Ethics Opinion 313
Whether a Lawyer May Continue to Represent a Client When That Lawyer Represented the Same Client in the Same Matter While Serving as a Public Officer or Employee
A former defense lawyer with the Navy Judge Advocate General’s Corps may continue, in private practice, to represent in post-conviction proceedings the same criminal defendant whom he had represented as appointed counsel during the court martial. Even though his subsequent representation of the client is for the same matter in which he had participated personally and substantially while a public employee, he has not accepted “other employment” within the meaning of Rule 1.11 when he continues to represent the same client in the same matter after leaving military service.
Applicable Rule
- Rule 1.11 (Successive Government and Private Employment)
Inquiry
For over a year, a partner in the inquiring law firm had served as co-counsel in representing a lance corporal in the United States Marine Corps throughout the pre-trial and trial phases of his court-martial proceeding. The defendant was also represented by a criminal defense attorney appointed from the Navy Judge Advocate General’s Corps (“JAG”). After the defendant was convicted and sentenced, his JAG criminal defense attorney was released from active duty and became an associate with the law firm that presents this inquiry. The partner who had served as co-counsel during the court martial has left the firm, and the defendant expressed an interest in having his former JAG lawyer, now a civilian, continue to represent him during various post-trial proceedings, which could include an appeal, a petition to the Board for Correction of Naval Records, and a petition for clemency. The former JAG lawyer, who is a member of the Bar of the District of Columbia, requested an opinion from the Navy concerning whether his continued representation of the defendant was prohibited by 18 U.S.C. § 207, and the Navy concluded that it was. According to the opinion, because he had participated “personally and substantially” as an officer throughout a “particular matter” in which the United States was a party, he could not communicate with or appear before the military authorities on behalf of the same specific party in connection with the same matter.
The law firm requested an opinion from this Committee regarding whether Rule 1.11 of the District of Columbia Rules of Professional Conduct prohibited the firm (as well as the JAG lawyer himself) from representing the defendant. While this request was pending, the United States Court of Appeals for the Armed Forces reversed the position originally articulated by the Navy with respect to the applicability of section 207. Relying on long-standing precedent from the United States Court of Military Appeals interpreting the scope of section 207 in this context, the court concluded that the defendant’s civilian counsel could continue to represent him during further review of the court-martial proceeding.
Discussion
The Ethics in Government Act, 18 U.S.C. § 207, and Rule 1.11 apply in similar ways to restrict post-Government employment.1 Under Rule 1.11, a lawyer may not “accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.” The Ethics in Government Act uses similar terms in prohibiting any person, after leaving federal employment, from making any communication to or appearance before any officer or employee of any department, agency, etc. on behalf of any other person in connection with “a particular matter” (1) in which the United States is a party or has a direct and substantial interest, (2) in which the person “participated personally and substantially as such officer or employee” and (3) “which involved a specific party or specific parties at the time of such participation.” 18 U.S.C. § 207(a)(1)(A)-(C) (emphasis added).2
There are, of course, differences between the two requirements: Section 207 is a criminal statute that applies to any former officer or employee of the executive branch of the United States or of the District of Columbia. Rule 1.11, by contrast, is a rule of professional conduct that applies only to members of the D.C. Bar. Moreover, section 207 prohibits covered persons only from knowingly making “any communication to or appearance before” any department or agency of the federal or D.C. governments.3 Rule 1.11’s prohibition extends beyond communicating or making an appearance: it forbids anyone covered by the rule to “accept other employment” in connection with the same or substantially related matter. As Comment [5] explains, Rule 1.11(a) incorporates an “absolute disqualification of a lawyer from matters in which the lawyer participated personally and substantially.”4
This is not a typical Rule 1.11 case. Even though the former JAG lawyer was a “public officer or employee” while serving as a lawyer in the military, his “client” in the “matter” was never the United States government. As an appointed defense counsel, his client was, throughout all relevant periods, the defendant. Rule 1.6(j) provides that, “[t]he client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.” The Rules of Professional Conduct governing attorneys in the Navy expressly provide that “[a] covered [United States Government] attorney who has been duly assigned to represent an individual who is subject to disciplinary action or administrative proceedings, or to provide legal assistance to an individual, has, for those purposes, an attorney-client relationship with that individual.” 32 C.F.R. § 776.32(a)(6). Moreover, “[n]otwithstanding a judge advocate’s status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the [Department of the Navy] is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client.” Id. § 776.56(a)(1).
The United States Court of Appeals for the Fifth Circuit has described the analogous relationship between a Navy JAG lawyer and the individual “clients” to whom he provides legal advice through the Navy’s formal legal-assistance program:
A legal assistance officer’s function . . . is significantly different from that of other government lawyers. Rather than being charged with public matters in which the government is the client, a legal assistance attorney owes a preeminent duty to the private individual who, in effect, retains him. Under section 1906(c) of the Navy Judge Advocate General’s Manual, for example, [the JAG lawyer] was required “to exercise his independent professional judgment on behalf of his client within the standards promulgated in the Code of Professional Responsibility….” 32 C.F.R. § 726.6(c) (1975).5
The District of Columbia Rules of Professional Conduct recognize the unusual situation where a government lawyer’s client is not the government itself but an individual person. Comment [38] to Rule 1.6 recognizes that this relationship presents a special set of confidentiality issues:
Government lawyers may also be assigned to provide an individual with counsel or representation in circumstances that make clear that an obligation of confidentiality runs directly to that individual and that subparagraph (d)(2)(A), not (d)(2)(B), applies.6 . . . Examples of such representation include representation by a public defender, a government lawyer representing a defendant sued for damages arising out of the performance of the defendant’s government employment, and a military lawyer representing a court-martial defendant.
D.C. Rule 1.6, Comment [38] (emphasis added). The Navy’s regulations recognize, for example, that “a judge advocate is a military officer required by law to obey the lawful orders of superior officers,” 32 C.F.R. § 776.56(b)(1), and that “[n]ot all direction given to a subordinate covered attorney is an attempt to influence improperly the covered attorney’s professional judgment,” id. § 776.56(b)(2). Yet, when a JAG lawyer “is assigned to represent an individual client, neither the attorney’s personal interests, the interests of other clients, nor the interests of third persons should affect loyalty to the individual client,” id. § 776.56(b)(1).
In the case that triggered this inquiry, the United States Court of Appeals for the Armed Forces concluded that the former JAG lawyer could continue to represent the defendant during further review of the court-martial, citing United States v. Andrews, 21 C.M.A. 165 (1972). In Andrews, the United States Court of Military Appeals considered a factual situation nearly identical to that presented by the inquirer. Mr. Andrews, who had been represented by a JAG lawyer during a general court-martial proceeding, sought to retain the same lawyer after he had been released from active duty. The Chief of the Military Affairs Division in the Judge Advocate General’s office had concluded that the former JAG lawyer was barred from further representation by section 207, and Mr. Andrews appealed this decision on the grounds that he had been denied the civilian counsel of his choice, as guaranteed by the Uniform Code of Military Justice. The Court of Military Appeals agreed, concluding that “a Judge Advocate General Corps officer released from active duty may continue to act for an accused as a civilian immediately after his release.” 21 C.M.A. at 168. The court reasoned that this “opinion conforms with our view of the applicable law” and that the former JAG lawyer’s “continued participation harbored no conflict of interest, since the parties to that relationship remained the same.” Id.7
Of course, the rule governing successive government and private employment is not limited to instances where the former government employee “switches sides.”8 The American Law Institute has described three justifications for the prohibition contained in Rule 1.11, even where there has been no side switching:
First, prohibiting representation in a matter, even where consistent with the government’s interests, diminishes the risk of subsequent misuse of information obtained by the government. If a former government lawyer could make use of confidential reports to an agency, for example, even in a cause that was consistent with the government position, it would go beyond the original purpose for making the reports and make it more difficult for the government to obtain voluntary disclosures from members of the public. Second, the rule removes an incentive to gain later advantages through methods of gathering information that are available only to the government, such as a grand-jury investigation. Third, the rule removes an incentive to begin proceedings as a government agent with a view to obtaining a subsequent advantage in private practice, such as by filing a complementary action for a subsequent private client.
Restatement of the Law Governing Lawyers § 132 cmt. d (2000). Each of these justifications for the prohibition contained in Rule 1.11 assumes that the former government lawyer was acting as a lawyer whose client was the government itself. See id. (describing the prohibition as applying even though “the subsequent representation is not adverse to the interests of the former government client”).
It is not immediately obvious, however, that it should make any difference whom the former government lawyer had as a client. The fact that the former JAG lawyer’s client was an individual defendant and not the government does not change the fact that the former JAG lawyer was, at the time he represented the defendant, a “public employee or officer.” This Committee recognized over twenty years ago, when interpreting DR 9-101(B)—the predecessor to Rule 1.11 under the D.C. Code of Professional Responsibility—that the prohibition on successive government and private employment does not turn on whether the former government employee was acting as a lawyer at the time of his or her government employment:
The fact pattern presented [is] unusual in one sense: the inquiring attorney was not a lawyer and was not serving as a lawyer when he was employed by the government. [The inquiring attorney was an economist while working for the government; after graduating from law school, he resigned from government service and joined a law firm.] Nevertheless, DR 9-101(B) covers situations of this type, if its other tests are met, since it refers to service as a “public employee” rather than a “public lawyer.” We regard the choice of terms as a deliberate and proper one, since a more typical case may involve a lawyer who serves in an administrative capacity in the government and then leaves to resume the practice of law. We have little doubt that the Code bars a lawyer from undertaking a representation in a matter in which he exercised substantial responsibility while a public official, even if that responsibility was not that of a lawyer.
D.C. Bar Op. No. 84, at 150 (1980). If it does not matter that the former government employee was acting as a lawyer at all, why might it matter that he was acting as a lawyer for an individual defendant rather than for the government?
The answer, we believe, is found in the term “other employment” under Rule 1.11(a). To trigger the prohibition under Rule 1.11, it is not enough that a former government employee work on a matter which is the same as or substantially related to a matter in which he or she participated personally and substantially as a public officer or employee; the former government employee must first have accepted “other employment in connection with” the same or substantially related matter.9 In our view, under circumstances in which the former government lawyer continues to represent in private practice the same client with whom the lawyer had established an attorney-client relationship while serving as a public officer or employee and in the same or substantially related matter, the former government lawyer has not accepted “other employment” within the meaning of Rule 1.11(a).
The comment to Rule 1.11 makes clear that the identity of the client is a critical question when determining when the former government lawyer has accepted “other employment”:
“Other employment,” as used in paragraph (a) of this Rule, includes the representation of a governmental body other than the agency of the government by which the lawyer was employed as a public officer or employee, but in the case of a move from one government agency to another the prohibition provided in paragraph (a) may be waived by the government agency with which the lawyer was previously employed. As used in paragraph (a), it would not be “other employment” for a lawyer who has left the employment of a particular government agency and taken employment with another government agency (e.g., the Department of Justice) or with a private law firm to continue to accept representation of the same government agency with which the lawyer was previously employed.
D.C. Rule 1.11 Comment [10]. If it would not be “other employment” for the former government lawyer to continue to represent in private practice the same government agency with which he or she had been previously employed, it would not constitute “other employment” for the former government lawyer to continue to represent in private practice the same individual client whom he or she represented while employed by the government.
This Committee concluded over twenty-five years ago that there are two primary purposes underlying the prohibition reflected in DR 9-101(B):
One is to prevent the appearance that a lawyer in public employment may have been influenced in his actions as a lawyer by the hope of later personal gain in private employment rather than by the best interests of his public client. The second purpose is to prevent the appearance that a lawyer may be utilizing for the benefit of a private client confidential information obtained in a prior attorney-client relationship with a public agency having interests in conflict with those of his private client.
D.C. Bar Op. No. 16, at 82 (1976).10 We conclude that none of the purposes underlying Rule 1.11 would be served by interpreting the term “other employment” to prohibit the former JAG lawyer in this inquiry from continuing to represent his client in subsequent court-martial and other related proceedings. We see no danger that the former JAG lawyer’s conduct as a JAG defense lawyer would appear to be improperly influenced by the prospect that he might one day continue to represent the same defendant in the same matter once he were to become a civilian. The best interests of the former JAG lawyer’s employer—the Department of the Navy’s JAG Corps—are served by his having provided “competent, diligent, and prompt representation to [his] client” (32 C.F.R. § 776.20(a)). And it is just such service that would make it likely that his client would seek to retain him after he leaves military service. Furthermore, we perceive no risk that the former JAG lawyer would use confidential information obtained through his public employment for the benefit of a private client. With respect to the same matter in which he represented the individual defendant, he did not have an attorney-client relationship with the United States government. Therefore, any information that he obtained with respect to this matter was information that he would have used for the benefit of his client, regardless of whether he was employed by the Navy or by a private law firm.
Moreover, both this Committee and its ABA counterpart have recognized that there are substantial countervailing considerations that counsel against a broader prohibition under Rule 1.11 than necessary:
Some of [these] underlying considerations…are the following: the ability of government to recruit young professionals and competent lawyers should not be interfered with by imposition of harsh restraints upon future practice nor should too great a sacrifice be demanded of the lawyers willing to enter government service …; and the rule should not be permitted to interfere needlessly with the right of litigants to obtain competent counsel of their choosing, particularly in specialized areas requiring special, technical training and expertise.
D.C. Bar Op. No. 111, at 191 (emphasis added) (quoting ABA Formal Opinion No. 342 (1975)). We believe that these considerations are particularly significant where, as here, applying the rule would disrupt an ongoing attorney-client relationship.
In sum, we conclude that, where a government lawyer has, as part of his or her government employment, lawfully established an attorney-client relationship with an individual client, it does not constitute “other employment” for that lawyer to continue to represent the individual client in the same or in a substantially related matter once that lawyer is no longer a government employee.11 Under these unusual circumstances, Rule 1.11 would not prohibit the former government employee from representing the client in the same matter in which that employee participated personally and substantially while working for the government.
Inquiry No. 01-10-22
Adopted: June 2002
Published: June 2002
1. Comment [2] to Rule 1.11 expressly recognizes that “[i]n the District of Columbia, where there are so many lawyers for the federal and D.C. governments and their agencies, a number of whom are constantly leaving government and accepting other employment, particular heed must be paid to the federal conflict-of-interest statutes. See, e.g., 18 U.S.C. Chapter 11 [§§ 201-225] and regulations and opinions thereunder.” See also D.C. Bar Op. No. 297 (discussing “as a threshold matter” the applicability of section 207 before considering the applicability of Rule 1.11).
2. In 1986, this Committee acknowledged that it had proposed certain modifications to Rule 1.11—modifications that the Court of Appeals accepted—“with the purpose of conforming the language of the disciplinary rule to that used in 18 U.S.C. 207(a), the Ethics in Government Act. The Committee did not intend the change in language to have a significant, practical effect. Thus, what the Committee stated in interpreting ‘substantial responsibility’ still is relevant in determining whether the inquirer here ‘participated personally and substantially’ in the cases described by her inquiry.” D.C. Bar Op. No. 177, at 294 (1986). Since then, both the Court of Appeals and this Committee have sought guidance on the meaning of Rule 1.11 by reference to regulations and opinions construing section 207. See, e.g., In re Sofaer, 728 A.2d 625, 643 (D.C. 1999) (interpreting the meaning of the condition under Rule 1.11(a) that the former government lawyer had participated “personally and substantially” in the government matter by seeking guidance from federal regulations interpreting the same phrase in 18 U.S.C. § 207); D.C. Bar Op. No. 297, at 177 n.3 (recognizing that “personal and substantial participation” has been defined by the Office of Government Ethics when interpreting section 207 in 5 C.F.R. § 2637.201(d)(1))
3. See 5 C.F.R. § 2637.201(b)(3) (“An appearance occurs when an individual is physically present before the United States in either a formal or informal setting or conveys material to the United States in connection with a formal proceeding or application. A communication is broader than an appearance and includes for example, correspondence, or telephone calls.”); In re Sofaer, 728 A.2d at 641 (recognizing that the Office of Government Ethics “concluded that because Respondent had not yet contacted any government officials with the intent to influence them in connection with his Libyan representation, he had not violated [18 U.S.C. § 207]”).
4. In contrast to the ABA’s Model Rule 1.11, D.C. Rule 1.11 has no provision for waiver.
5. Woods v. Covington Cty. Bank, 537 F.2d 804, 815 (5th Cir. 1976).
6. Subparagraph (d)(2) provides that, “A lawyer may use or reveal client confidences or secrets . . . (A) when permitted by these rules or required by law or court order; and (B) [i]f a government lawyer, when permitted or authorized by law.” D.C. Rule 1.6(d)(2).
7. For the most recent expression of the court’s position on this issue, see United States v. Nguyen, 56 M.J. 252, 252 (C.A.A.F. 2001).
8. See, e.g., General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974) (in suit by city against bus manufacturer alleging nationwide conspiracy, city’s private lawyer who had substantial responsibility for investigating same conspiracy while at the Justice Department was disqualified); Allied Realty, Inc. v. Exchange Nat’l Bank, 283 F. Supp. 464 (D. Minn. 1968), aff’d, 408 F.2d 1099 (8th Cir. 1969) (former special assistant U.S. Attorney in criminal cases involving mortgage transactions was disqualified from representing plaintiff in civil suit to set aside the transactions).
9. We note that Rule 1.11 of the ABA’s Model Rules of Professional Conduct does not use the same formulation. Under the Model Rule, “a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. . . .” This is just one of several significant ways in which D.C. Rule 1.11 differs from the ABA’s Model Rule. See generally Grant Dawson, Conflict of Interest: Working Guidelines for Successive Conflicts of Interest Involving Government and Private Employment, 11 Geo. J. Legal Ethics 329, 338-39 (1998) (detailing the many differences between the D.C. Rule and the Model Rule); id. at 338 (“The District of Columbia’s version of Model Rule 1.11 is important because it differs significantly from its ABA counterpart and because it probably governs more lawyers than any other non-federal rule”).
10. The ABA’s Standing Committee on Ethics and Professional Responsibility described these same two purposes as follows: “Rule 1.11 is thus concerned 1) to limit the possibility that a lawyer might be tempted to use the power of public office to secure for herself lucrative private employment after leaving government service, and be distracted from her current public duties by the prospect of eventually going to work for the other side; and 2) to ensure against the possibility that ‘substantial unfair advantage could accrue to the private client by reason of access to information about the client’s adversary obtainable only through the use of public resources available during the lawyer’s government service.’” ABA Formal Opinion No. 409 (1997) (citations omitted; quoting from Model Rule 1.11, Legal Background at 76 (Proposed Final Draft, May 30, 1981)).
11. This conclusion applies not only to former JAG lawyers, but also to former public defenders and to former federal officers and employees who were authorized, while working for the government, to represent particular individuals or groups of individuals, see 18 U.S.C. § 205.
