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ETHICAL PRECEPTS AND ISSUES FOR

LOCAL GOVERNMENT ATTORNEYS

Local Government Attorneys of Virginia Fall Conference

October 15-16, 1998*



I. Duties of Government Attorneys



A. Should government attorneys be held to a higher standard of conduct than attorneys in private practice?



1. As a public official, he [the government attorney] seems to have a special obligation to every citizen that is very different from that which an ordinary lawyer has in serving a private client. Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625 (1979).



2. The responsibility of a public prosecutor differs from that of the usual advocate: his duty is to seek justice, not merely to convict. EC 8-10.



3. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and complete record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results. EC 8-11.



4. Government attorneys, by virtue of their unique position, owe a greater responsibility to the justice system. The courts have come to expect and have rightly demanded a higher degree of candor from government attorneys. Braun v. Harris, Unempl. Ins. Rep. (CCH) ¶ 17,070 at 2499-2500 (E.D. Wis. 1980), citing United States v. Ott, 489 F.2d 872 (7th Cir. 1973) and Berger v. United States, 295 U.S. 78, 80-84 (1935).



B. Interestingly, the DRs under Canon 8, which directs lawyers to assist in improving the legal system, exclusively address actions of lawyers holding public office and the special responsibilities of prosecutors and government lawyers. However, very few opinions of the VSB Standing Committee on Legal Ethics dealing with government lawyers actually cite Canon 8 as controlling authority.

II. Who is the Client?



A. A public official? A public agency? The "public interest"? See Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many? 46 Fordham L. Rev. 1049 (1978); Connecticut Comm'n on Special Revenue v.



* This outline is an updated adaptation of an outline Rhysa G. South and James M. McCauley prepared for the 1995 LGA Conference held at the Charlottesville Omni in November 1995. Barbara Ann Williams updated this material for presentation at the 1998 LGA Conference.



Connecticut Freedom of Information Comm'n, 387 A.2d 533 (Conn. 1978). The sovereign? All of the above, separately or jointly?



B. The answer is -- it depends. The public interest, the government itself, the agency the lawyer works for, and the official the lawyer advises have all been identified as the "client." See Lawry, Confidences and the Government Lawyer, 57 N.C. L. Rev. 625, 632

(1979). Distinctions must be drawn between the ordinary and the extraordinary, between some kinds of reasons for balking and others, and between levels of responsibility and authority within government. Wolfram, MODERN LEGAL ETHICS § 13.9.2 at 757 (1985); See also Crampton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 2 Geo. J. Legal Ethics 291 (1991).



1. In Legal Ethics Opinion ("LEO") 1128 (Oct. 14, 1988), the Virginia State Bar Standing Committee on Legal Ethics ("the Committee") declined to opine as to how a government attorney should determine the identity of his or her "client" because the Committee deemed the matter a legal issue that the Committee had no authority to settle. However, in LEO 1393 (Jan. 14, 1991)(reconsidered and reaffirmed March 21, 1991), the Committee treated both a local building official and the local board of building code appeals as "clients" since both were represented by a part-time County Attorney at a hearing requested by new homeowners alleging building code violations by the builder of their newly constructed home. Thus, the County Attorney and his private law firm could not defend the builder in a related civil action filed by the homeowners. Since the part-time County Attorney represented and advised the local building official and the local board of building code appeals, both of whom held the power to find the builder out of compliance with the building code, it was not obvious that the County Attorney could adequately represent the interests of the official, the board and the builder. Even the consent of all parties to the multiple representation would not cure the conflict. DR 5-105(A). Moreover, since the County Attorney and his private law firm had "substantial involvement" in their capacity as a government lawyer, it would have been improper under DR 9-101(B) for them to represent the builder in the related civil matter.



2. Among the proposed rules that the Virginia State Bar has petitioned the Virginia Supreme Court to adopt is Rule 1.13, a slightly revised version of ABA Model Rule 1.13. A copy of proposed Rule 1.13 is attached to this outline. In pertinent part, the proposed rule states: "A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents" (emphasis added). There is no direct counterpart to Rule 1.13 in the existing Virginia rules; the new rule makes what is now implicit explicit. If the Virginia Supreme Court approves adoption of the rule, it is not anticipated that it will become effective before January 1, 2000. Even with the new rule in place, ethical issues about who the client is will undoubtedly persist, as the comment to Model Rule 1.13 suggests:

[D]efining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Government lawyers, in many situations, are asked to represent diverse client interests. The government lawyer may be authorized by the organization to represent subordinate, internal clients in the interest of the organization subject to the other Rules relating to conflicts.



Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority.



3. Federal Ethical Consideration 5-1 states that the "immediate professional

responsibility of the federal lawyer is to the department or agency in which he is employed, to be performed in light of the particular public interest function of the department or agency." Accord Federal Bar Ass'n Prof. Ethics Comm'n Op. 73-1 (1973).



4. A government lawyer who is assigned to represent an agency employee is required to keep that client's confidences just as any other lawyer would be bound by the rules for maintaining client confidences. ABA Informal Op. 1413 (1978). On the other hand, the government lawyer is said to represent the agency, and not the employees as individuals. Thus an attorney-client relationship is not created merely because an official is employed by the agency which the attorney represents. District of Columbia Bar Op. 148 (1985)(lawyer not assigned to represent a particular employee).



5. One commentator believes that attempting to determine the identity of a government lawyer's "client" is a misdirected effort. Lawry, Who Is the Client of the Federal Government Lawyer? An Analysis of the Wrong Question, 37 Fed. Bar. J. 61 (1978). The government lawyer has obligations to many "people, entities, institutions, ideas, etc., that require special analysis depending on the context." Id. at 63. Determining who is the client may not answer from whom the lawyer should take direction on matters that are to be decided by the client, or whose interests the lawyer should advance, or whose confidences the lawyer is seeking to protect.



6. Two excellent law review articles addressing the issues of government representation are: Johnson & Pierce, To Whom Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in Conflict? 29 How. L.J. 540 (1986); and Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L.Rev. 1244, 1413-46 (1981).



III. Representation of Multiple Clients



Although the rules of professional responsibility are applicable to all practicing attorneys, because the duties of local government attorneys are typically defined by statutes, it is often difficult to precisely define the identity of the client and the resulting obligations of the local government attorney. The Virginia Code designates the local government attorney as counsel for numerous clients whose interests frequently conflict; consequently, there is potential for violating the Canon 5 conflict of interests rules. During these tight economic times, local governing bodies are often loathe to appoint outside counsel. As a result, local government attorneys may have to make tough ethical decisions. It is hoped that the following information will provide some guidance.



A. Potential Client List



1. Virginia Code §§ 15.1-9.1:1 and 15.1-19.2, which authorize county and city governing bodies to employ local government attorneys, set out a range of potential clients, including:



a. The governing body itself



b. A member of the governing body



c. A county department or agency



d. An officer of the locality



e. An employee of the locality



f. Any trustee or member of any board or commission appointed by the governing body.



2. To further broaden the range of potential clients, county or city attorneys may be designated as counsel for several additional enumerated groups:



a. A county before a board of supervisors (§ 15.1-550)



b. A city or town against traffic and criminal ordinance offenders

(§ 15.1-9.1:3)



c. Individual consumers under the Virginia Consumer Protection Act

(§ 59.1-201)



d. Taxpayers before a Board of Equalization (§ 58.1-3380)



e. The State Department of Social Services in civil proceedings concerning support obligations (§§ 63.1-274.4 and 274.9)



B. Canon 5 -- Conflicts of Interest Arising from Multiple Representations



Government attorneys have an extensive list of potential clients. That list is key to determining whether conflicts of interest exist under Canon 5 of the Virginia Code of Professional Responsibility. Of particular interest to the government attorney are the following excerpts from DR 5-105:



(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).



(C) In a situation covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.



. . .



(E) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.



The ethical considerations concerning multiple clients (EC 5-14 through EC 5-20) indicate that multiple representation can be proper in matters not involving litigation after the attorney has made full disclosure of potential conflicts.



C. Multiple Representations -- Applicable LEOs for Local Government Attorneys



The following LEOs provide some guidance to local government attorneys attempting to represent his or her statutorily defined clients in a multitude of situations.



LEO 394 (Nov. 14, 1980) -- The county attorney may represent the county before a local county retirement board even though the county attorney normally acts as legal advisor to the retirement board so long as the retirement board hires independent counsel and both the retirement board and the county consent after full disclosure.



LEO 495 (Sept. 3, 1982) -- An attorney can represent a student at a school board hearing even though his partner represents the county board of supervisors since the governmental agencies are separate entities. Based on the imputed disqualification rule under DR 5-105(E), the answer should be the same if the county attorney rather than his partner represented the student before the school board.



LEO 843 (Oct. 9, 1986) -- Absent retention of independent counsel by a county subdivision committee, the county attorney should not represent a developer in a subdivision application before the committee. (See also LEO 1086.)



LEO 1096 (Jan. 1988) -- A private attorney representing the Department of Social Services ("DSS") on a case-by-case basis could ethically simultaneously represent DSS and parents who are being prosecuted by DSS in unrelated matters so long as the attorney made complete disclosure to the parties and received consent from each. Note that the committee opined that, prior to undertaking such a representation, you must "believe that you may adequately represent the interest of each." This criterion coupled with the appearance of impropriety prohibitions in Canon 9 significantly limit the circumstances where an attorney can represent both DSS and parents who are prosecuted by DSS.



LEO 1145 (Oct. 24, 1988) -- In conclusory terms the committee opined that Va. Code § 15.1-550, which requires a county attorney to report to the Attorney General or state auditor any claim which the county attorney believes the governing body illegally paid, does not create a conflict with an attorney's ethical obligations. A similar result was reached in March't Taylor v. Matthews Co., 139 Va. 723, 736 (1924), where the court acknowledged that the local government attorney's duty to the county is paramount but held that he could represent a board unless it was in the county's interest to appeal a board decision. It was suggested that the county attorney should disclose to the board his statutory obligations and superseding duty to represent "the county" as a whole.



LEO 1209 (Feb. 16, 1989) -- Based on a board of supervisor's statutory authority to request a review of its agencies' rulings, it would be proper for the county attorney to represent the board of supervisors in its petition for review of a decision of the Board of Zoning Appeals, provided that the county attorney did not participate in the zoning board's review of the special use permit request at issue.



LEO 1393 (Jan. 14, 1991)(reconsidered and reaffirmed March 21, 1991) -- It would be improper for a county attorney to represent a developer who was challenging the findings of the Board of Building Code Appeals which the county attorney had earlier defended.



LEO 1422 (June 13, 1991) -- A member of the county attorney's office should not provide the Regional Transportation District Commission with general counsel services or specific legal services related to an agreement between the commission and the county which the county attorney's office represents. The Committee opined that the "foreseeability of future conflicts" rendered it "not obvious" that the county attorney could represent both interests. The Committee declined to decide whether a Chinese wall could be created within the county attorney's office to effectively screen the deputy county attorney representing the district commission from related county work.



LEO 1661 (Feb. 28, 1996)-- Where an incident gave rise to the possibility of a civil suit against a police officer for compensatory and punitive damages, and preliminary fact analysis indicated that the officer's actions were not so egregious as to take him outside the scope of his employment, a city attorney could represent the officer even though the city code provided that the city would not be responsible for payment of punitive damage awards. The Committee compared the situation to an insurance defense case, where an insurer provides a defense to the insured while disclaiming coverage for punitive damages. The Committee espoused the view that the question of multiple representation is best resolved by local government attorneys on a case-by-case basis.



LEO 1669 (April 1, 1996) -- While it is not per se improper for a part-time County Attorney to also serve as a part-time Assistant Public Defender, the Committee concluded that there maybe circumstances where conflicting multiple representations might occur, including where the county is the alleged victim of the crime being prosecuted or where the defendant is accused of violating local ordinances. Furthermore, if serving in a dual capacity, an attorney should refrain from participating in any budget issues impacting directly on the funding of law enforcement agencies.



LEO 1671 (April 1, 1996) -- The Committee found that an attorney serving in his capacity as both the Commonwealth's Attorney and the City Attorney had a conflict of interest in representing a builder on a felony charge while at the same advising the building inspector and representing the city's interest in a related civil matter.



LEO 1683 (Sept. 23, 1996) -- There is no conflict under DR 5-105 if a City Attorney, on behalf of the city administration, challenges a personnel board's application of rules to the facts of a particular grievance or the decision in a particular case, since those matters are not substantially related to any advice the City Attorney has given to the board in his capacity of representing the board in adopting and amending personnel rules. Note that in grievance hearings the board is represented by independent counsel. If, however, the City Attorney challenges a rule adopted by the board, there would be a conflict.



LEO 1698 (June 24, 1997) -- It is ethically permissible for a lawyer to represent

clients before a planning commission or a board of supervisors even though he served as a campaign treasurer, and his wife as a campaign manager, for one of the supervisors, provided that the does not state or imply that his or her service enables him improperly to influence the commission or board. However, the committee cautioned that specific factual circumstances may render political contributions by a lawyer to a court or other public officials before whom they practice, improper as they may create the appearance that the contributions have been made in order to influence official action.



IV. Communications with Government Employees and Officials



In this era of friendly customer service and broad access to information, local governments often enter into litigation against an opposing counsel who is armed with damaging statements taken from the localities' employees and officials. The rules of ethics, bolstered with well established policies governing contact with opposing counsel, provide the local government attorney with the best recourse available to prevent unlimited party admissions from losing your case before you get started.



A. Canon 7: Communicating With One of Adverse Interest



Private attorneys apparently feel that because a potential defendant is a local government employee or official, they should have carte blanche access to the employee or official. The following excerpts from DR 7-103 appear inapposite to this conclusion:



(A) During the course of his representation of a client a lawyer shall not:



(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.



(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.



(B) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.



Unfortunately, the following legal ethics opinions suggest that Canon 7 has been narrowly construed in local government practice.



B. Communications by Opposing Counsel -- Applicable LEOs For Local Government Attorneys



The handful of LEOs addressing communications with government employees and officials indicate that contact with employees and officials who are not named defendants or within the "control group" with authority to bind a local government entity may be approached ex parte by opposing counsel.



LEO 529 (Sept. 13, 1983) -- It is proper for an attorney to contact members of a governing body to petition for a position which is not in an antagonistic or adversarial context.



LEO 777 (April 22, 1986) -- It is proper to contact governmental employees who are fact witnesses. It is not proper to contact a Board member regarding litigation which is pending against the Board of Supervisors.



LEO 1504 (Dec. 14, 1992) -- A private law firm's paralegal could ethically obtain information under FOIA from a governmental agency which is adverse in pending litigation without notifying opposing counsel-- the attorney general. But see Parvin v. VDOT, Va. Cir. 349 (1989), where an FOIA request was denied in the context of threatened litigation based on the FOIA exceptions protecting attorney-client privilege and work product documents.



LEO 1537 (June 22, 1993) -- It was not improper for a child and his or her parents' counsel in an Individualized Education Program due process hearing to contact school board employees who were not in a position to bind the school board to a course of action. The committee opined that "the rule prohibiting an attorney's communication with adverse parties should be narrowly construed in the context of litigation with the government in order to permit reasonable access to witnesses for the purpose of uncovering evidence, particularly where no formal discovery process exists." Query: How broadly should this rule be construed in litigation where formal discovery is available?



C. Limiting Ex Parte Contacts With Your Clients



When can an adversary's attorney absent your consent contact the individuals on your list of potential clients about a litigation matter within the scope of their employment? The LEOs indicate that opposing counsel can contact "fact witnesses" (LEO 777) and those who are "not in a position to bind" the governmental entity (i.e., persons not in the control group) (LEO 1537). Based on the "control group" criteria in federal court the governmental attorney should be able to defend a policy of restricting contact with all employees. In state court litigation this policy cannot be defended based on the control group restrictions, but may be defended, in part, by defining a "mere fact witness" narrowly.



In Queensberry v. Norfolk & W. Ry., 157 F.R.D. 21 (E.D. Va. 1993), Judge Spencer found that DR 7-103 could be extended to virtually any corporate employee since the Federal Rules of Evidence have been amended to allow the use of any employee's statement against his employer as an admission if the statement concerns a matter within the scope of his employment and was made during the employment relationship. See FRE 801(d)(2). Judge Spencer ruled that because an employee might bind a corporation under this rule, it was fair that the employee's attorney ought to be present during an interview where an admission is made. The court found that the tension among the ethics of contacting an opponent's employees and the need for formal discovery was not an insurmountable barrier to an appropriate code of conduct. The court suggested that the tension could be resolved by asking the company's attorney or the court for permission to contact the employee if the attorney wanted to discuss a matter within the scope of employment.



In federal court the "control group" is extended under FRE 801(d)(2) to include all employees. The control group shrinks in size for state court corporate litigation and may disappear entirely when the litigation involves local government. Because only persons specifically designated by a legislative body or by statute are able to commit a government to a course of action, the "control group" may consist of only one member. Although access to governmental personnel in state court may be impossible to restrict under a control group theory, a strict reading of what constitutes a "fact witness" supports the communication restrictions.



Because the sovereign employer is generally immune from suit in state court, opposing counsel frequently searches for an employee to name as defendant. The criteria for immunity under Messina v. Burden, 228 Va. 301 (1984), make it likely that the named defendant in the suit will be a lower level employee. This employee would never be within the control group, but he or she could quickly turn from "fact witness" to named party. If a policy is established to discourage communications with opposing counsel, the governmental attorney could agree to allow the communication if immunity from suit is promised by opposing counsel as a condition to interviewing a purely fact witness.



Since plaintiff's counsel may ethically contact corporate (and by analogy county) personnel to investigate the validity of a claim (LEO 1190), how do you protect the client? A suggested method of damage control would be to advise all local employees and officers through well publicized policies that they are permitted, but certainly not required, to speak with attorneys conducting litigation against the locality or its officers or employees. They should be encouraged to refer any outside counsel inquiries to the local government attorney's office since the employee or officer providing the information may frequently find that they are changed from fact witness to named defendant after consulting with opposing counsel.

V. Scope of Representation



Requests for the local government attorney's legal advice comes in many forms and from many sources. An employee or official of the local government may request legal assistance in personal matters. Citizens frequently call requesting assistance with private matters or with their dealings with the government. When can you help? The LEOs provide some guidance in this area.



A. Scope of Representation -- Applicable LEOs for Local Government Attorneys



LEO 188 (June 17, 1982) -- It was improper for a local government attorney to defend a criminal case involving a local ordinance even if the attorney had no responsibility for prosecuting county ordinances.



LEO 581 (May 31, 1984) -- It was improper for a county attorney to represent persons charged with violations of county traffic ordinances. The basis for this opinion was DR 9-101-- the appearance of impropriety. This is true even where the local government attorney has no responsibility for the prosecution of violations of ordinances.



This opinion is tough where self-insured localities' drivers are charged with a traffic offense in the course of their employment. Where criminal charges are brought and the employee or official is found not guilty or the case is dismissed, the local government is statutorily authorized to reimburse outside counsel fees in defense of the proceedings. Va. Code § 15.1-19.2:1. Because violations of the motor vehicle code are traffic infractions rather than criminal charges, there is no comparable statutory authority authorizing reimbursement of the self-insured driver's legal fees. Id. at § 46.2-113. The government attorney is at a disadvantage due to the inability to provide traffic court representation to self-insured employee drivers. The employee will rarely voluntarily obtain private counsel. The government attorney may best serve the locality by explaining the civil consequences of pleading guilty, not guilty, or nolo contendere without creating an attorney-client relationship and hope for the best.



LEO 1464 (May 11, 1992) -- There was no ethical violation where the City of Virginia Beach charter designated the city attorney to render service to citizens proposing ordinances or amendments by popular petition. The Committee opined that even though the interest of the city council may be adverse to the citizens proposing the ordinance or amendment, the attorney could act as a scrivener for the citizens without creating an attorney-client relationship. The Committee found there was no violation of DR 7-103(A)(2) since the definition of "advice" in the context of an unrepresented party may be a fluid concept. Since proofing the ordinances and amendments as to form and drafting the documents in proper legal language did not amount to "advice," the city attorney was not engaging in misrepresentation or overreaching.



B. Can you help me with this little matter . . . ?



The local government attorney frequently does not carry private malpractice insurance. The lack of insurance may provide a face saving out for representation of government personnel and citizens in purely private matters. Of course, the attorney (like a police officer, municipal librarian, or social worker) can give legal information as opposed to legal advice to persons whom the attorney desires to help. But it is essential to caution the party that you cannot represent them and to point out the benefits of retaining counsel when giving "legal information" in order to avoid encouraging a layman to practice law. EC 3-8.



VI. Representation of Private Clients after Leaving Government Service



A. DRs 4-101, 5-105(D) and 9-101(B) control



1. DR 4-101 requires an attorney to protect the confidences and secrets of a client. This obligation continues after the termination of the lawyer's employment. EC 4-2.



2. DR 5-105(D) prohibits a lawyer who has represented a client in a matter to thereafter represent another client in the same or substantially related matter if the interests of the second client are adverse to the first, unless the first (former) client consents after disclosure.



3. DR 9-101(B) prohibits a lawyer from accepting private employment in a matter in which the lawyer had substantial responsibility while employed as a government attorney unless the former public entity consents after full disclosure.

4. Model Rule 1.11(b) provides that: "[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, unless the appropriate government agency consents after consultation" (emphasis added).



B. Statutory or Legal Restrictions



1. Virginia Code § 15.1-736.1 permits an urban county board of supervisors to implement a one-year disqualification rule for public officers and employees. For a period of one year following the cessation of their term of office or employment, officers and employees may not assist for remuneration a party with a proceeding, application, case, contract or other matter, if the former employee participated personally or substantially through decision, application or recommendation.



2. 18 U.S.C. § 207 prohibits former executive branch employees from engaging in representation regarding any matter in which the employees participated "personally and substantially" while so employed; provides for a two-year "cooling off" period; and restricts high level executive department employees from representing a client before, or communicating with, the government entity for which they served for one year following government service.



3. The U.S. Ethics Reform Act of 1989 states that, as of January 1, 1991, members of the U.S. House of Representatives may not engage in any paid professional services involving a fiduciary relationship, may not affiliate with a firm, and may not allow their names to be used by a firm.



C. Rationale for Disqualification



1. Avoids possibility that government lawyer's actions may be influenced by hope of later private employment to uphold or upset government actions in which he or she had been involved. But see Woods v. Covington County Bank, 537 F.2d 804, 814 (5th Cir. 1976), quoting ABA Op. 37, holding that attorney who undertook investigation of securities fraud while on temporary duty as a military lawyer did not disqualify lawyer from continuing to represent allegedly defrauded plaintiff ex-prisoners of war in subsequent litigation. See also ABA Formal Op. 342 (Nov. 24, 1975) at n.12.



2. Avoids any heightened public distrust because of a government attorney's unjust advantage through inappropriate use of government-derived information. Handelman v. Weiss, 368 F. Supp. 258, 263 (S.D.N.Y. 1973)(attorney who had been appointed by SEC to investigate activities of defendants in securities fraud is disqualified from subsequently representing plaintiffs); ABA Formal Op. 135 (March 15, 1935).



3. Guards against corrupt use of governmental power and avoids improper use of contacts gained during previous position with government.



4. Assists in the preservation of client confidences and secrets, thus safeguarding confidential governmental information from future use against the government. Cf. proposed Rule 1.11(f), which defines "confidential government information" as information which has been obtained under government authority and which, at the time the rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.



D. Test for Disqualification Under DR 5-105(D) and DR 4-101



1. Determine whether "substantial relationship" exists between the subject matter of the prior and present representations.



2. If so, determine if presumption of shared confidences obtained during prior representation can be rebutted.



3. If not, determine if presumption of shared confidences has been rebutted with respect to the present representation. Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983).



4. When are the prior and current legal matters "substantially related"? If the factual content of the two are the same, or arise from substantially the same facts, or are byproducts of the same transaction, or entail virtually a congruence of issues. See Smith v. Whatcott, 757 F.2d 1098 (10th Cir. 1985); In re Stokes, 156 Bankr. 181 (Bankr. E.D. Va. 1993); Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990); Chantilly Constr. Corp. v. John Driggs Co., 39 Bankr. 466 (Bankr. E.D. Va. 1984); Pasquale v. Colasanto, 14 Va. Cir. 54 (1988)



Whether current representation adverse to a former client is "substantially related" to the former representation is a fact-specific inquiry requiring a case-by-case determination. The Committee in LEO 1613 addressed "substantial relatedness":



[T]he committee has not established a precise test for substantial relatedness under DR 5-105(D). The committee, however, has previously declined to find substantial relatedness in instances that did not involve either the same facts (LEO 1473), the same parties (LEOs 1279 and 1516), or the same subject matter (LEOs 1399 and 1456).



5. The problem implicated by successive representation is the potential for the use of confidences gained from a former client to the detriment of that client or the failure to use information favorable to the present client in order to protect the confidentiality of the former client. If substantial relatedness exists between the matter in the former representation and the matter in the current representation adverse to the former client, there is a presumption that the attorney gained confidences and secrets in the former representation which could be used to the former client's disadvantage in the current representation. Rogers v. Pittston Co., 800 F. Supp. 350, 353-54 (W.D. Va. 1992), aff'd without op., 996 F.2d 1212 (4th Cir. 1993). There is no presumption, however, if the matters are not substantially related. Pasquale v. Colasanto, supra.



6. For a three-prong test, see Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979):



a. What was the scope of the prior representation?



b. Is it reasonable to infer that confidential information would have been given to a lawyer representing a client in those matters?



c. Is that information relevant to the issues in the pending matter?



7. The Legal Ethics Committee has repeatedly opined that the earlier representation of a former client who is now adverse to a current client is not per se sufficient to warrant disqualification on ethics grounds. See, e.g., LEOs 1194 and 1139.



8. Applicable LEOs



LEO 605 (Aug. 10, 1984) -- A former county attorney could not represent a defendant in a special use violation case when he had been county attorney at the time the county initially sued the defendant, caused the suit to be filed and was aware of its progress.



LEO 1299 (Sept. 13, 1990) -- Former federal regulatory agency attorney may ethically represent private party seeking to challenge agency rule making authority where attorney had substantial responsibility only in initial stage and the rule subject to challenge differed materially from the initial proposed rule in which attorney was involved.



LEO 1699 (Sept. 12, 1997) -- The Committee opined that by drafting a zoning ordinance, a former Assistant City Attorney vouched for its legal sufficiency, and later, in private practice for the benefit of a client, later challenge her own legal advice by way of a declaratory judgment seeking to have the amended and reordained ordinance declared invalid.



E. Disqualification under DR 9-101(B)



A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee unless the public entity by which he was employed consents after full disclosure (emphasis added).



1. Distinguish disqualification under DR 9-101 from conflict of interest rules under Canon 5



a. No explicit requirement of adversity or conflicting interests as between private client and former client (public entity).



b. No explicit cure is indicated to alleviate the appearance of impropriety created. However, effective February 1, 1993, the rule was amended to add the language "unless the public entity by which he was employed consents after full disclosure." Courts, however, have concluded that consent is not always controlling. See authorities cited, infra.



c. No vicarious disqualification of the affected lawyer's partners or associates is explicitly required. See, e.g., LEO 1334 (other lawyers in former law clerk's firm may be screened from the disqualified lawyer) and Oregon Op. 519 (June 1988)(other lawyers in former judge's law firm may handle matter for which judge had responsibility provided that former judge is screened from current participation).

2. What does public employee mean?



a. Government employee providing nonlegal services



i. Conn. Op. 89-7 (Feb. 16, 1989)(lawyer who worked for town government on a major commercial zoning project, prior to his admission to bar, may not, subsequent to his admission, represent developer in same matter)



ii. ABA Formal Op. 342 at n.19 (intent of DR 9-101(B) was to apply to lawyer whose former public or governmental employment was in any capacity regardless of whether it involved work normally handled by lawyers).



iii. Law professors or attorneys employed by state universities are not public employees. In re Appearance of Rutgers Attorneys Before Council on Affordable Housing, N.J. Sup. Ct., No. A-107 (August 2, 1989), 5 ABA/BNA Law. Man. on Prof. Conduct 286.



3. What does matter mean?



a. "[A] discrete and isolatable transaction or set of transactions between identifiable parties." ABA Formal Op. 342, n. 19; see also General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974).



b. Not limited to adjudicatory situations which involve the same facts, parties or transactions. LEO 1302 (Dec. 22, 1989)(opinion withdrawn after rejection by Virginia Supreme Court).



c. Substantial relatedness required. See Vermont Op. 86-1 (attorney previously employed by state agency may represent corporate client before state agency provided representation is not substantially related to matters handled while employed by agency).



d. General information not construed as the same matter. Caracciolo v. Ballard, 687 F. Supp. 159 (E.D. Pa. 1988)(lawyer's acquisition of superior knowledge of state agency's administrative procedures not sufficient to warrant disqualification).



e. "[M]atter" includes rulemaking. LEO 1299. Contra D.C. Bar Legal Ethics Op. 187, supra. Traylor v. City of Amarillo, 335 F. Supp. 423 (N.D. Tex. 1971); Mich. Op. CI-1149 (state lawyer's denial of permit precludes lawyer from subsequently representing private client in appealing the denial).

f. "[M]atter" is limited to adjudicative situations. ABA Formal Op. 342, n. 21 (work as government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws; or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101(B) from subsequent private employment involving the same regulations, procedures or points of law). Accord D.C. Bar Legal Ethics Op. 187, supra.



g. "[M]atter" includes 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 any other matter covered by the conflict of interest rules of the appropriate government agency. Model Rule 1.11(d).



4. What does substantial responsibility mean?



a. Opportunity to gain confidential information



i. While serving as counsel to governmental body or as prosecutor



ii. While assisting in strategy preparation



iii. While supervising those who provide counsel or strategy preparation. City of Cleveland v. Cleveland Electr. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio), aff'd 573 F.2d 1310 (6th Cir. 1977) cert. denied 435 U.S. 996 (1978).



b. Personal involvement to an important material degree



i. ABA Formal Op. 342, nn. 22-24



ii. N.J. Op. (July 26, 1988)("substantial responsibility" can be described as making a decision in regard to a matter of substance; a decision such as the assignment of a matter to a subordinate purely on a rotational basis would not constitute substantial responsibility).



iii. Cf. 18 U.S.C. §207(a)(3), pursuant to which officers and employees of executive branch of U.S. government are deemed to have participated personally and substantially through decision, approval, disapproval, recommendation, the rendition of advice, or investigation.



c. Peripheral involvement



i. Silver Chrysler Plymouth v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975)(associate's involvement limited to brief, informal discussions on a procedural matter or research on a specific point of law does not rise to level of substantial responsibility).



ii. Delaware State Bar Ass'n Op. 1985-2 (lawyer's not having acquired confidences and secrets, never having investigated the case, not having rendered legal advice and not having access to case files--not substantial responsibility).



iii. Neither mere employment at a government agency at the time of the representation at issue nor familiarity with general agency procedures rises to the level of substantial responsibility). United States v. Standard Oil Co., 136 F. Supp. 345 (S.D.N.Y. 1955)(rejecting automatic vertical vicarious disqualification).



F. "Screening" to Avoid Vicarious Disqualification of New Firm



1. Applicable rules



a. DR 9-101(B) has no vicarious disqualification feature like DR 5-105(E). However, courts and ethics opinions nevertheless impute tainted attorney's disqualification to other attorneys in firm because of potential for shared confidences and secrets in violation of DR 4-101(B).



b. Cf. proposed Rule 1.11(b), which explicitly prohibits a law firm in which a disqualified attorney is employed from undertaking or continuing to represent a private client in a matter unless the disqualified lawyer is appropriately screened, receives no part of the fee, and written notice is given to the appropriate government agency so that it may ascertain compliance with the rule.



2. Rationales for Ethics Screens



a. Isolates the taint and the tainted lawyer



b. Guards against inadvertent use of confidential information. Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903 (1981).



c. Preserves the integrity of the adversary process. United States v. Uzzi, 549 F. Supp. 979, 983 (S.D.N.Y. 1982) quoting Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).



d. Public policy encourages screening of disqualified lawyer in order to:



i. Attract lawyers to government service



ii. Allow clients to select counsel of choice



e. Sharing of confidences and secrets is a "rebuttable presumption"



LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983); Silver Chrysler Plymouth v. Chrysler Motors Corp., supra; Huntington v. Great Western Resources, Inc., 655 F. Supp. 565 (S.D.N.Y. 1987).



See also In re Grand Jury, 790 F. Supp. 109 (E.D. Va. 1992)(no basis to disqualify entire U.S. Attorneys Office simply because two attorneys who joined office had prior connection with defendant under investigation provided the two attorneys had no involvement with current investigation, had recused themselves and had erected a "Chinese Wall"). But see In re Asbestos Cases, 514 F. Supp. 914 (E.D. Va. 1981)(rejection of "Chinese Wall" erected by private law firm around former government attorney who had substantial responsibility with defense of government in asbestos cases arising out of U.S. naval shipyards; private firm precluded from representing asbestos claimants).



3. Support for Ethics Screens



a. ABA Formal Op. 342



b. Restatement of the Law Governing Lawyers § 204 (Prelim. Draft No. 11, May 18, 1995)(includes screening of former government lawyer to rebut imputed confidences and secrets).



c. LEO 1302 (Dec. 27, 1989) (opinion withdrawn after disapproval by Virginia Supreme Court) -- Stated that a screening device is acceptable to avoid vicarious disqualification of entire firm when local government attorney joins private firm which represents a client adverse to lawyer's prior government client.



d. LEO 1334 (April 20, 1990) -- States that screening device is acceptable to avoid vicarious disqualification of entire firm with which former law clerk is employed when firm represents clients involving matters which come before law clerk's supervising judge). However, the Committee bases this opinion on its earlier LEO 1302 which the Virginia Supreme Court rejected without comment.



e. New Jersey Op. 614 (July 26, 1988) -- States that law firm with which former state agency attorney affiliates may represent clients before the agency in matters where the lawyer's former involvement was not substantial if the lawyer is screened from participation.



f. Vermont Opinion 87-7 -- States that firm hiring former assistant attorney general may continue to represent client with adverse interests provided client consents and former assistant attorney general is screened from the case, case files, and compensation generated by case).



g. Bauunternehmung v. United States, 8 Cl. Ct. 793, 794 (1985), citing Kesselhaut v. United States, 555 F.2d 791 (Cl. Ct. 1977) -- States that when screening is used it must be explicit, inflexible and address the requirements peculiar to each case.

4. Authorities Rejecting Ethics Screens



a. Rhode Island Opinion 89-1 (Feb. 21, 1989) -- States that assigning all cases from which one lawyer is disqualified to another associate of firm will not cure conflict and, as a practical matter, it is virtually impossible to effectively screen one associate from the firm.



b. In re Asbestos Cases, 514 F. Supp. 914 (E.D. Va. 1981) -- Holds that firm is disqualified under plain language of DR without any requirement for a showing that the attorney possessed explicit confidences which were actually disclosed to or received by other members of law firm. Disqualification is required irrespective of whether the other members of firm are actually exposed to the information.



5. Elements Creating Successful Screen(1)



a. File and document sequestering and marking them with access limitations



b. Sequestering lawyer discussions



c. Shielding tainted lawyer from participation in remuneration, although not required to divorce screened lawyer from that portion of the screened fee that goes to overhead. (D.C. Op. 162; LEO 1302 at n.5).



d. Preservation of confidences and secrets



e. Notice to former government client as to establishment of screen



f. Consideration of law firm size in determining efficacy of screen. See Geisler v. Wyeth Laboratories, No. 88-1094-K, Dist. Ct. Kan. (June 8, 1989), 5 ABA/BNA Law. Man. Prof. Conduct 211; Conn. Op. 1985-1, supra; Silver Chrysler, supra, 518 F. 2d at 581.



g. Consent of prior government client may or may not be required. Kadish v. CFTC, 548 F. Supp. 1030 (N.D. Ill. 1982); Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106 (1981).







h. Timing of screen is critical: screen must be in place before lawyer joins firm. Armstrong v. McAlpin, supra, and Kesselhaut v.United States, supra.



i. Maintain screen until any new matters accepted by firm no longer substantially relate to matter for which attorney has substantial responsibility as a government employee.



J. Consent as a Cure To Conflicts Under Canons 4, 5 and 9



1. DR 4-101(C)(1) authorizes the revelation of a client's confidences or secrets if the client consents after full disclosure.



2. DR 5-105(D) allows an attorney to represent a client adverse to a former client if the former client consents after full disclosure.



3. DR 9-101(B) allows a former government attorney to represent a private client if the former governmental client consents.



4. Consent does not always work, however, and the Committee has in some cases opined that consent will not cure a conflict between a lawyer and client. See, e.g., LEO 190 (April 1, 1985)(despite consent from their respective clients, attorneys who are members of the same "nuclear" family may not undertake representation of opposing interests); LEO 1390 (March 12, 1991)(lawyer may not take security interest in marital home to secure legal fees where marital property is the subject matter of litigation, even if client consents) and LEO 1393, supra.



5. Also, in a disqualification issue under DR 9-101(B), the court may unfortunately apply the vague "appearance of impropriety" (smell test?) standard. "Appearance of impropriety" is simply too slender a reed on which to rest a disqualification [of an entire firm] order particularly where the appearance of impropriety is not very clear. Armstrong v. McAlpin, 625 F.2d 433, 445 (2d Cir. 1980) citing Board of Education v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).



1. For additional discussion of elements creating successful screen, see Kesselhaut v. United States, 555 F.2d 791 (Ct. Cl. 1977); Kovacevic v. Fair Automotive Repair, Inc., 641 F. Supp. 237, 244 (N.D. Ill. 1986); Manning v. Fort Deposit Bank, 619 F. Supp. 1327 (W.D. Tenn. 1985); District of Columbia Opinion 162; Illinois Opinion 88-2; Massachusetts Bar Op. 88-2; Tennessee Sup. Ct. Bd. of Prof. Resp., Formal Opinion 89-F-118. See also Sullivan, Building Chinese Walls In Virginia: Should Virginia Recognize the Chinese Wall Defense to Vicarious Disqualification?, 26 U. Rich. L. Rev. 391 (1992).