| LEO Num | Topics | Summary | Date |
ABA-509
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| (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.”) | 2/28/2024 |
1302
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| [DISAPPROVED by the Virginia Supreme Court 9/12/90] A law firm hiring a former Assistant County Attorney may avoid any imputation of the lawyer's individual disqualification by imposing a "Chinese Wall." | 1/4/1990 |
1334
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| A bankruptcy judge's law clerk may join a firm handling a matter on which the law clerk worked, as long as the clerk is screened. Such a screen would be required (because of the appearance of impropriety) even if all parties consented to the firm's representation without the screen. | 4/20/1990 |
1114
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| A Commonwealth's Attorney who unsuccessfully sought the issuance of a reckless driving warrant against a driver may not represent plaintiffs in a civil action against the driver, because the lawyer has had "substantial responsibility" for a related matter while a public employee. | 7/13/1988 |
1299
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| A federal government lawyer worked on formulating an agency rule. After the lawyer left the agency, the rule was redrafted and ultimately enacted in a form different than that on which the lawyer worked. The lawyer was free to join a firm challenging the rule ultimately enacted unless the lawyer's duty to keep his former client's (the agency) confidences secret would prevent the lawyer from vigorously representing his new client. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 9/13/1990 |
1478
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| A federal judge's former law clerk may not work on a case that represented a re-filing of a matter on which the clerk worked, but the disqualification did not extend to the entire firm (DR 9-101 contains no imputed disqualification provision). Furthermore, the firm need not formally screen the clerk (this LEO overruled LEO 1334). [Rule 1.11(b) probably would require that the law clerk be screened.] | 8/24/1992 |
0522
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| A former Assistant Commonwealth's Attorney may not represent a Special Grand Jury when the lawyer's new firm represents two uncooperative material witnesses in the investigation. | 8/1/1983 |
0702
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| A former Assistant Commonwealth's Attorney may not represent the plaintiff in an action against a defendant who was also a criminal defendant prosecuted by the lawyer. | 7/3/1985 |
1371
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| A former Assistant Commonwealth's Attorney may represent a criminal defendant on appeal if the lawyer had no substantial responsibility over the case while in the Commonwealth's Attorney's office (the former Assistant Commonwealth's Attorney had nothing to do with the case, never saw the file, never heard of the case and had no knowledge of the case).On the other hand, a former Assistant Commonwealth's Attorney is per se prohibited from defending a criminal defendant if the lawyer prosecuted the defendant on a separate earlier drug charge while a public employee. Consent would not cure this problem "because of a need for the heightened sensitivity of public perception regarding the private practice of a public employee." | 10/1/1990 |
0942
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| A former Assistant Commonwealth's Attorney may represent a victim in a civil case as long as the lawyer did not participate in the prosecution of the alleged criminal while an Assistant Commonwealth's Attorney. | 6/12/1987 |
1570
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| A former Assistant Commonwealth's Attorney who was involved in a criminal matter while a public employee may represent the victim against a former witness for the Commonwealth in a later civil action, as long as the Commonwealth's Attorney's office consents and the lawyer's "prior contacts with the victim did not involve the purpose of obtaining professional employment." | 12/14/1993 |
0604
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| A former Commonwealth's Attorney may not represent a civil defendant in a wrongful death action when as Commonwealth's Attorney the lawyer prosecuted a related criminal charge against the defendant. | 8/10/1984 |
0605
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| A former county attorney may not represent a defendant in a special use permit violation case when the lawyer had been county attorney at the time the county initially sued the defendant, caused the suit to be filed and was aware of its progress. | 8/10/1984 |
0373
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| A former County Attorney may represent a party seeking to secure a franchise from the county as long as the lawyer did not have "substantial responsibility" in the matter while a public employee. | 5/15/1980 |
ABA-409
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| A former government lawyer who participated "personally and substantially" in a "discrete and isolatable transaction or set of transactions between identifiable parties" may not be involved on behalf of or adverse to the government without the government's consent, although other lawyers in the firm may do so if the former government lawyer is screened. In addition, the duty of maintaining confidences may prevent the former government lawyers' involvement adverse to the government "even where the representation involves general agency rules or policies and not a 'particular' matter (although the screening mechanism would still work). Therefore, the general conflicts rule would not bar a former government lawyer's challenge to agency rules even if the lawyer were "personally involved in their development and implementation" (because "rule making is generally not deemed to be a 'particular matter'"), although the former government lawyer might be prohibited from such a representation because of the confidentiality rule.These rules might apply to lawyers "specially retained" to represent the government in addition to full-time government employees, although "a viable argument can be made" that such lawyers' conflicts situations will be governed by the confidentiality rule and not the former government lawyer rule. The rule's definition of "matter" does "not include general agency regulatory and policymaking activity" or briefing of abstract principles of law," and thus is "substantially narrower than the definition of matter" under the confidentiality rule. A former government lawyer's "general knowledge" of "policies and practices of her former agency" are ordinarily not be considered disqualifying under the confidentiality rule. "Most lawyers who have represented organizational clients will inevitably have general information about the inner workings of the client, but we do not suppose such information is necessarily disqualifying" under the confidentiality rule. | 8/2/1997 |
1520
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| A former government patent examiner may act as an expert witness regarding issues on which the examiner had not worked and for which the examiner had no substantial responsibility while a public employee. | 4/12/1993 |
1393
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| A home builder sued the buyer for failure to pay, and the buyer counterclaimed for construction defects. The buyer also complained to the local Board of Building Code Appeals, which was represented by the county attorney. The board found that the builder had complied with the code but its finding was overturned on appeal. The county attorney was later hired to represent the builder in the civil lawsuit with the home buyer. However, the county attorney was barred from the representation because the role was "substantially related" to the work the lawyer did as a public lawyer, and would also place the lawyer in the untenable position of having to challenge the findings of the Board that the lawyer had earlier defended. | 3/21/1991 |
0303
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| A law firm hiring a former Assistant Commonwealth's Attorney may defend criminal cases that arose while the lawyer was in public service, as long as the lawyer had no involvement in the cases while in public service. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 11/2/1978 |
1250
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| A law firm may not represent criminal defendants after hiring a former Assistant Commonwealth's Attorney who had been assigned to prosecute or had some minor involvement involving the prosecution of the defendants, even though the Commonwealth's Attorney did not recall any of the facts, did not recall any discussions about the case and had not made any court appearances on behalf of the Commonwealth. The Bar held that the Commonwealth's Attorney had sufficient responsibility to trigger DR 9-101(B). Given the appearance of impropriety, consent from the client would not cure the conflict. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 7/25/1989 |
1430
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| A law firm wants to hire a local government attorney with whom the firm is working on behalf of the local government entity. It would be a per se ethical violation for the former government attorney to personally participate in matters on which the lawyer worked while a public employee, "although adverse representation is not involved." However, because Canon 9 has no imputed disqualification rule, the firm may continue to represent the entity as long as the new lawyer is not personally involved. If a former government lawyer intends to be adverse to a former client, the lawyer's personal disqualification would result in the firm's imputed disqualification under DR 5-105(E). [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 2/22/1992 |
1243
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| A lawyer may not represent clients in DUI matters when the lawyer formerly had substantial responsibility in those particular matters as a Commonwealth's Attorney, even if the clients and the Acting Commonwealth's Attorney consent (given the appearance of impropriety). | 5/2/1989 |
1241
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| A lawyer representing a defendant in an automobile accident case learns that a partner prosecuted the client while an Assistant Commonwealth's Attorney. The former Commonwealth's Attorney has not and will not be involved in the civil case. Given the appearance of impropriety, the law firm must withdraw from representing the defendant in the civil case, even if the client consents. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 5/2/1989 |
1110
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| A part-time Assistant Commonwealth's Attorney representing a county Department of Social Services may also represent Medicaid applicants before the State Board of Social Services because the private representation does not relate to a matter in which the lawyer had "substantial responsibility" while a public employee. | 8/1/1988 |
1008
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| An Assistant Commonwealth's Attorney was to join a firm in two months. The firm may continue to defend cases brought by the Commonwealth's Attorney as long as the clients consent. The possible conflicts should also be disclosed to the court, and the parties' consents reflected on the record. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.] | 11/24/1987 |
1624
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| The Bar declines to state whether a federal judge was obligated to reveal that a lawyer appearing before the court had served as the judge's law clerk three or four years ago. Because the current case was unrelated to any matter on which the lawyer assisted the judge while a clerk, the lawyer was not obligated to disclose the earlier clerkship. | 2/7/1995 |
1746
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| This opinion addresses numerous scenarios involving a former Commonwealth’s Attorney’s ability to represent clients who have or have had some involvement in the criminal justice system during or after the time that the Commonwealth's Attorney held office. New Rule 1.11 differs from the earlier ethics Code in three respects: it applies to government lawyers who participated “personally and substantially” in a matter rather than those who had “substantial responsibility;” it applies to government lawyers who played such a role “in connection with a matter” rather than “in a matter;” and it requires curative consent from the new client in addition to the former government employer. The Bar finds that in some of the scenarios, the “former proceeding and the new proceeding share the same parties and some of the same significant facts,” thus triggering Rule 1.11. In determining if a government lawyer’s involvement was “personal and substantial,” the Bar indicated that “consideration should be given to whether his involvement was of such a degree as to provide the opportunity for that potential risk [“of abuse of a public position for the benefit of a private client”].” Government lawyers must also consider whether the “receipt of confidential information” creates a conflict. Although in a private setting consent could cure a conflict created by the receipt of confidential information, here “the former client is the Commonwealth; thus such consent is not available.” | 8/30/2000 |