V. RPC 1.11: FORMER AND CURRENT gOVERNMENT OFFICERS AND EMPLOYEES— SPECIAL CONFLICTS
Washington's RPC 1.11 covers special conflicts of interest for former and current government officers and employees. RPC 1.11 is identical to MRPC 1.11. The rule incorporates the general principles from RPC 1.7, 1.8. 1.9, and 1.10, and applies them in the specific context of current and former government officers and employees. The same overarching duties of loyalty and confidentiality still apply; however, the requirements to fulfill these duties vary somewhat when the lawyer is switching between private and government employment.
Like RPC 1.9, the appearance of switching sides is a key concern behind RPC 1.11. The purposes of the rule are similar to those applicable to private-to-private attorneys—the protection of the client—but the unique circumstances involved in government employment require somewhat different rules. The main purpose of RPC 1.11 is to prevent the lawyer from using any knowledge that was gained in confidence while a public employee to benefit a private client.963 However, there is also a desire to encourage former government lawyers to "bring their expertise to the private sector (and vice versa) without running afoul of the conflict-of-interest rules and without creating the appearance of impropriety."964 If attorneys were not given the additional leeway of such a rule, it would be harder for government agencies to attract and retain lawyers. Thus, Comment 4 to RPC 1.11 explains:
The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.
The rule regarding imputation of conflicts in the private sector, RPC 1.10, does not apply to government lawyers. Instead, RPC 1.11 controls, with imputation, screening, and notice provisions unique to the challenges presented in changing between private and government employment.965 "Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client."966 If not otherwise prohibited, RPC 1.11 allows an attorney to jointly represent a private party and a government agency as long as the representation comports with the requirements of RPC 1.7.967 "If conflicts involving a government agency are governed by more stringent statutory or regulatory requirements, they also apply."968
A. RPC 1.11(a): Former Public Officer or government Employee
RPC 1.11(a), rather than RPC 1.9(a) and (b), governs conflicts of interests involving lawyers who have left public employment for work in the private sphere.969
1. RPC 1.11(a)(1): Applicability of RPC 1.9(c)
The principles involved in RPC 1.11—that conflicts may arise when a lawyer switches between government and private employment and that the rules require some adjustment—have been recognized since long before the model rules were developed. In United States v. Standard Oil Co.,970 the United States sought disqualification of a law firm because a partner at the firm actively working on the case had previously been a government employee in a capacity to have obtained confidential information that could be used against the government.971 The ethical rules at issue at the time were canons prohibiting an attorney from subsequent employment that could adversely affect the interest of a former client "with respect to which confidence has been reposed."972 In Standard Oil, the U.S. District Court for the Southern District of New York stated:
[W]here an attorney has worked for a vast agency of the United States government ... it is hardly reasonable to hold that an appearance of evil can be found in his undertaking a case against the government where there is not some closer factual relationship between his former job and the case at hand other than that the same vast agency is involved.973
Finding the United States had failed to provide sufficient evidence requiring disqualification, the court denied its motion for disqualification.974 Similar principles have also long been recognized in Washington.975
At the same time, RPC 1.11 specifically includes the requirement that former government lawyers remain subject to RPC 1.9(c), which sets restrictions on the use or revelation of information relating to the representation of a former client.976 For a detailed analysis of RPC 1.9, see Section III., above.
Incorporating RPC 1.9(c), RPC 1.11 prohibits lawyers from revealing or using any information acquired in their former representation of the government that would disadvantage their former client and that is not generally known. These limitations prohibit revealing this information not only to others in a firm that represents clients with adverse interests but also to anyone to whom disclosure would disadvantage the government.977
As stated in WSBA Ethics Advisory Opinion 1402 (1991), representation would be impermissible when an attorney sought to bring a class action suit against a state agency for which he previously worked as a law clerk, alleging a violation of federal law by the agency that the lawyer had "discovered ... while employed by the agency and unsuccessfully brought the issue to the agency at that time." Representation of the class would likely be found to violate RPC 1.6 and 1.9 as well as 1.11.
2. RPC 1.11(a)(2): Personally and Substantially
RPC 1.11(a)(2) provides that a lawyer subject to RPC 1.11 "shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation."
RPC 1.11(a)(2) prohibits a lawyer from subsequent private representation if the lawyer previously was involved "personally and substantially" in the matter while in public employment. This requirement differs from the requirement in RPC 1.9 regarding former clients that prohibits subsequent representation when the lawyer formerly represented a client in the "same or substantially related" matter. With regard to substantiality, the Restatement notes that it is "both formal and functional. A lawyer who signed a complaint on behalf of the government is substantially involved in the matter even if the lawyer knew few of the underlying facts. An action undertaken by a lawyer in the name of a superior is also within the rule."978
However, participation that is merely "tenuously and nominally" connected is not sufficient to require disqualification.979 In State v. Fleet, the defendant asserted his defense counsel had operated under a conflict of interest because his counsel had previously served as prosecutor "in an unrelated welfare fraud matter."980 Noting the two matters to be "wholly unrelated," the court found no actual conflict of interest involved under RPC 1.11.981
The WSBA considered an inquiry from a lawyer who had previously served in various elected capacities for a municipality, including as mayor, but never formally as its lawyer.982 At the time of the inquiry, the lawyer was no longer involved with the municipality but was considering representations of private clients in matters involving the municipality. The WSBA noted that "[t]he 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.'"983 Regarding the determination whether the lawyer had participated "personally and substantially," it was stated that "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."984
"Matter." In addition to the requirement that the former government lawyer participated "personally and substantially," the representation must have been in a "matter." RPC 1.11(e) defines "matter" as "(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict-of-interest rules of the appropriate government agency." See Section V.E., below. Although Rule 1.11(e) does not expressly use the phrase "same or substantially related matter," however, courts and ethics committees have tended to rely on that phrase as analyzed in cases under Rule 1.9.985
Because RPC 1.11 is identical to the model rule, decisions from federal jurisdictions are also illustrative, although care needs to be taken to make sure that the particular jurisdiction follows MRPC 1.11, as Washington does. Even when the language of the rule differs, however, cases applying it may be helpful when Washington has not clarified specific language. For example, in United States v. Philip Morris, Inc.,986 a former government lawyer who spent 382 hours working on a matter found to be substantially related to a private action he sought to work on against the government was disqualified. District of Columbia RPC 1.11 provides, "(a) A lawyer shall not accept other...
