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The Indiana Supreme Court Disciplinary Commission issued a nonbinding advisory opinion Thursday discussing when a lawyer who is a current or former government worker should decline to accept a legal matter due to a conflict of interest.
The advisory opinion is focused on Rules of Professional Conduct 1.9, 1.10 and 1.11.
In short, the commission said a lawyer should not participate in a legal matter if the lawyer was “personally and substantially” involved in the matter as part of their government role; if the lawyer learned “damaging confidential information” about a person involved in the matter; and if the representation would involve revealing information that all attorneys are prohibited from disclosing under rules regarding duties to former clients.
The commission noted in its advisory opinion that the duty of loyalty in an attorney-client relationship requires the protection of information related to the representation.
“However,” the commission wrote, “because the conduct of government employees implicates public interest in a way that private practice usually does not, there are nuances to the conflict analysis.”
For lawyers who are former government employees and are deciding whether a conflict exists, the commission said they should first examine whether the matters at issue are the same.
“Did the government employee’s work for the government agency rise to the level of a matter or not?” the commission wrote. “Are the same parties involved? Was the former government employee personally and substantially involved?”
The lawyer should next examine whether they learned confidential information about a person through their role as a government employee that could be used to damage the person in the new matter. The commission noted that “person” under Rule 1.11 includes natural persons and legal persons, such as corporations.
If the answers to those questions are “no,” the commission said the lawyer “likely is free” to represent the client, assuming other factors under the customary Rule 1.9 analysis don’t apply.
The commission also recommended a screening process for partners at law firms who want to avoid “having imputed to them” the conflicts of a colleague who is a former government employee. The screening should include ensuring that the conflicted attorney doesn’t participate in the matter; that no information on the matter is shared between the conflicted attorney and other members of the firm; that the conflicted attorney earns no part of the fee; and that the former government agency of the conflicted attorney is given sufficient notice of the situation so it can determine compliance.
Generally, the commission wrote, the following rules should be followed:
- Absent informed and written consent from the agency, a lawyer who formerly worked in public service, as a lawyer or otherwise, shall not represent a client in the private sector when, as a public employee, the individual was personally and substantially involved in the matter, regardless of whether the private client’s interests align with or are in opposition to the government’s interest.
- Matters involve discreet sets of facts and parties and do not include broad subject areas, such as rule and regulation drafting.
- When analyzing conflicts of former government employees, there is no “substantially related” matter analysis; the analysis turns only on whether the matter is the same.
- Absent knowing consent from the agency and their former client, current government employees shall not participate in matters in which they were personally and substantially involved while in the private sector.
- It is not a waivable conflict for a lawyer who possesses confidential government information, not otherwise known by the public, about a third person to represent an opposing party in a matter when the specific information learned during government employment could be used to damage that person. That information must be actually known by, and not simply imputed to, the lawyer.
- Absent effective screening and notice, conflicts are imputed to the lawyer’s firm or agency.
- With limited exceptions, government employees who are lawyers shall not negotiate for employment with a party or private attorney in a matter while personally and substantially involved in the matter.
The commission laid out three possible ethical minefields, including defining what a “matter” is, personal and substantial involvement, and confidential government information.
Those scenarios, along with how lawyers and firms should respond, can be found here.
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