I used to be a prosecutor and handled this defendant's case. Now in private practice, can I represent him at his parole hearing, can my firm take it if I'm screened, and can I collect a referral fee if I send it out?
Apply this to your situation
This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney, formerly with the Department of the Attorney General and now in private practice at a firm, was asked to represent an individual at an upcoming parole hearing. While at the Attorney General's office, the attorney had represented the state at that individual's arraignment and pre-trial conference. The attorney asked (A) whether he could represent the individual at the parole hearing, and (B) if not, whether he could receive a referral fee from an attorney to whom he referred the matter.
The panel concluded that both Rule 1.9 (former client) and Rule 1.11 (successive government and private employment) were implicated, because the attorney would oppose his former client, the state. The two rules differ in one significant respect: Rule 1.9(a) permits a former client to consent to an adverse representation, but Rhode Island's Rule 1.11(a), unlike the ABA Model Rule and the counterpart rules in most jurisdictions, contained no express provision for government consent. Because the two rules conflicted, the panel concluded (following ABA Formal Opinion 97-409) that Rule 1.11 occupied the field and defined the obligations of former government lawyers, operating as an absolute bar to the attorney's proposed representation absent a law permitting it.
The panel reasoned that because participation as a government lawyer is a complete bar to later private representation in that matter even when the lawyer will not oppose the government, it follows that a lawyer who proposes to switch sides and oppose the government must also be barred, notwithstanding Rule 1.9's waiver provisions. As to the firm, the panel concluded that other lawyers in the firm were not disqualified so long as the notice and screening requirements of Rule 1.11(a)(1) and (2) were met, including that the inquiring attorney receive no part of the fee. Finally, the panel concluded that the attorney could not receive a portion of the legal fee if he referred the matter outside his firm, reasoning that such a prohibition is implied by Rule 1.11(a)'s requirement that a disqualified lawyer be apportioned no part of the fee when a firm colleague handles the matter.
Currency note
This opinion was issued in February 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.9, 1.10, and 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. Subsequent rule amendments or later opinions may have changed the analysis, and Rhode Island's Rule 1.11 may no longer read as it did here. 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 prosecutor represent, in private practice, a person he once prosecuted?
A: Not in the same matter. The opinion concluded that Rule 1.11(a) was an absolute bar to the former prosecutor personally representing the individual at the parole hearing, absent a law otherwise permitting it.
Q: Could the government consent to the representation?
A: No. The opinion noted that Rhode Island's Rule 1.11(a), unlike the ABA Model Rule, contained no express provision for government consent, so the bar could not be waived by consent as a Rule 1.9 former-client conflict could.
Q: Can another lawyer in the former prosecutor's firm handle the matter?
A: Yes, with safeguards. The opinion allowed firm lawyers to undertake the representation if the screening and notice requirements of Rule 1.11(a)(1) and (2) were met, including that the disqualified lawyer receive no part of the fee.
Q: Can the disqualified lawyer take a referral fee if he sends the case to another firm?
A: No. The opinion concluded he could not share the legal fee if he referred the matter to a lawyer outside his firm, reasoning that the prohibition is implied by Rule 1.11(a)'s no-fee requirement for disqualified lawyers.
Background and rules framework
The opinion applied Rhode Island Rules of Professional Conduct 1.9 (Model Rule 1.9), 1.10 (Model Rule 1.10), and 1.11 (Model Rule 1.11) as originally adopted. Rule 1.9 governs duties to former clients, including the former client's ability to consent. Rule 1.11(a) barred a lawyer from representing a private client in a matter in which the lawyer participated as a public officer or employee, and permitted the lawyer's firm to proceed only with screening and prompt written notice to the government agency. Rule 1.11(c) restricted use of confidential government information. The opinion relied on ABA Formal Opinion 97-409 (1997) for the conclusion that Rule 1.11 occupies the field to the exclusion of Rule 1.9(a) and (b), and cited The Law of Lawyering (Hazard and Hodes) and a Kansas ethics opinion on former-government-lawyer conflicts.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.11 / RI RPC 1.11(a), 1.11(c) (successive government and private employment)
- Model Rule 1.9 / RI RPC 1.9 (conflict of interest: former client)
- Model Rule 1.10 / RI RPC 1.10 (imputed disqualification)
Other opinions cited:
- ABA Formal Op. 97-409 (1997) (Rule 1.11 occupies the field for former-government-lawyer conflicts): the panel's controlling authority
- Kansas Bar Assn. Ethics Advisory Comm. Op. 96-07 (1996) (former government lawyer must treat the government as a former client)
See also
- RI EAP Op. 99-13: Agency lawyer adverse to a city
- RI EAP Op. 99-07: Child-support agency conflicts and imputation
- RI EAP Op. 99-19: Fee split with a suspended lawyer
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%2099-04.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Final
Rhode Island Supreme Court
Ethics Advisory Panel
Opinion No. 99-04, Request No. 776
Issued February 11, 1999
Facts:
The inquiring attorney, formerly an attorney in the Department of the Attorney General, is
currently in private law practice in a law firm. The attorney has been asked to represent an individual at
the ACI at an upcoming parole hearing. When he/she was working at the Attorney General's office, the
inquiring attorney represented the state at the individual's arraignment and at his/her pre-trial conference.
Issue Presented:
The inquiring attorney asks (A) whether he/she may represent the individual at the parole
hearing, and (B) if not, whether he/she may receive a referral fee from another attorney to whom he/she
refers the matter.
Opinion:
(A) Rule 1.11(a) prohibits the representation by the inquiring attorney. Other lawyers in the law
firm may undertake the representation provided they comply with Rule 1.11(a)(1)and (2). (B) If he/she
refers the matter to a lawyer outside of the law firm, the inquiring attorney may not share the legal fees
connected with the referred matter.
Reasoning:
The inquiring attorney will oppose his/her former client, i.e. the state, in the proposed
representation. Therefore, Rule 1.9 entitled "Conflict of interest: Former client" must be considered.
See Kansas Bar Assoc. Ethics Advisory Comm. Op. 96-07(1996)(former government lawyer in
private practice must treat government as former client and must comply with Rule 1.9 on former client
conflicts); Geoffrey C. Hazard, Jr. And W. William Hodes, The Law of Lawyering, S1.11:201, at
354.1 and 354.2 (2d ed. Supp. 1998)(normal confidentiality and conflict of interest rules apply to
former government lawyer when subsequent representation is adverse to government). In addition,
because the inquiring attorney is a former prosecutor,
Rule 1.11 is also applicable.
Rule 1.9 states in pertinent part:
Rule 1.9. Conflict of Interest: Former Client. - A lawyer who has formerly
represented a client in a matter shall not thereafter:
Final Op. 99-04
Page 2
(a) represent another person in the same or a substantially
related matter in which that person's interests are materially
adverse to the interests of the former client unless the former
client consents after consultation; or
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a client or when the
information has become generally known.
Rule 1.11 provides as follows:
Rule 1.11. Successive Government and Private Employment. -
(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.
***
(c) Except as lawyer may otherwise expressly permit, a lawyer having
information that the lawyer knows is confidential government
information about a person acquired when the lawyer was a public
officer or employee, may not represent a private client whose interests
are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person.
***
Final Op. 99-04
Page 3
In this inquiry, the inquiring attorney participated personally and substantially as a former
prosecutor in the individual's criminal prosecution. Both Rule 1.9 and Rule 1.11 would prohibit the
proposed representation, with one significant difference. Rule 1.9(a) permits a former client to consent
to an adverse representation after consultation. On the other hand, Rule 1.11(a), unlike Rule 1.11(a) of
the ABA Model Rules of Professional Conduct and the counterpart rules in most other jurisdictions,
contains no express provision for the consent by a government entity. The fact that the two rules
conflict with one another leads the Panel to conclude that both rules were not intended to apply to this
situation. See ABA Standing Comm. On Ethics and Professional Responsibility, Formal Op. 97-409
(1997). The Panel further concludes that Rule 1.11(a) more appropriately defines the obligations of
former government lawyers, and absent a law which otherwise permits the representation, operates as
an absolute bar to the proposed representation by the inquiring attorney.
Rule 1.11 is the result of compromises intended to address the potentially burdensome effect
on the government if the conflicts of interest of a former government attorney were imputed to other
lawyers in his/her law firm pursuant to Rule 1.10. See Comments to Rule 1.10.
The compromise achieved in Rule 1.11 is both more and less stringent
than the comparable provisions of Rules 1.9 and 1.10. It is more
stringent in that the former government lawyer may be barred from
participation in certain matters even when the representation does not
involve opposing the government or "switching sides." It is less
stringent in that, even when the former government lawyer is himself
barred, a private firm to which he moves is not barred, so long as the
lawyer is screened from participation in the matter. [footnote
omitted] Hazard and Hodes, at 351.
Under Rule 1.11(a), participation in a matter as a government lawyer is a complete bar to
subsequent representation of a private client in connection with that matter. A bar to representation
under the rule is applied even if the lawyer will not oppose the government in the subsequent
representation of a private client. The Panel is of the opinion that if a former government lawyer who is
not opposing the government in a subsequent representation would be absolutely barred from the
representation under Rule 1.11(a), then it follows that a former government attorney who proposes to
change sides and oppose the government in a subsequent representation must also be barred from the
representation, notwithstanding the waiver provisions contained in Rule 1.9. This supports the Panel's
conclusion that Rule 1.11, and not Rule 1.9(a) or (b), is the controlling provision in this inquiry. See
ABA Standing Comm. On Ethics and Professional Responsibility, Formal Op. 97-409 (1997) (Rule
1.11 occupies the field to exclusion of Rule 1.9(a) and (b) for former government lawyer conflicts of
interest
Final Op. 99-04
Page 4
obligations.) Accordingly, except as law may otherwise permit, the inquiring attorney is disqualified from
representing the individual at the parole hearing.
Members of the inquiring attorney's new law firm are not disqualified from the representation
as long as the notice and screening requirements of Rule 1.11(a)(1) and (2) are followed, including the
requirement that the inquiring attorney not receive any part of the fees connected with the
representation.
The inquiring attorney would not be permitted to receive a portion of the legal fee in the matter
if he/she refers the matter to an attorney outside his/her law firm. The Panel is of the opinion that such a
prohibition is implied by the requirement stated in Rule 1.11(a) that an attorney who is disqualified
thereunder could not be apportioned any part of the fee were a lawyer in his/her firm to undertake the
representation.
The Panel's guidance is restricted to interpretations of the Rules and does not extend to issues
of the State Ethics Code or any other rules, regulations or laws that may have a bearing on the issues
raised by this inquiry.
Get today's answer for your situation
You just read a 1999 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.