff] Goodwine’s discrimination claims on behalf of [the City]; she may not now prosecute those claims against [the City] on behalf of Goodwine.”22

Like the case law cited above, Professor Simon takes a broad view of the term “matter” as it is used in RPC 1.11[a][2]. “Whatever definition is used for the term ‘matter,’ the phrase ‘in connection with’ arguably broadens the scope of the rule to encompass not only the same matter but also matters that are ‘substantially related.’”23 NYSBA Comment 10, opining on RPC 1.11, seems consistent with the view taken by Professor Simon: “… [A] matter may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which (i) the matters involve the same basic facts, (ii) the matters involve the same or related parties, and (iii) time has elapsed between the matters.”

Consider the following hypothetical. As a prosecutor, a former district attorney (FDA) was personally and substantially involved in the prosecution of X in a DWI case, People v. X. Years later, the FDA represented Y in a child custody matter, Y v. X. Claiming a conflict under RPC 1.11, X moved to disqualify the former government lawyer in the case of Y v. X.

Are the two cases sufficiently related to warrant the disqualification of the FDA? Although People v. X and Y v. X are obviously different cases litigated in different courts, each pursuing a distinct litigation goal, the two cases arguably fit within a flexibly construed “same matter” rubric. The two cases “involve the same basic facts,” i.e., X’s abuse of alcoholic beverages and therefore his fitness as a parent. Abuse of alcohol was the focus in the DWI case and it will be the focus in the custody matter. Both matters involve the same party, namely X. Thus, X in his motion to disqualify the FDA can plausibly argue (citing Simon’s, for example) that for the purposes of RPC 1.11, the two cases involve the same matter.

RPC 1.11[c]

‘Confidential Government Information’

RPC 1.11[c] expands the grounds for disqualification because a lawyer may possess “confidential government information”24 without having had the personal and substantial participation required for disqualification under RPC 1.11[a][2]. Thus, a supervisor with only nominal familiarity of a case who comes into possession of confidential government information about a person would be barred from the representation of a private client “whose interests are adverse to that person….”25 Moreover, disqualification under RPC 1.11[c] is authorized in any matter involving a person about whom confidential government information is known without regard to the relationship between the subject matter of the former and current representations.

RPC 1.11[c] defines “confidential government information” as information known by a lawyer who obtained it “under government authority . . . [ where such information] is not otherwise available to the public.”26 The protection afforded to “confidential government information” under RPC 1.11[c] supplements the RPC 1.11[a][2] provisions prohibiting a former government lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially when they were a government lawyer.27

Where a former government attorney possesses confidential government information about an individual, the attorney “may not represent a private client whose interests are adverse to that person [about whom confidential government information is known] in a matter in which the information could be used to the material disadvantage of that person.”28, 29 This rule applies only when the former government lawyer actually possesses confidential government information; it does not apply when such information is imputed to the former government lawyer because it is known to the lawyer’s former employer.

RPC 1.11[c] also casts a wide net because its reach is not restricted to situations in which confidential government information will or will likely be used against a person about whom such information is known. It is enough that the information “could [emphasis added] be used to the material disadvantage of that person.”30

RPC 1.11[c] protects confidentiality interests even where the employer of the former government lawyer consents to the representation undertaken by its former employee as provided for in RPC 1.11[a][2]. In other words, the government’s consent does not trump the conflict.

Information Available to the Public

Information that is not available to the public may be classed as “confidential government information.” In a Third Department case in which counsel for the children in a custody proceeding had previously prosecuted the mother for child endangerment, the facts of the criminal case (which ended with an adjournment in contemplation of a dismissal) were assumed to constitute confidential government information.31 But where the information appears in records that may be obtained by the public, the information will not be considered to constitute confidential government information. As Professor Simon notes, information found on the internet or available in public records or upon request from a government agency does not constitute confidential government information.32

Consider the following hypothetical. A former government lawyer prosecuted X in the case of People v. X. Assume that the former government lawyer through the prosecution of X had access to X’s DCJS rap sheet. Years later, former government lawyer, now in private practice, represents Y in the case of Y v. X. Counsel for X moves to disqualify the former government lawyer (counsel for Y) on the grounds that the former government lawyer possesses confidential government information (i.e., criminal history data) about X that “could be used to the material disadvantage” of X.

This is a plausible argument because criminal history information maintained by DCJS is confidential, is not subject to public scrutiny under 9 N.Y.C.R.R. 6051.1 and is exempt from disclosure under FOIL.33 There is no doubt that the DCJS data could be used to the disadvantage of X.

But the party opposing the disqualification of Y’s attorney (the former government lawyer) could reasonably oppose X’s motion to disqualify by arguing that X’s criminal history is in fact available to the public. Reference could be made to various internet sites advertising the availability of criminal history information. In opposing X’s motion to disqualify, Y could draw the court’s attention to the public nature of the criminal history information (limited as it is) available on the website of the Department of Corrections and Community Service.

Research does not resolve the issue of whether information is unavailable to the public where, although procedures exist for obtaining the information, as a practical matter it is difficult or impossible to obtain in a timely fashion. For example, under FOIL, the procedure for obtaining the information may takes months, or if litigation is necessary, years.

Imputation of Conflicts

RPC 1.11[c] imputes a former government lawyer’s personal disqualification to that lawyer’s current law firm unless “the disqualified lawyer is timely and effectively screened from any participation in the matter” as prescribed in RPC 1.11[b].34 RPC 1.11[b] lists the commonly accepted methods by which a law firm can isolate a personally disqualified lawyer from the rest of the firm and thereby avoid imputed disqualification. As the West Practice Commentary (K.A. Reilly) on RPC 1.11 points out: “Rule 1.11[b] allows for a limited exception when a law firm and the former government lawyer can demonstrate the adoption and effective implementation of protective screening protocols which segregate the disqualified lawyer from a current firm client as well as the flow of material information among the disqualified lawyer and others in the firm. . . .”

“Effective implementation” means timely implementation because delay in establishing an ethics screen raises the issue of whether protected confidential information possessed by the disqualified attorney was transmitted to the law firm before erection of the screen. Professor Simon makes the point: “Timeliness is the pre-dominant factor in determining” the effectiveness of a screen.35

An excellent discussion of screening in the context of a former government employee can be found in Essex Equity Holdings v. Lehman Brothers.36 Imputation of a personal conflict to a law firm may be also avoided when RPC 1.11[a][2] is applied. Note that the general imputation rule found in RPC 1.10 is not applicable in RPC 1.11 cases.

Former Client Conflicts

As noted above, RPC 1.11 applies only to former government lawyers. RPC 1.9, referenced in RPC 1.11[a][1], also regulates former client conflicts but governs the conduct of all lawyers, including former government lawyers.37 Thus, former government attorneys are subject to the provisions of both RPC 1.11 and RPC 1.9.

RPC 1.9[c] governs the use and disclosure of confidential information (as defined in RPC 1.6) when an attorney faces a former client conflict. Separately, RPC 1.9[a] and [b] provide guidance on the question of whether a lawyer may represent a current client in a matter “substantially related” to a matter involving a former client. Issues arising from the “substantially related” test are not part of the regimen imposed by RPC 1.9[c].

The application of RPC 1.9 in the context of public defender practice is discussed in Matter of Jalicia G.38 U.S. v. Coleman39 considers the RPC 1.9 in a criminal case. A NYSBA ethics opinion offers a sound introduction to former client conflicts.40

The regulation of former client conflicts under RPC 1.9 deserves a separate article, one we leave for another day.

Betsy Hutchings and Brad Rudin are alums of the New York City Legal Aid Society and have previously published articles on New York legal ethics. Both now practice law in upstate New York.