After serving as an elected mayor, when can a lawyer represent clients in matters involving the same municipality?

Plain-English summary

The inquirer had held various elected positions in a small municipality since 1996, most recently serving as Mayor from 1999 to December 2003 and managing all of the municipality's affairs, including its legal affairs. He became a WSBA member in 2000 but never served or was employed as the municipality's lawyer. No longer employed by the municipality, he asked what limits the RPCs placed on representing future clients in matters involving the municipality.

The committee said RPC 1.11 governs. Under RPC 1.11(a), a lawyer is disqualified (subject to consent from the former government employer) from representing a future client where the representation involves a matter in which the lawyer participated personally and substantially while employed by the governmental body; the matter need not have been one where the lawyer gave legal counsel, and can include other instances of personal and substantial participation. The committee described the test as whether the lawyer participated in some material respect with the facts, circumstances, or decision-making process of the matter that is now the subject of the proposed representation. Under RPC 1.11(b), a lawyer may not represent a prospective client in a matter if the lawyer obtained "confidential government information" about a person whose interests are adverse to the prospective client where the information can be used to the person's material disadvantage; the committee pointed to the definition of confidential government information in RPC 1.11(e) and described it generally as information about the adverse person that would not otherwise be discoverable or available to the public while the lawyer was employed by the agency.

Given the nature of the inquirer's positions and how recent the service was, the committee urged him to thoroughly scrutinize RPC 1.11 to avoid not only actual conflict but also an appearance of impropriety. It found there was insufficient information to decide the inquirer's two specific questions (whether he participated personally and substantially in any aspect of the prospective client's former employment with the municipality, though it appeared likely because he had been the prospective client's former supervisor, and whether he obtained confidential government information about the current elected official usable to that official's material disadvantage), so it did not provide an informal opinion on those two points. On the separate question of whether attorney-legislators or other elected officials are subject to the RPCs, the committee said it provides opinions only about the specific conduct of the inquiring lawyer.

Currency note

This opinion was issued in 2004, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The 2006 revisions reorganized RPC 1.11 (former and current government officers and employees). Subsequent rule amendments or later opinions may have changed the analysis, including how the rule treats the "appearance of impropriety" the committee mentioned. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee laid out the RPC 1.11 framework for a former elected official entering private practice. It said RPC 1.11(a) disqualifies the lawyer, absent the employer's consent, from a matter in which the lawyer participated personally and substantially while in office, including non-legal participation in the facts, circumstances, or decision-making. It said RPC 1.11(b), read with the RPC 1.11(e) definition, bars representation where the lawyer holds confidential government information about an adverse person usable to that person's material disadvantage. The committee declined to apply the framework to the inquirer's two specific questions for lack of facts, and it urged him to scrutinize RPC 1.11 carefully given the recency and breadth of his service.

Common questions

Q: Which rule limits a former mayor's later representations involving the city?

A: The committee said RPC 1.11 governs, covering both personal-and-substantial participation in a matter (1.11(a)) and possession of confidential government information (1.11(b)).

Q: Does the disqualifying participation have to be legal work?

A: No. The committee said the matter need not have been one where the lawyer provided legal counsel; RPC 1.11(a) can reach other instances where the lawyer participated personally and substantially in the matter.

Q: Can the former government employer consent to the representation?

A: The committee framed the RPC 1.11(a) disqualification as subject to consent from the former government employer.

Q: Did the committee decide the inquirer's specific situation?

A: No. It found insufficient facts to decide whether he participated personally and substantially or obtained confidential government information, so it did not opine on those two specific questions.

Background and rules framework

The opinion interprets RPC 1.11 (Model Rule 1.11, special conflicts for former and current government officers and employees), including subsection (a) on personal and substantial participation, subsection (b) on confidential government information, and the subsection (e) definition of that term. The committee applied the rule to a former elected official rather than a former government lawyer, emphasizing that the disqualifying participation can be non-legal.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Washington RPC 1.11(a) (former government officer; personal and substantial participation)
• Washington RPC 1.11(b), 1.11(e) (confidential government information and its definition)

See also

• ABA Formal Op. 97-409: Ex-Government Lawyer Conflicts
• ABA Formal Op. 509: Confidential Gov't Information
• WSBA Ethics Op. 1064: Former Agency Lawyer Screening

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1307

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2054
Year Issued: 2004
RPC(s): RPC 1.11
Subject: conflicts for lawyer who has served as a publicly elected official

The inquirer is a lawyer who since 1996 has served in various elected positions for a small municipality. Most recently, the inquirer served as Mayor from 1999 to December 2003 and was involved in managing all affairs of the municipality, including the municipality’s legal affairs. The inquirer became a member of the Washington State Bar Association in June of 2000, but neither served nor was employed as the lawyer for the municipality. The inquirer no longer is employed by the municipality and seeks guidance regarding limitations imposed by the Rules of Professional Conduct on his ability to represent potential clients in matters involving the municipality.

The inquirer’s ability to represent future clients in matters related to his former employment with the municipality is governed by RPC 1.11. Generally speaking, a lawyer is disqualified from representing a future client under RPC 1.11(a) (subject to consent from the former government employer) if the subject of the representation involves a matter in which the lawyer “participated personally and substantially” while employed for the governmental body. The matter need not have been an instance where the lawyer was providing legal counsel to the governmental body and can include other instances where the lawyer “participated personally and substantially.” For purposes of determining whether the lawyer “participated personally and substantially” in the matter, the inquiry should be whether the lawyer participated in some material respect with the facts, circumstances and/or the decision-making process of the matter that is the subject of the representation sought by the prospective client.

In addition, under RPC 1.11(b), a lawyer may not represent a prospective client in a matter if the lawyer obtained “confidential government information” about the person whose interests are adverse to the prospective client where such information can be used to the “material disadvantage” of the adverse person. For purposes of evaluating whether the information is “confidential government information”, the inquirer is directed to review the definition of “confidential government information” contained in RPC 1.11(e). Generally, however, whether a party has obtained confidential government information can be evaluated by inquiring whether the information about a person whose interests are adverse to the prospective client is information that otherwise would not be discoverable, disclosed or made available to the general public while the lawyer was employed by the governmental agency. However, given the nature of the inquirer’s positions with the municipality and the short period since this service, the committee urges the inquirer to thoroughly scrutinize RPC 1.11 to avoid not only actual conflict but also an appearance of impropriety.

Regarding the specific inquiries presented by the inquiring attorney, there is insufficient information to evaluate whether (1) the inquirer “participated personally and substantially” in any aspect of the prospective client’s former employment with the governmental body (though because the inquirer was the prospective client’s former supervisor it appears likely that such is the case) or (2) whether the inquirer obtained “confidential government information” about the current elected official that could be used by the prospective client to the “material disadvantage” of the elected official. Accordingly, an informal opinion regarding these two specific inquiries is not being provided at this time.

Regarding the inquiry about whether members of the Legislature (or other elected officials) who are attorneys are subject to the Rules of Professional Conduct, this Committee provides opinions only about the specific conduct of the inquiring lawyer.