I'm a state lawyer working on a matter. Can I send a job application to a firm that was involved as counsel in that same matter?

Plain-English summary

The inquiring attorney is currently employed with the State of Rhode Island. Law firm A was initially involved as counsel for a party in a matter in which the attorney is participating, and law firm B later succeeded law firm A in that same matter. The inquiring attorney contacted law firm A regarding future employment; an attorney at firm A said this may not be feasible because firm A may be involved in the matter again. The inquiring attorney asked whether it would be ethically appropriate to send an application for employment to law firm A.

The panel said Rule 1.11(d)(2) ("Successive Government and Private Employment") addresses the inquiry, and quoted it: except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party, or as attorney for a party, in a matter in which the lawyer is participating personally and substantially.

The panel concluded the inquiring attorney cannot solicit employment with law firm A, because the attorney participated personally and substantially in a matter with firm A while serving as a public employee, which Rule 1.11(d)(2) directly prohibits. It noted the comment to the rule, which explains that unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service.

In practice

Under this opinion, a state-employed lawyer may not send a job application to, or otherwise negotiate for private employment with, a firm that is involved as counsel in a matter the lawyer is handling personally and substantially. The opinion applies Rule 1.11(d)(2) to bar the contact with firm A while the lawyer is participating in the matter, citing the comment's concern about unfair advantage from access to confidential government information.

Common questions

Q: Can I apply to a firm that's involved in a case I'm working on as a government lawyer?

A: Per the opinion, no; Rule 1.11(d)(2) bars a public officer or employee from negotiating for private employment with a party or a party's attorney in a matter the lawyer is participating in personally and substantially.

Q: Does it matter that firm A was succeeded by firm B?

A: Per the opinion, the panel still found the bar applies because the attorney participated personally and substantially in the matter with firm A, and firm A may be involved again.

Q: Why does the rule prohibit this?

A: Per the opinion, the comment explains that unfair advantage could accrue to the private client from access to confidential government information about the client's adversary obtainable only through the lawyer's government service.

Background and rules framework

The opinion applies Rhode Island Rule 1.11(d)(2) (successive government and private employment; negotiating for private employment), corresponding to Model Rule 1.11, and its comment on unfair advantage from confidential government information. The panel found personal and substantial participation with firm A and applied the rule's direct prohibition on negotiating employment with a firm involved in the matter.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (successive government and private employment)
• RI RPC 1.11(d)(2); comment to Rule 1.11

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-63: City Solicitor and Successive Government/Private Work
• RI EAP Op. 92-39: Former Government Investigator Barred Under 1.11
• RI EAP Op. 92-70: Screening Within a Municipal Solicitor's Office

Currency note

This opinion was issued in early 1993 (Opinion 92-91, issued January 13, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.11 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended Rule 1.11 (special conflicts of interest for former and current government officers and employees). 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-91.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-91, Request #331
Issued January 13, 1993

An attorney seeks Panel advice with regard to Rule 1.11 as it relates to seeking employment with a law firm. The attorney is currently employed with the State of Rhode Island. Law firm A was initially involved as counsel for a party in a matter in which the attorney is participating. Subsequently, law firm B succeeded law firm A in this same matter. The inquiring attorney has contacted law firm A regarding future employment with the firm. The attorney at law firm A advised the attorney that this may not be feasible because law firm A may be involved in this matter again. The attorney asks whether it would be ethically appropriate to send an application for employment to law firm A.

The Panel believes that Rule 1.11(d)(2) entitled "Successive Government and Private Employment" addresses this inquiry. The Rule states that:

(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially...

The Panel believes that the inquiring attorney cannot solicit employment with law firm A. The attorney participated personally and substantially in a matter with law firm A while serving as a public employee which is directly prohibited by Rule 1.11(d)(2). The comment to the Rule states that unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service.