These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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10-Former Government Lawyer Conflicts

20-Government Official Conflicts

31-Protecting and Disclosing Confidences and Secrets

51-Government Attorneys

(ABA Model Rule 1.11(c) “protects against the misuse of ‘confidential government information’” acquired by a full-time or part-time government lawyer, by disqualifying the lawyer from representing private clients on whose behalf the lawyer could use such information to an adversary’s material disadvantage. Such “confidential government information” consists of information the government is “prohibited by law from disclosing,” “has a legal privilege not to disclose,” and which is “not otherwise available to the public.” This disqualification standard differs from the other information-based conflicts standards in several ways. First, the disqualification applies if the government lawyer acquired information from someone other than the private client’s adversary. Second, the disqualification standard applies however the lawyer acquired such disqualifying information as “a public officer or employee” (such as a police officer), even if the lawyer was not representing the government (so it applies to lawyers “serving as legislators, public executives, and other public officers who are not representing the government as legal counsel).” Third, the disqualifying information need not be protected by the normal Rule 1.6 confidentiality standard – for instance it includes information the lawyer heard from another public officer or employee. Fourth, the disqualification standard applies if the former government lawyer “could” use the information to the adversary’s “material disadvantage” (not just if the lawyer does so). Whether such information could be used in that way is “a question of fact” (as is whether such information is “publicly available” through routine discovery). The disqualification standard “applies equally to a full or part time lawyer who currently serves or formerly served as a government officer or employee,” and is “not consentable.” It also applies to lawyers currently working in the government as a lawyer or otherwise, while maintaining a private practice. The disqualification standard applies to any full-time or part-time current or former government lawyer representing a “private client” – which can “include[] public entities and officials whom the lawyer represents in private practice.” But the disqualification standard does not apply to a current government lawyer working in that role who represents “a government employee in the employee’s personal capacity.”)

Copyright 2000, Thomas E. Spahn