Is a law firm disqualified from representing a client when a state agency official with regulatory power over that client joins the firm?

Plain-English summary

Opinion E-79-1 addressed a firm that had for years represented a major client in matters subject to the regulatory jurisdiction of a Wisconsin state agency. The firm was considering adding a person who then sat on the agency's decision-making body and had recently been involved in decisions on issues directly related to the client. The firm proposed that the official first resign the agency post and be strictly barred from participating in representing the client on any matter over which he had substantial responsibility as a public employee. The question was under what circumstances, if any, the firm would be disqualified from representing the client.

The committee first pointed to the public-official rules: Section 19.45 (Code of Ethics for public officials), noting interpretation lies with the Ethics Board, and Section 757.29 of the Wisconsin Statutes (the attorney's oath). Treating the State of Wisconsin as the lawyer's client, it analyzed the question under Canons 4 (confidences and secrets), 5 (independent professional judgment), and 9 (avoiding even the appearance of professional impropriety), including DR 9-101(B), which bars a lawyer from accepting private employment in a matter in which he had substantial responsibility as a public employee.

Drawing extensively on ABA Formal Opinion 342 (1975), the committee held that all members of the firm are charged with avoiding the appearance of impropriety, but that this does not mean the firm is irrevocably disqualified. Adopting Opinion 342's screening analysis, it concluded that where the government agency is satisfied that screening measures will effectively isolate the individual lawyer from participating in the matter and from sharing the fees attributable to it, and that there is no appearance of significant impropriety affecting the government's interests, the agency may waive the firm's disqualification; and provided the firm also makes its own determination that no significant appearance of impropriety exists, the firm is not in violation by continuing the representation. The committee's overall conclusion was that in any instance in which the former official would be disqualified under Sections 19.45 and 757.29 and Canons 4, 5, and 9 as interpreted by ABA Formal Opinion 342, each member of the firm would be disqualified in like manner.

Currency note

This opinion was issued in 1979, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code of Professional Responsibility (Canons 4, 5, and 9 and the associated Disciplinary Rules) together with Wisconsin Statutes Sections 19.45 and 757.29. Successive-government-service conflicts are now addressed by SCR 20:1.11 / Model Rule 1.11, which includes screening provisions, and imputation by SCR 20:1.10 / Model Rule 1.10. 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: Does a firm become disqualified when a former agency official joins it?

A: The committee concluded that the firm is disqualified to the same extent the former official is, that is, in any matter over which the official had substantial responsibility as a public employee and would be disqualified under the public-official statutes and Canons 4, 5, and 9.

Q: Can the firm's disqualification be cured?

A: Yes. Following ABA Formal Opinion 342, the committee said the government agency may waive the firm's disqualification where it is satisfied that screening will isolate the lawyer from the matter and its fees and there is no significant appearance of impropriety, provided the firm makes its own independent determination to the same effect.

Q: What must the screening accomplish?

A: The committee adopted Opinion 342's standard that the screening must effectively isolate the individual lawyer from participating in the particular matter and from sharing in the fees attributable to it.

Background and rules framework

The opinion interpreted the former Code's Canons 4, 5, and 9 and DR 9-101(B), along with the firm-wide imputation principle in footnote 2 of ABA Formal Opinion 342 and the limited screening application Opinion 342 adopted, in the context of a former public official entering private practice. The current counterparts are SCR 20:1.11 / Model Rule 1.11 (former and current government officers and employees, including screening) and SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / SCR 20:1.11 (successive government and private employment; screening)
• Model Rule 1.10 / SCR 20:1.10 (imputation of conflicts)
• Former Code Canons 4, 5, 9; DR 9-101(B) (as cited in the opinion)

Statutes:

• Wis. Stat. § 19.45 (Code of Ethics for public officials)
• Wis. Stat. § 757.29 (attorney's oath)

Other opinions cited:

• ABA Formal Opinion 342 (1975): government lawyers, firm disqualification, and screening
• 1 Op. Eth. Bd. 125 (1978)

See also

• WI Ethics Op. E-80-20: Representation For and Against a County
• WI Ethics Op. E-81-2: City Attorney on the Insurance Carrier's Board
• WI Ethics Op. E-80-1: Drafting a Will for a Partner's Spouse

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-79-1.pdf