When can a lawyer who used to represent a government agency later appear against it, and is the lawyer's new firm disqualified too?

Plain-English summary

A lawyer who had served as counsel to a municipal agency asked what restrictions applied to him, and to his new private firm, when he joined that firm and wanted to do legal work before the agency and other town agencies. The committee split its answer into the restrictions on the lawyer himself and the restrictions on his firm, and flagged at the outset that the conflict-of-interest statute (Chapter 268A) might also apply, a question of substantive law outside the committee's jurisdiction.

As to the lawyer himself, the committee applied DR 4-101 (duty to keep a client's, including a former client's, confidences and secrets) and DR 9-101(B) (a lawyer "shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee"). The committee continued to use the substantial-relationship test for opposing a former client, while noting the Supreme Judicial Court had not committed to that test (Masiello v. Perini Corp.). For a former government lawyer, DR 9-101(B) combined with the confidentiality bar of DR 4-101(B) approximates the substantial-relationship test in most cases. Where different town agencies and different matters are involved, and the lawyer holds no relevant confidences of those agencies, appearing against them poses no problem. When he appears before his former agency acting as a tribunal rather than as an opposing party, only DR 9-101(C) (no claim of improper influence) governs.

On the firm, the committee addressed whether DR 5-105(D), which bars a lawyer's partners and associates from employment the lawyer must decline, automatically disqualifies the whole firm. It concluded the rule cannot be read literally in every case and, following ABA Formal Opinion 342 and federal decisions such as Kesselhaut and Armstrong v. McAlpin, that vicarious disqualification is not automatic where a former government lawyer is involved. The firm may proceed if it uses effective measures to screen the former government lawyer (including from any financial participation) from the matter, recognizing that screening will not always be feasible. Because no specific facts were presented, the committee gave only this general guidance.

Currency note

This opinion was issued in 1988, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who represented a government agency later appear against it?

A: Per the opinion, yes, in matters in which he had no substantial responsibility while in government (DR 9-101(B)) and in which he would not reveal or misuse the agency's confidences or secrets (DR 4-101). Where different agencies and different matters are involved and he holds no relevant confidences, there is no problem.

Q: Is the former government lawyer's new firm automatically disqualified if he is?

A: No. The committee read DR 5-105(D) not to require automatic vicarious disqualification when a former government employee is involved. The firm may take the matter if the lawyer is effectively screened off, including from any financial share in it.

Q: What about appearing before the former agency when it is acting as a decision-maker, not an opponent?

A: The committee said that situation is governed only by DR 9-101(C), which bars stating or implying an ability to improperly influence a tribunal or official; the successive-representation analysis does not apply when the lawyer is not opposing the agency.

Background and rules framework

The opinion applied DR 4-101 (confidences and secrets of a client or former client), DR 9-101(B) and (C) (former public employees and claims of improper influence), and DR 5-105(D) (imputed disqualification). These map today to Model Rule 1.11 (current and former government officers and employees, including the screening provision in 1.11(b)), Model Rule 1.9 (duties to former clients), Model Rule 1.6 (confidentiality), and Model Rule 1.10 (imputation within a firm). The committee treated DR 9-101(B) plus DR 4-101 as approximating the substantial-relationship test for former government lawyers.

Citations and references

Rules of Professional Conduct:

• DR 4-101 / Model Rule 1.6 and 1.9 (confidences and secrets; duties to former clients)
• DR 9-101(B) and (C) / Model Rule 1.11 (former government employee; improper influence)
• DR 5-105(D) / Model Rule 1.10 and 1.11(b) (imputed disqualification; screening)

Cases:

• Kesselhaut v. United States, 555 F.2d 791 (Ct. Cl. 1977) (screening avoids automatic firm disqualification)
• Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (vicarious disqualification not automatic for former government lawyers)
• Masiello v. Perini Corp., 394 Mass. 842 (1985) (SJC had not adopted the substantial-relationship test)
• In re Asbestos Cases, 514 F.Supp. 914 (E.D. Va. 1981) (screening not always feasible)

Other opinions cited:

• ABA Formal Opinion 342 (1975): screening of former government lawyers
• MBA Opinions 75-7, 76-14, 78-14, 86-1, 88-1: successive and simultaneous representation

See also

• MA Bar Ethics Op. 88-4: A departed lawyer's imputed conflict
• MA Bar Ethics Op. 89-4: Screening a lateral lawyer who joins a government office
• MA Bar Ethics Op. 88-1: A firm representing a school board while opposing town police

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1988-opinion-no-88-2/opinion-no-88-2