Opinion #19. Disqualification of Deputy Attorney General Entering Private Practice

Issued by the Professional Ethics Commission

Date Issued: January 15, 1981

The Commission has been asked for an advisory opinion by an attorney presently employed as a Deputy Attorney General for the State of Maine. The attorney contemplates joining a large Maine law firm which is involved in many cases against the State. We are asked to advise as to the extent this attorney and the private firm would become disqualified from handling present and future cases against the State.

Facts

The attorney has for ten years worked for the Attorney General’s office and, since 1976, has been a Deputy Attorney General. In such capacity he has had general responsibility for the supervision of civil litigation in that office including reviewing civil suits initiated by the State of Maine or brought against the State, approving all appeals in civil suits, reviewing appellate briefs, consulting with other members of the Attorney General’s staff with respect to investigations, opinions, and the conduct of litigation and, at the request of the Attorney General, directly assuming responsibility for particular lawsuits and legal problems. The actual supervisory responsibility exercised in any particular instance varied greatly. In some instances, he was personally involved in a matter. In other cases, he was not involved at all and his general supervisory power was not, in fact, exercised. During this period the Attorney General’s Department represented, with a few exceptions, nearly all agencies, commissions and administrative bodies of the State and the Executive branch and the Legislature. The attorney has also personally represented a number of those agencies in various matters, has drafted a substantial number of regulations and has done statutory drafting.

The firm which the attorney contemplates joining represents a variety of clients who are involved in pending administrative or regulatory proceedings before state agencies, and are negotiating or litigating with, or are subject to investigation by the Attorney General or agencies represented by his Department. With respect to some of those matters, the inquiring attorney has been directly and personally involved either as counsel of record, as consultant to other members of that Department, or in reviewing and approving investigations, legal positions and advice or pleadings. In other instances, he has neither been personally involved in, aware of, nor exercised actual authority or supervision over such matters.

Issues

The Maine Bar Rules applicable to this case are 3.4(h) and 3.4(k). They provide, respectively, as follows:

(h) Prior Service as Public Official. A lawyer shall not accept private employment in a matter in which he held substantial and relevant responsibility while he was a public official or employee.


(k) Partners and Associates Barred. If, for reasons other than health, a lawyer is required to decline employment or to withdraw from employment under these rules, no partner or associate, and no lawyer affiliated with him or his firm, may accept or continue such employment.

The effect of these Rules is to create two major questions: (1) What disqualifications would be imposed on the Deputy Attorney General himself if he goes into private practice, and (2) what disqualifications would be imposed upon the firm which contemplates hiring him? Each of these questions has many sub‑parts in that distinctions may need to be made among those cases in which the inquiring attorney actively participated, those which he had theoretical responsibility for but no actual participation, those which involved the Attorney General’s office but not the division supervised by the inquiring attorney, and those cases involving laws or regulations which the inquiring attorney helped draft.

Discussion

The provisions of Maine Bar Rules 3.4(h) and 3.4(k) have been only slightly modified from their predecessors in the Code of Professional Responsibility. Rule 3.4(h) is directly descended from DR 9‑101(B)[1] and Rule 3.4(k) is the offspring of DR 5‑105(d).[2] As a result, we are aided in our analysis of the Maine Bar Rules by a substantial body of prior decisions by ethics committees and courts.[3]

I. The Disqualifications of the Former Government Attorney Himself.

As indicated above, Rule 3.4(h) controls what cases a former government attorney must decline after going into private practice. The language of that Rule is, however, not free from ambiguity. The phrase “. . . a matter in which he has held substantial and relevant responsibility. . . .” needs closer analysis.

In 1975 the American Bar Association’s Committee on Ethics and Professional Responsibility issued Formal Opinion 342 which broke with prior precedent and custom tending to strictly construe DR 9‑101(B), the predecessor to Rule 3.4(h). The ABA analyzed the policy considerations for and against strict construction as follows:

The policy considerations underlying DR 9‑101(B) have been thought to be the following: the treachery of switching sides; the safeguarding of confidential governmental information from future use against the government; the need to discourage government lawyers from handling particular assignments in such a way as to encourage their own future employment in regard to those particular matters after leaving government service; and the professional benefit derived from avoiding the appearance of evil.

There are, however, weighty policy considerations in support of the view that a special disciplinary rule relating only to former government lawyers should not broadly limit the lawyer’s employment after he leaves government service. Some of the underlying considerations favoring a construction of the rule in a manner not to restrict unduly the lawyer’s future employment 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; the rule serves no worthwhile public interest if it becomes a mere tool enabling a litigant to improve his prospects by depriving his opponent of competent counsel; and the rule should not be permitted to interfere needlessly with the right of litigants to obtain competent counsel of their own choosing, particularly in specialized areas requiring special, technical training and experience.

Formal Opinion 342 goes on to analyze the terms “matter” and “substantial responsibility” in this way:

Although a precise definition of “matter” as used in the Disciplinary Rule is difficult to formulate, the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. Perhaps the scope of the term “matter” may be indicated by examples. The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a 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; the same “matter” is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties.


As used in DR 9‑101(B), “substantial responsibility” envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question. Thus, being the chief official in some vast office or organization does not ipso facto give that government official or employee the “substantial responsibility” contemplated by the rule in regard to all the minutiae of facts lodged within that office. Yet it is not necessary that the public employee or official shall have personally and in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter. With a responsibility so strong and compelling that he probably became involved in the investigative or decisional processes, a lawyer upon leaving the government service should not represent another in regard to that matter. To do so would be akin to switching sides, might jeopardize confidential government information, and gives the appearance of professional impropriety in that accepting subsequent employment regarding that same matter creates a suspicion that the lawyer conducted his governmental work in a way to facilitate his own future employment in that matter.

The element of “substantial responsibility” as so construed should not unduly hinder the government in recruiting lawyers to its ranks nor interfere needlessly with the right of litigants to employ technically skilled and trained former government lawyers to represent them.

The ABA’s liberalization of the definitions of “matter” and “substantial responsibility” have not met with universal acceptance by other bar committees and commentators. See, e.g., the analysis in the Annotated Code of Professional Responsibility, supra, pp. 424‑428. A major thrust of the critics has been that Formal Opinion 342 does not sufficiently protect against the “appearance of impropriety” that arises from the attorney switching sides. This issue arises, however, primarily because the structure of The Code of Professional Responsibility placed DR 9‑101(B) under the maxim of Canon 9, “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” But, as the ABA’s opinion pointed out, “the appearance of professional impropriety is not a standard, test or element embodied in DR 9‑101(B) . . .” and the appearance of evil is “. . . probably not the most important reason for the creation and existence of the rule itself.”

The Commission agrees with the analysis of the ABA. Our conclusion is supported by two factors unique to Maine Bar Rule 3.4(h). One is that restructuring from The Code of Professional Responsibility to the Maine Bar Rules has dispensed with any rules about avoiding “even the appearance of impropriety” and, therefore, Rule 3.4(h) no longer even implies, as did DR 9‑101(B), that this should be a significant factor in its application. The second factor which distinguishes DR 9‑101(B) from the Maine rule is that the former uses the expression “substantial responsibility,” while the latter says “substantial and relevant responsibility.” This addition can only be interpreted as a further limitation on the number of situations in which a former government attorney would be disqualified.

Accordingly, the Commission adopts the ABA’s definitions of “matter” and “substantial responsibility” as quoted above. The application of these definitions to particular facts will of course have to be done on a case by case basis, and there will still be some grey areas. It is possible that the inquiring attorney and the attorney general himself can resolve some of these but, if not, the Courts or the Commission are available for analyzing individual cases when the specific facts are presented.

II. The Disqualifications of the Former Government Attorney’s

New Private Firm.

Assuming cases exist which, upon joining his new firm, the inquiring attorney will be barred from handling, or that such cases arise thereafter, will this automatically require the firm to drop such existing cases or refuse such future cases? Rule 3.4(k) and its predecessor DR 5‑105(D) on their face require such disqualifications. Nevertheless, there is precedent to the effect that with the adoption of sufficient procedures designed to isolate the disqualified attorney from participation, the other members of his firm may handle such cases.

The ABA’s Formal Opinion 342, discussed above, also addressed this issue of “vicarious disqualification” as follows in part:

The extension by DR 5‑105(D) of disqualification to all affiliated lawyers is to prevent circumvention by a lawyer of the Disciplinary Rules. Past government employment creates an unusual situation in which inflexible application of DR 5‑105(D) would actually thwart the policy considerations underlying DR 9‑101(B). The question of the application of DR 5‑105(D) to the situation in which a former government employee would be in violation of DR 9‑101(B) should be considered in the light of those policy considerations, viz: opportunities for government recruitment and the availability of skilled and trained lawyers for litigants should not be unreasonably limited in order to prevent the appearance of switching sides, yet confidential information should be safeguarded, and government lawyers should be discouraged from handling particular assignments in such a way as to encourage their own future employment in regard to those particular matters after leaving government service. The desire to avoid the appearance of evil, even though less important, must be considered. A realistic construction of DR 5‑105(D) should recognize and give effect to the divergent policy considerations when government employment is involved.


. . . DR 9‑101(B)’s command of refusal of employment by an individual lawyer does not necessarily activate DR 5‑105(D)’s extension of that disqualification. The purposes of limiting the mandate to matters in which the former public employee had a substantial responsibility are to inhibit government recruitment as little as possible and enhance the opportunity for all litigants to obtain competent counsel of their own choosing, particularly in specialized areas. An inflexible extension of disqualification throughout an entire firm would thwart those purposes. So long as the individual lawyer is held to be disqualified and is screened from any direct or indirect participation in the matter, the problem of his switching sides is not present; by contrast, an inflexible extension of disqualification throughout the firm often would result in real hardship to a client if complete withdrawal of representation was mandated, because substantial work may have been completed regarding specific litigation prior to the time the government employee joined the partnership, or the client may have relied in the past on representation by the firm.

All of the policies underlying DR 9‑101(B), including the principles of Canons 4 and 5, can be realized by a less stringent application of DR 5‑105(D). The purposes, as embodied in DR 9‑101(B), of discouraging government lawyers from handling particular assignments in such a way as to encourage their own future employment in regard to those particular matters after leaving government service, and of avoiding the appearance of impropriety, can be accomplished by holding that DR 5‑105(D) applies to the firm and partners and associates of a disqualified lawyer who has not been screened, to the satisfaction of the government agency concerned, from participation in the work and compensation of the firm on any matter over which as a public employee he had substantial responsibility. Applying DR 5‑105(D) to this limited extent accomplishes the goal of destroying any incentive of the employee to handle his government work so as to affect his future employment. Only allegiance to form over substance would justify blanket application of DR 5‑105(D) in a manner that thwarts and distorts the policy considerations behind DR 9‑101(B).

Our conclusion is further supported by the fact that DR 5‑105(C) allows the multiple representation that is generally forbidden by DR 5‑105(A) and (B),[4] where all clients consent after full disclosure of the possible effect of such representation.[5] DR 5‑105(A) and (B) deals, of course, with much more egregious contingencies than those covered by DR 9‑101(B). It is unthinkable that the drafters of the Code of Professional Responsibility intended to permit the one afforded protection by DR 5‑105(A) and (B) to waive that protection without also permitting the one protected by DR 9‑101(B) to waive that less‑needed protection. Accordingly, it is our opinion that whenever the government agency is satisfied that the screening measures will effectively isolate the individual lawyer from participating in the particular matter and sharing in the fees attributable to it, and that there is no appearance of significant impropriety affecting the interests of the government, the government may waive the disqualification of the firm under DR 5‑105(D). In the event of such waiver, and provided the firm also makes its own independent determination as to the absence of particular circumstances creating a significant appearance of impropriety, the result will be that the firm is not in violation of DR 5‑105(D) by accepting or continuing the representation in question.

Relying heavily on Formal Opinion 342 the United States Court of Claims has applied the screening mechanism to prevent the vicarious disqualification of a former government attorney’s new firm. See Kesselhaut v. United States, 555 F.2d 791 (Ct. Cl. 1977), where the Court said, at pp. 793‑4:

Should an attorney, having left Government perhaps contrary to his own volition, ineluctably infect all the members of any firm he joined with all his own personal disqualifications, he would take on the status of a Typhoid Mary, and be reduced to sole practice under the most unfavorable conditions. There will be instances where no screening procedure will be adequate, and the infection must be allowed to take its course. When screening is used it must, as here, be specific and inflexible. Each case depends on its own merits.

The iron rule urged by the trial judge would act as a strong deterrent to the acceptance of Government employment by the most promising class of young lawyers. Indeed, in fairness to them, it would be necessary to warn them before signing on, of the disabilities likely to be incurred at a later date. Attorneys having both private and Government experience are often better qualified to be of value to the courts, as their officers, and to their clients, public and private, than those having one or the other experience alone. If interchange between the private and public sectors of the bar is to be halted, and careers in such sectors made matters of separate tracks that will never converge, it should be only upon full consideration of all the legal incidents of Government employment of lawyers, and it should be done overtly, and not achieved as a collateral consequence of a disciplinary rule ostensibly having other purposes.

On the other side, the conclusion that screening may be an effective alternative to disqualification of an entire firm has had substantial criticism. See, e.g., the analysis in the Annotated Code of Professional Responsibility, supra, pp. 433‑438. The Annotated Code describes a tentative draft of the Legal Ethics Committee of the District of Columbia Bar prepared in 1976 as follows:

In the opinion, the District of Columbia committee found that the ABA Committee, in Opinion 342, was fundamentally in error when it rejected the criterion of appearance of professional impropriety and stated that an already suspicious public was not likely to appreciate sophisticated justifications of otherwise questionable practices. It then cited eight policy considerations supporting a strict construction of the vicarious disqualification principle applied in conjunction with DR 9‑101(B): (1) the protection of the confidentiality of government matters, matters properly withheld from the public; (2) the unfair advantage to one private party when the former government attorney effectively “sells” inside information to a client rather than making it public; (3) the danger that current agency employees might show favoritism to their former agency colleague; (4) the appearance of opportunism in the attorney who “switches sides”; (5) the danger that private firms would attempt to hire an agency’s key members in order to impair its effectiveness; (6) the abuse of government power by agency lawyers anxious to curry favor with future employers at the public’s expense; (7) the danger that agency attorneys would use their official positions to obtain an advantage against an individual who might be a defendant in subsequent private litigation; and (8) the danger that agency attorneys would attempt to obtain private employment in order to either uphold or upset action taken while they were public employees.

In the Tentative Draft Opinion to Inquiry 19, the District of Columbia committee found the screening procedure recommended by Formal Opinion 342, November 25, 1975, objectionable not only because it represented an exception not even implied in the text of the Code but also on five policy grounds. The committee objected to screening because: (1) it did not preclude favoritism being shown to a firm by the agency; (2) the policing of potential breaches of confidentiality was not provided for; (3) it was irrelevant to the problem of the hiring of key agency personnel by a firm or the attempt of an agency attorney to curry favor with a potential employer; (4) agency attorneys were likely to give routine consent in order to protect their future employment prospects; (5) it compounded and aggravated the fundamental problem of appearances of impropriety.

This tentative draft received a majority vote of the members of the Ethics Committee but failed to receive enough votes for adoption under the Committee’s rules.

The Commission concludes that it is bound by the plain language Maine Bar Rule 3.4(k) automatically disqualifying the entire firm when the former government attorney is disqualified.


Footnotes

[1] 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.”

[2] DR 5‑105(D). “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.”

[3] See generally, Annotated Code of Professional Responsibility, 1979, pp. 417‑437.

[4] These sections deal with conflict of interest comparable to Maine Bar Rules 3.4(b) and 3.4(c).

[5] This is also true under Maine Bar Rule 3.4(d).


Enduring Ethics Opinion