Opinion #111. Disqualification of Former State Administrative Agency Board Member Entering Private Practice

Issued by the Professional Ethics Commission

Date Issued: November 1, 1990

QUESTION

Before graduating from law school the inquiring attorney was a member of the board of an administrative agency of this State having rulemaking, licensing and enforcement responsibilities. The request for advice asks under what circumstances the Bar Rules would preclude the attorney from appearing before the board: A) “representing parties who came before the Board during my term or”; B) “representing parties . . . who have matters that have a direct relationship to matters that came before the Board [during the attorney’s term].” The board on which the attorney served had extensive permit granting authority, which was exercised through rules that treated some such proceedings as adjudicatory. Others were delegated to a staff over which the Board had no administrative authority. Staff decisions on permits could be appealed to the Board. The board also had limited enforcement powers, which could be exercised through a hearing procedure. Other functions of the Board were not adjudication. For example, it engaged in rulemaking.

OPINION

The inquiring attorney suggests that the questions are controlled by either Bar Rule 3.4(g) or Bar Rule 3.4(h).[1]

The Commission has concluded that, given the procedure of the Board in question, Rule 3.4(g) is likely to be controlling in nearly all cases.

Rule 3.4(g) provides:
(g) Prior Judicial Activity. A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

The reporter’s notes to the rule indicate that “judicial capacity” should be given a broad interpretation, including “any . . . official fact finding or adjudicatory position.” We accept the interpretation suggested by the Reporter and therefore treat the attorney’s board membership as within the scope of Rule 3.4(g).

Rule 3.4(h)(1) provides:
(h) Successive Government and Private Employment.
(1) A lawyer shall not accept private employment in a matter in which he formerly represented the government of a state, or of the United States, or any agency, entity, or political subdivision of a state or of the United States as client, or in which he participated personally and substantially as a public officer or employee, or when such private employment may involve the use of confidential information obtained through the former governmental representation or employment.

Rules 3.4(g) and (h)(1) concur in requiring as a predicate some prior connection as a government official with a “matter.” They differ in the nature of the connection and in their consequences. Rule 3.4(g) rests solely on action on the merits of a “matter” in an “official fact finding or adjudicatory position.” Rule 3.4(h)(1) may rest on representation of the government as an attorney or on personal and substantial participation in a matter as a public officer or employee, or on the receipt of confidential information about a matter as a result of government employment. Rule 3.4(h)(1) does not necessarily require action of any kind on the merits of a matter.

Having a narrower predicate, Rule 3.4(g) has broader consequences. When an attorney is barred from employment by Rule 3.4(g), no partner or associate or affiliated lawyer may accept employment from which the attorney who is subject to Rule 3.4(g) would be barred. Because of a 1983 amendment to 3.4(k), however, when 3.4(h)(1) is the applicable rule, partners, associates and affiliated attorneys are not barred from accepting employment not permitted to the target attorney if that attorney is screened from participation as a professional and receives no economic benefit from the representation.

The application of both rules requires identification of a “matter” with which the attorney was connected in some way during prior government service. Opinion 19 of the Grievance Commission[2] and the Reporter’s Notes to the 1983 amendment of Rule 3.4(h)(1) concur in defining “matter” in Rule 3.4(h)(1) as “a discrete and isolatable transaction or set of transactions between identifiable parties.” We believe the term “matter” should have the same meaning in Rule 3.4(g) as it has in Rule 3.4(h)(1). In both rules this key term serves to draw the line between subsequent employment that should be permissible in the interest of encouraging lawyers to enter public service and employment that must be barred because it could impair the integrity of a lawyer’s previous acts as a public official or result in misuse of a former public office for private gain.”[3]

The licensing authority of the Board requires that we determine the scope of the “matter” when a license issues. We conclude that when a license has indefinite duration, subsequent proceedings to modify, interpret or enforce the license, or conditions of the license, involve the same matter as the original licensing proceeding. Renewal of a license with limited duration, on the other hand, will not involve the same matter. The line may appear to be thin, but we conclude it should be drawn at that location.[4]

Because the applicability of both rules turns on the “matter” as to which employment has been accepted, the attorney will not be disqualified from representing a client just because that client appeared before the board during the attorney’s service or is still involved in some way with the same matter that was before the board while the attorney served on it or a related matter. The question is whether the matter as to which the attorney accepts employment is disqualifying under 3.4(g) or 3.4(h).

Applicability of Rule 3.4(g)

Rule 3.4(g) will disqualify the attorney from further participation in matters: 1) that were before the board during the attorney’s tenure for adjudication; and 2) as to which he acted on the merits. Permits on which the Board took plenary action on the merits, including but not limited to action after hearings, permits on which the Board acted as a result of an appeal from a staff decision, and enforcement decisions reached by the Board after hearing, plainly involve adjudication within the scope of Rule 3.4(g). If the attorney voted on any such matter, there was action on the merits for the purposes of Rule 3.4(g).

It was also customary for the Board to approve, without separate vote, a list of consent orders and staff recommendations referring matters to the Attorney General for enforcement action. Although in practice the board did not deliberate on individual orders and recommendations, the governing statute required Board action on all of them, and the Board voted on all. The purposes of Rule 3.4(g) require that action on the merits be construed broadly. (See Opinion 80) A vote, even without deliberation on any item on the list, must therefore be deemed action on the merits. The Board acted in no other way. Accordingly, neither the lawyer nor any member or associate of his firm may accept employment in any matter that came before the Board on a consent agenda on which he acted while he was a member. If the result seems unduly restrictive, the remedy would seem to be an amendment to Rule 3.4(k).

On the other hand, Rule 3.4(g) will not disqualify the former board member from representation that involves a rule adopted while he was on the board, since rule‑making is not adjudication.

Applicability of Rule 3.4(h)(1)

The inquiring attorney did not represent the government as an attorney during his tenure on the Board, since he was not an attorney then and that was not his job in any case. The applicability of Rule 3.4(h)(1) thus will turn on finding that his present employment involves 1) the same “matter” as he encountered while a member of the Board; and, 2) his “personal and substantial” participation as a government official in the “matter,” or 3) his possession of confidential information that could be useful in carrying out any employment as an attorney he may later be offered.

Members of the attorney’s board had no administrative responsibilities. Thus, in nearly all cases it seems that the attorney’s personal and substantial participation in a matter will consist of acting on the merits of that matter as a board member, that is, in a judicial capacity as those terms are used in Rule 3.4(g). Consequently, the restrictions of 3.4(g) rather than 3.4(h)(1) would apply.

It seems unlikely that the attorney would have received confidential information in any way other than part of a board proceeding, and therefore unlikely that he received any confidential information while serving on the board. Information that is available to the general public, regardless how narrowly the information may, in reality, have been disseminated is not confidential within the meaning of Rule 3.4(h). Virtually all the files and proceedings of the Board in question are public records.[5] Nor is the former board member’s knowledge of or assumptions about the views of fellow members or the reasons for a particular decision confidential information, as that phrase is used in Rule 3.4(h)(1).

As was the case with Rule 3.4(g), Rule 3.4(h)(1) would not bar the attorney from employment involving rules adopted by the board while he was a member, whether that employment consists of representation in proceedings in which the rule is attacked, interpreted or defended, or consists of representation in subsequent rule‑making to amend or repeal the rule. Rule‑making is not a proceeding between identifiable parties and thus does not create a “matter,” as that term is used in Bar Rule 3.4(h)(1).


FOOTNOTES

[1] The Committee does not, of course, have authority to opine on the impact of 5 M.R.S.A. Sec. 18.

[2] The Grievance Commission formerly had the task of issuing advisory opinions.

[3] The inquiring attorney suggests it might be relevant that he was not a lawyer during his government service. Except for situations in which Rule 3.4(h)(1) could only be applicable because of prior representation of the government as an attorney, neither 3.4(g) or 3.4(h)(1) requires that the disqualifying prior service be legal in nature or that the attorney have been a member of the bar at the time.

[4] The Commission expresses no opinion on the identity and extent of a “matter” in administrative proceedings not mentioned in this opinion, for example ratemaking.

[5] Some agency files may contain so‑called trade secrets made confidential by law.


Enduring Ethics Opinion