If a newly hired government lawyer once represented a private party, can the rest of the government law office act against that party?
Apply this to your situation
This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A city solicitor asked whether he could advise a city employee about proposed action by the city against a private party, given that he had recently hired a new attorney who had previously represented that private party on two matters, one involving the very property at issue. The new attorney was not working on anything for the private party when hired.
The committee applied the substantial-relationship test it had set out in Opinion 88-2 (which addressed the reverse case of a government lawyer joining a private firm). If the prior representation and the present matter are not substantially related, and the new attorney holds no relevant confidences or secrets of the private party, then he is not disqualified and there is no problem with the city solicitor advising the city employee. If, however, the matters are substantially related or the new attorney holds relevant confidences or secrets, the new attorney is personally disqualified from the matter.
The committee then addressed imputed disqualification under DR 5-105(D). It declined to read that rule literally, noting (as in the government-to-private-firm context) that many courts and ethics committees, citing ABA Formal Opinion 342 and cases such as Kesselhaut and Armstrong v. McAlpin, do not apply automatic vicarious disqualification where former government employees are involved, relying instead on effective screening that includes financial screening. The committee found the public-policy considerations even stronger here, because strict imputation would disqualify the entire city law department from handling the city's legal affairs, and it cited United States v. Caggiano and Model Rule 1.11(c) and Comment, which reject vicarious disqualification in these circumstances. It concluded that if the new attorney is personally disqualified, the city solicitor may still advise the city employee provided the new attorney is effectively screened from any participation in the matter. The committee limited its advice to the professional-responsibility rules, expressly not opining on G.L. c. 268A and not addressing screening when a lawyer moves between private firms.
Currency note
This opinion was issued in 1989, 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: When is the newly hired government lawyer personally disqualified?
A: The committee said only if his prior representation of the private party was substantially related to the present matter, or he holds confidences or secrets of the party relevant to it. Otherwise he is not disqualified.
Q: Does the new lawyer's disqualification spread to the whole city law office?
A: No, not automatically. The committee declined to apply DR 5-105(D) literally and concluded the city solicitor may advise the city if the new attorney is effectively screened from the matter, including financial screening.
Q: Why treat a lawyer joining a government office differently?
A: The committee said the public-policy considerations are even stronger than in the private-firm context, because strict imputation would disqualify the entire city law department from its work, and it pointed to Model Rule 1.11(c) rejecting vicarious disqualification here.
Background and rules framework
The opinion applied the substantial-relationship test for duties to a former client and DR 5-105(D), the Massachusetts imputed-disqualification rule. Those correspond today to Model Rule 1.9 (duties to former clients), Model Rule 1.10 (imputation), and Model Rule 1.11 (current and former government lawyers, including the screening provision in 1.11(c)). The committee declined to interpret G.L. c. 268A, the conflict-of-interest statute.
Citations and references
Rules of Professional Conduct:
- DR 5-105(D) / Model Rule 1.10 (imputed disqualification)
- Model Rule 1.9 (duties to former clients; substantial-relationship test)
- Model Rule 1.11(c) (screening of former and current government lawyers)
Statutes:
- G.L. c. 268A (conflict-of-interest statute; the committee declined to interpret it)
Cases:
- Kesselhaut v. United States, 555 F.2d 791 (Ct. Cl. 1977); Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980); United States v. Caggiano, 660 F.2d 184 (6th Cir. 1981); In re Asbestos Cases, 514 F. Supp. 914 (E.D. Va. 1981) (screening and vicarious disqualification)
Other opinions cited:
- ABA Formal Opinion 342 (1975); MBA Opinions 88-2 and 89-2 (government-lawyer conflicts and screening)
See also
- MA Bar Ethics Op. 91-2: Volunteer prosecutor programs and a firm's criminal defense work
- MA Bar Ethics Op. 91-7: Former prosecutor representing the victim in a related civil suit
Source
Get today's answer for your situation
You just read a 1989 opinion on this question. Ezel checks the current Massachusetts Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.