Ethics Opinions

Opinion No. 88-2

February 1988

Summary: A former government attorney may appear in a matter on the opposite side of his former agency if the matter is not one in which he had substantial responsibility while in that agency if he does not misuse confidences or secrets of the agency. If the former government attorney is disqualified from opposing his former agency in a particular matter, his firm is not automatically disqualified as well under DR 5-105(D) but may, in an appropriate case, appear against the agency if the former government employee is "screened off" from participation in the matter.

Facts: A lawyer who has been counsel to a municipal agency inquires what restrictions exist on his ability, and on the ability of members of his firm, to perform legal work before that agency and other agencies of the town when he joins a private firm.
Discussion: As a preliminary matter it should be noted that this inquiry may raise issues under Chapter 268A, the state's conflict of interest law, but it is beyond the committee's jurisdiction to give advice about questions of substantive law.
Our response must be divided into two parts, relating first to the restrictions that exist on the former government attorney and then to the restrictions that exist on the firm that he joins. Within each division, we shall discuss the problems of appearance before the agency for which the attorney worked and also other agencies of the town. The key provisions of the disciplinary rules implicated by this inquiry are DR 4-101 and DR 9-101. DR 4-101(B) provides:
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person unless the client consents after full disclosure.
Under DR 4-101(C)(1) a lawyer may reveal, among other things, "Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them." The terms "confidence" and "secret" are defined in DR 4-101(A).
DR 9-101 provides:
(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
Activities of the lawyer himself as a member of the private firm: The committee has addressed the issue of the obligations of a lawyer seeking to represent a client against a former client on many occasions. See our Opinions 75-7, 76-14 and 78-14. Specifically, a lawyer has the obligation under DR 4-101 to keep the confidences of a client, and for those purposes the term "client" includes a "former client." The committee, following the great bulk of substantive law throughout the country, has also advised that the test for deciding whether a lawyer may represent a new client against a former client is the "substantial relationship" test, that is, the lawyer may not represent a new client against a former client if the matter is substantially related to the subject matter of the prior representation.
Since the committee has issued these opinions, however, the Supreme Judicial Court has introduced an element of uncertainty by stating that it has not yet decided whether it would adopt the substantial relationship test as its guide in successive representation cases. Masiello v. Perini Corp., 394 Mass. 842, 848 n.5 (1985). At the moment, all the committee can do is to note the Supreme Judicial Court's hesitation. The committee continues to believe that the "substantial relationship" test is a sensible accommodation of the right of former clients to protection against a threat to their confidences and the right of new clients to have access to desired counsel. Unless and until some different rule is announced by the Supreme Judicial Court, we shall continue to render advice on the basis of the substantial relationship test.
The indecision of the Supreme Judicial Court in Masiello is less troublesome in responding to the present inquiry, however, for the court has given some guidance in the specific case of the former government attorney entering private practice. DR 9-101(B) specifically provides that the former government attorney should not accept private employment in a matter in which he had "substantial responsibility" while a government employee. The combination of that proscription with the further proscriptions against revelation and use of confidences in DR 4-101(B) approximates, at least in most cases, the substantial relationship test in the case of former government employees.
Since we do not know the particular matters in which the former employee may be involved before his former agency, our advice is limited to these general guidelines. In particular, we have not been asked whether "consent" of both parties after full disclosure could cure a conflict if DR 9-101 or DR 4-101 would otherwise be violated. We would prefer to have the facts of a particular inquiry before us before deciding whether we would still advise that consent alone would be sufficient, see Opinion 76-14, or whether some objective test must also be satisfied, as would be the case if simultaneous representation of conflicting interests were involved. See DR 5-105(C); Opinion 86-1.
The lawyer also inquires about his ability to appear before other agencies of the same municipality. We have responded to a similar inquiry in our Opinion 88-1. That inquiry, however, dealt with simultaneous representation problems while this inquiry deals only with successive representation problems. The latter raise much less serious loyalty problems. So long as different matters are involved, as would likely be the case where different agencies are involved, and the former government attorney has no relevant confidences or secrets of the other government agencies, there would be no problem in appearing in matters on the other side from such agencies.
Before moving to the second part of the inquiry, one other issue should be mentioned. The inquiry simply refers to appearance before a municipal agency that has certain adjudicative powers. It seems likely that the former government lawyer will be appearing before the municipal agency in two capacities, first in opposition to the agency and second appearing before it in opposition to a third party who is not a former client. To the extent that the agency is the opposing party, the former discussion applies. To the extent that the former government attorney is simply appearing before the agency in its role as a tribunal and is not opposing it, then the former discussion is not relevant and he should only be careful not to violate the provisions of DR 9-101(C).
Vicarious disqualification of the law firm: This part of the inquiry assumes that the former government attorney is disqualified under DR 4-101 and DR 9-101 by reason of his former employment and asks whether the law firm that he has joined is vicariously disqualified by reason of such disqualification. The issue is whether DR 5-105(D) automatically requires such disqualification. DR 5-105(D) provides that "If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment." 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 (1975); 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 (1981). 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 government 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.

Permission to publish granted by the Board of Delegates on January 22, 1988. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.