Summary: A city solicitor may give advice to a city employee with respect to proposed action by the city against a private party notwithstanding the fact that a new attorney in his office formerly represented the private party. If the new attorney represented the private party on a substantially related matter or has relevant confidences or secrets of the private party, then that attorney is personally disqualified. The city solicitor, however, may advise the city employee provided that the new attorney is screened off from any participation in the proposed action. If the new attorney did not represent the private party in a substantially related matter and has no relevant confidences or secrets, then neither the new attorney nor the solicitor is barred from advising the city employee.
Facts: A city solicitor has inquired about his ability to advise a city employee with respect to proposed action by the city against a private party. The city solicitor has recently hired a new attorney for his office. When hired, the new attorney was not working on any matter for the private party. He had, however, previously represented the private party on two matters, one of them involving the piece of property that is involved in the proposed action. The committee's advice about the propriety of advising the city employee has been requested.
Discussion: In Opinion 88-2, the Committee on Professional Ethics canvassed this issue in the reverse situation when a goverment lawyer joins a private law firm. As we stated, when the issue involves lawyer representation adverse to a former client, the committee applies the ''substantial relationship" test. Thus, if the issues in the new attorney's former representation of the private party and in the present matter are not substantially related and if the new attorney possesses no confidences or secrets of the private party that are relevant to the present matter, it would not be a violation of the rules of professional responsibility for him to advise the city employee. There would therefore be no problem on that score with the city solicitor's advising that city employee.
If, however, the matters are substantially related or if the new attorney does possess relevant confidences or secrets of the private party, he would be disqualified from advising the city. The question then arises whether his disqualification extends to the city solicitor under DR 5-105(D). That rule provides that "If a lawyer is required to decline employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept ... such employment."
In addressing the reverse situation of vicarious disqualification when a former government lawyer joins a private firm, we said:
Literally read, that rule would require vicarious disqualification of the firm. But the rule cannot be read literally in all cases because it would require disqualification of the whole firm if one lawyer in the firm could not ethically handle a matter because of incompetence or illness.
Many courts and ethics committees have concluded that the vicarious disqualification rule should also not be applied automatically to require disqualification in all cases where former government employees are involved. See ABA Formal Opinion 342 [l975] Kesselhaut v. United States, 555 F.2d 791, 793 (Ct. Cl. 1977), Armstrong v. McAlpin, 625 F.2d 433
(2d Cir. 1980), opinion vacated on other grounds, 499 U.S. 1106 (l98l). Those opinions reason that the interests of the public, both in maintaining public confidence in the judicial system and the legal profession and in avoiding the imposition of unnecessary obstacles to the government's recruitment of qualified lawyers, are appropriately reconciled and adequately protected by the use of effective measures to screen the former govermnent attorney from participation including financial participation, in the matter. The effectiveness of screening procedures will depend upon many factors and may not always be feasible. See In re Asbestos Cases, 514 F. Supp. 914 (E.D. Va. 1981), aff'd by an equally divided court, for one such case. We believe that these opinions are an appropriate and sensible interpretation of DR 5-105(D). However, since we do not have any particular facts presented for our consideration, we content ourselves with the general advice that vicarious disqualification ought not to be regarded as automatic in cases such as these. See also Opinion 89-2.
Similar considerations justify a rule permitting screening when a private lawyer joins a government office. The public policy considerations are stronger in this case because strict application of the vicarious disqualification principle would remove the entire government law department charged with the legal affairs of the city from carrying out its task. See United States v. Caggiano, 660 F.2d 184 (6th Cir. 1981) for a case refusing to disqualify the entire United States Attorney's office from prosecuting a defendant when one of his lawyers joined that office. The new Model Rules of Professional Conduct also refuse to apply a rule of vicarious disqualification in these circumstances. See Model Rule 1.11(c) and Comment.
We therefore advise that if the new attorney is personally disqualified from advising the city employee, the city solicitor may advise that employee himself without violating the relevant rules of professional responsibility, provided that the new attorney is effectively screened from any participation in the matter.
This advice is given only with respect to the rules of professional responsibility. The committee does not give any opinion with respect to the applicability of Chapter 268A. Nor does it address the question of "screening" when an attorney in private practice moves from one firm to another.
Permission to publish granted by the Board of Delegates on November 28, 1989. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.