I used to work at a state agency that was investigating someone my firm now represents. Can I work on that client's criminal and civil matters, or must I be screened?

Plain-English summary

The inquiring attorney was a former employee of a state agency. During that employment, the agency conducted an ongoing investigation of "A." The attorney stated that, while aware of the investigation, he did not personally participate in it and had no knowledge of confidential information about A. The attorney had since joined a law firm that represents A, and had not worked on any of A's cases. He asked whether he could participate in representing A in the pending criminal investigation and in the related non-criminal civil matters arising out of the same transaction.

The panel analyzed the inquiry under Rule 1.11 (Successive Government and Private Employment). Rule 1.11(a) provides that, except as law expressly permits, a lawyer shall not represent a private client in a matter in which the lawyer participated as a public officer or employee, and that no lawyer in the firm may undertake or continue the representation unless the disqualified lawyer is screened, is apportioned no part of the fee, and written notice is promptly given to the agency. Rule 1.11(b) provides that a lawyer who was employed by a government agency shall not represent a private client before that agency for one year following the end of the employment.

The panel found that, as a result of the state employment, the inquiring attorney learned specific information regarding A and A's case, and it treated the attorney as having participated in the matter. It concluded that the inquiring attorney may not personally represent A in the criminal charges, but that the firm may continue to represent A in the criminal matter if the attorney is screened, is apportioned no part of the fee, and proper notice is given to the agency.

As to the civil matters, the panel concluded that Rule 1.11(a) also prohibits the inquiring attorney from representing A, because he participated in meetings where the case was discussed and became aware of the situation through his agency employment. The panel cautioned the attorney regarding Rule 1.6 (Confidentiality of Information), and stated that the firm may continue representing A in the civil matters under Rule 1.11(a) so long as the attorney is properly screened, is apportioned no part of the fee, and proper notice is given. The panel noted that its guidance is limited to the Rules of Professional Conduct and does not reach the State Ethics Code or other laws.

Currency note

This opinion was issued in 1995, 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 the successive-government-employment provisions of Rule 1.11. 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.

Common questions

Q: Can a former government lawyer personally represent a private client in a matter he handled in government?

A: Under this opinion, no. The panel concluded that Rule 1.11(a) bars the lawyer from personally representing the client in a matter in which the lawyer participated as a public employee, and it applied that bar to both the criminal and the related civil matters.

Q: Can the lawyer's firm still take the case?

A: Yes, subject to conditions. The panel stated the firm may continue the representation if the disqualified lawyer is screened from the matter, is apportioned no part of the fee, and written notice is promptly given to the government agency.

Q: Is there a separate one-year restriction?

A: Yes. The panel noted that Rule 1.11(b) prohibits a lawyer who was employed by a government agency from representing a private client before that same agency for one year after leaving the employment.

Background and rules framework

The opinion applies Rule 1.11 (Successive Government and Private Employment) and cautions under Rule 1.6 (Confidentiality of Information), corresponding to Model Rules 1.11 and 1.6. As the panel quoted it, Rule 1.11(a) imposes a personal disqualification on a lawyer who participated in a matter as a public employee and permits the firm to continue only through screening, fee isolation, and notice to the agency; Rule 1.11(b) adds a one-year bar on appearing before the former agency. The panel expressly limited its analysis to the Rules of Professional Conduct, not the State Ethics Code.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (successive government and private employment)
• MR 1.6 (confidentiality of information)
• RI RPC 1.11, 1.6

Statutes:

• None cited. (The panel noted, without citing, the separate State Ethics Code, which it declined to interpret.)

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 89-01: Part-Time State Employment and a Firm's Claims Against the State
• RI EAP Op. 2016-02: Former City Solicitor Representing Private Clients Before City Boards
• RI EAP Op. 2013-04: City Council Member Representing Clients Before the City

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%2095-33.pdf

Original opinion text

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

Final

ETHICS ADVISORY PANEL
OPINION # 95-33 - REQUEST # 598
ISSUED - OCTOBER 12, 1995

The inquiring attorney is a former employee of a state agency. During that employment, there was an ongoing investigation of "A" within the agency. The inquiring attorney states that while he/she was aware of the investigation, he/she did not personally participate in the investigation of "A" and has no knowledge of any confidential information about "A." The inquiring attorney is currently employed at a law firm which represents "A." While at the law firm, the inquiring attorney has not worked on any of "A's" cases and has not participated in any of "A's" matters. The inquiring attorney asks whether he/she may participate in the representation of "A" in connection with the pending criminal investigation and also the non-criminal civil matters arising out of the same transaction on which the criminal investigation is based.

The issues raised by this inquiry invoke Rule 1.11 of the Rules of Professional Conduct entitled "Successive Government and Private Employment." That Rule provides in pertinent part as follows:

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public officer or employee. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule

(b) Notwithstanding any other provisions of this Rule, a lawyer who has been employed by any government office or agency shall not represent a private client before that government office or agency for a period of one year following the termination of such employment.

As a result of being employed at the state agency, the inquiring attorney learned specific information regarding A and A's case. Rule 1.11(a) clearly states that a lawyer shall not represent a private client in connection with a matter in which the lawyer participated as a public employee. Further, the law firm may not continue the representation of A unless the former government lawyer is screened from the matter. In addition, Rule 1.11(b) prohibits an attorney who was employed by any government agency from representing a private client before that same agency for a period of one (1) year. While the inquiring attorney may not represent A in the criminal charges, the law firm may continue to represent A in the criminal matter if the inquiring attorney is properly screened from the matter and is apportioned no part of the fee and proper notice is given to the state agency in accordance with the rule.

With regard to the civil matters, Rule 1.11(a) prohibits the inquiring attorney from representing A because he/she participated in meetings whereby the case was discussed. The inquiring attorney became aware of the situation by virtue of his/her employment with this agency. The Panel cautions the inquiring attorney regarding Rule 1.6 "Confidentiality of Information." The law firm is able to continue representing A in the civil matters under Rule 1.11(a) so long as the inquiring attorney is properly screened from this matter and is apportioned no part of the fee and proper notice is given to the state agency in accordance with the rule.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have bearing on the issue raised by this inquiry.