Opinion #221. Lawyer's on Loan to District Attorney's Offices
Issued by the Professional Ethics Commission
Date Issued: March 13, 2020
Following inquiries from members of the Bar, the Professional Ethics Commission issues this opinion to address the ethical obligations under the Maine Rules of Professional Conduct associated with law firms "loaning" associates to local District Attorney's Offices. This arrangement serves a dual benefit of imparting relevant legal experience to the associates and alleviating the burden of limited legal resources for the District Attorneys.
Question: May a law firm "loan" an associate of that firm to a local District Attorneys Office for a specified time period, during which the "loaned" associate would work full-time as a prosecutor under the supervision of the District Attorney while being paid by the firm?
Short Answer: Unless otherwise prohibited by law, a law firm may permit an associate to work as a prosecutor in a local District Attorneys office for a specified period so long as a proper conflict analysis is conducted and all appropriate safeguards are in place.
M.R. Prof. Conduct 1.0 – Definitions (subsections b, c, e, k, and l)
M.R. Prof. Conduct 1.6 – Confidentiality of Information
M.R. Prof. Conduct 1.7 – Conflict-of-Interest: Current Clients
M.R. Prof. Conduct 1.8(l) – Conflict-of-Interest: Current Clients: Specific Rules - lawyer related to another lawyer
M.R. Prof. Conduct 1.9 – Duties to Former Clients
M.R. Prof. Conduct 1.10 – Imputation of Conflicts-of-Interest: General Rule
M.R. Prof. Conduct 1.11 – Special Conflicts-of-Interest of Former and Current Government Officers and Employees
M.R. Prof. Conduct 3.8(c) and (d) – Special Responsibilities of a Prosecutor
M.R. Prof. Conduct 5.1 – Responsibilities of Partners, Managers, and Supervisors
Law Firm Associate "Loaned" to District Attorneys Office
Some Maine law firms have developed agreements with local District Attorneys offices under which an associate employed by the firm is "loaned" to the DAs office for a short period of time, during which the associate does the work of a typical Assistant District Attorney. Specifically, the associate appears in Maine courts on behalf of the county and the State and prosecutes criminal and civil infraction matters. During that time, the associate continues to receive their regular salary from the firm. At the completion of their period of work in the DAs office, the associate returns to the firm and resumes work as an associate for the firms clients and has no further involvement with the DAs office as a prosecutor. These arrangements provide a benefit to the firm by way of in-court training and experience for the associate and for the DAs office by way of an additional prosecutor without cost to the office.
Any transition of an attorney between government and private practice requires a robust conflict of interest analysis under M.R. Prof. Conduct 1.11. In order to conduct such analysis, all involved need a clear understanding of what matters will be assigned to the associate while engaged in work for the participating District Attorneys office and specifically representing counties within their district and the State in both civil and criminal actions.1 30-A M.R.S.§§ 282, 283; see also 5 M.R.S. § 192.
At all times the associate serves as a public officer or employee, she is subject to Rules 1.7 and 1.9. See M.R. Prof. Conduct 1.11(d)(1). A law firm associate in such role may not participate in a matter in which she participated personally or substantially while in private practice or during nongovernmental employment unless the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation.2 M.R. Prof. Conduct 1.11(d)(2). We recommend that all parties maintain detailed records of the matters worked on to assist in compliance with their ethical responsibilities.
Obtaining Informed Consent
Identification of the appropriate governmental officer or agency authorized to give the required written informed consent depends upon the specific facts of the representation. We recognize that initially this Commission determined, in the context of criminal litigation in Opinion No. 36, when applying former Rule 3.4(f) that, "the State of Maine is the ‘client’ of the Assistant District Attorney, and it is not possible for the State to give its ‘informed written consent’ to a conflict of interest representation."3 We later concluded that Opinion No. 36 should be amended to permit an assistant district attorney "to represent the State in cases defended by her husbands law firm provided the informed written consent of the District Attorney or the Attorney General is first obtained." Opinion No. 42. In Opinion No. 65, the Commission reiterated its conclusion that the District Attorney or the Attorney General could supply informed written consent in connection with a conflicted representation. In addition to Rule 1.7, the associate "may be subject to statutes and government regulations regarding conflict-of-interest, including but not limited to 5 M.R.S. § 18, "which" may circumscribe the extent to which the government agency may give consent . . . . M.R. Prof. Conduct 1.11 Cmt. 1; see also, e.g., 30-A M.R.S. §§ 5, 2604, 2605. Informed consent should be requested as soon as practicable after the need for screening becomes apparent. M.R. Prof. Conduct 1.11 Cmt. 7.
Existing Duties to Former Clients
The associates duties to former clients always remains intact. A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing. M.R. Prof. Conduct 1.9(a). In addition, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented the client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, unless the former client gives informed consent, confirmed in writing. M.R. Prof. Conduct 1.9(b). Matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the clients position in the subsequent matter.
Moreover, while serving in the District Attorneys office, the "loaned" prosecutor may not conduct a civil, juvenile, or criminal case against any person whom that prosecutor knows the firm represents or the "loaned" prosecutor or firm has previously represented as a client. Likewise, the "loaned" prosecutor may not conduct a matter in which the prosecutor knows that the firm represents or has represented a complaining witness. M.R. Prof. Conduct 3.8 (c) and (d). Violation of these Rules give rise not only to risk of disciplinary action, but also disqualification.
Duties of the Law Firm
The Rules of Professional Conduct do not plainly address the duties of a law firm loaning an associate to a local District Attorneys office. Guidance derives from Rule 1.11(b), rather than Rule 1.10, and it generally governs the imputation of conflicts involving current and former government officers and employees. M.R. Prof. Conduct 1.10, Cmt. 7. However, as indicated in the comments to both Rule 1.10 and Rule 1.11,4 the provisions of Rule 1.11(b) apply to situations in which former government officers and employees have joined a law firm, not when an attorney is simultaneously associated with a law firm and serving as a government officer or employee. In that instance, a law firm must continue to comply with the provisions of Rule 1.10 while the associate is on loan. The law firm should not knowingly represent a client if the "loaned" associate would be prohibited from doing so pursuant to Rule 1.7 or 1.9, unless the criteria of Rule 1.10 (a) have been met or unless the affected client has provided informed consent in accordance with Rules 1.7 and 1.9.
Law firms should also be mindful of the requirements of Rule 5.1, which governs the responsibilities of partners, managers, and supervisors. Pursuant to Rule 5.1, a partner in a law firm, and any lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, is required to make reasonable efforts to ensure that the firm has in effect measures that give reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. M.R. Prof. Conduct 5.1(a). Beyond ensuring that all firm lawyers conform to the Rules, partners, managers, and supervisors must ensure that the conduct of non-lawyer staff also comports with the Rules of Professional Conduct. M.R. Prof. Conduct 5.3.
Law Firm Associate Returns to the Law Firm
Safeguarding Confidences and Secrets
Upon returning to private practice from government service, the law firm associate must remain vigilant in her ethical obligations. The returning associate must appropriately safeguard the confidences and secrets of the State or state agency she represented while at the District Attorneys office. M.R. Prof. Conduct 1.9(c), and 1.11(a)(1). A lawyer who has prosecuted an accused person may not represent the person in a subsequent civil action against the government concerning the same transaction or in any matter where the lawyer was so involved that "the subsequent representation can justly be regarded as changing sides." M. R. Prof. Conduct 1.9 Cmt. 1 and Cmt. 2. The associate shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate governmental officer or agency gives its informed consent, confirmed in writing, to the representation. M.R. Prof. Conduct 1.11(a)(2).
General knowledge of the former governmental clients policies and practices alone ordinarily will not preclude subsequent representation adverse to the government unless the associates knowledge of specific facts gained during the prior representation is relevant to the subject matter of the subsequent representation. Any determination about whether the associate has such knowledge may be based on the nature of the services the associate provided to the government client and information that would, in ordinary practice, be learned by a lawyer providing such services. M. R. Prof. Conduct 1.9 Cmt. 3.
In addition, an associate lawyer having information that she knows is confidential information about a person acquired when the associate was a public officer or government employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. M.R. Prof. Conduct 1.11(c). "Confidential government information" means information that has been obtained under governmental authority and which the government is prohibited by law from disclosing to the public, or has the legal privilege not to disclose, and which is not otherwise available to the public. Nor may the associate exploit her role with the public office for the advantage of another client. A lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a private client after the lawyer has left government service, except when authorized by the government agency as required under the rule. M.R. Prof. Conduct 1.11 Cmt. 3. Unfair advantage could accrue to a private client by reason of access to confidential government information about the clients adversary resulting from the lawyers government service. M.R. Prof. Conduct 1.11 Cmt. 4.
Duties of Law Firm
Once the "loaned" associate has returned to the law firm, the provisions of Rule 1.11(b) apply. If the associate is disqualified from representation under Rule 1.11, no lawyer in the firm may knowingly undertake or continue representation in such a matter unless: (1) the disqualified associate is timely screened from any participation in the matter and is apportioned no part of the fee, and (2) the appropriate governmental officer or agency has given its informed consent, confirmed in writing, to the representation. M.R. Prof. Conduct 1.11(b). Likewise, if the associate has confidential government information such that she may not represent a client, the firm may not undertake or continue representation in the matter unless the disqualified associate is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. M.R. Prof. Conduct 1.11(c).
Although not directly on point with the specific analysis delineated in this opinion, the Commission has previously addressed similar ethical inquiries within a recent opinion on lawyer mobility. Specifically, in Opinion #219, this Commission addressed a wide-ranging set of questions implicated by a lawyers transfer between firms and/or the government. Combined with the analysis arising from this opinion, the Commission has strived to provide the Maine bar with a comprehensive set of guiding principles when facing these ethical concerns.
Finally, as noted above, law firms should bear in mind the requirements of Rule 5.1, governing the responsibilities of partners, managers, and supervisors. Those lawyers are required to make reasonable efforts to ensure that the firm has in effect measures that provide reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. M.R. Prof. Conduct 5.1(a)
When a law firm "loans" an associate to work as a prosecutor in a District Attorneys office for a specified time period, the arrangement provides a benefit to the firm and to the government office. That arrangement, however, requires both entities to conduct a thorough conflict of interest analysis pursuant to the relevant ethics rules. If properly executed, the "lawyers on loan" principle serves as one model to achieve important goals sought by firms and prosecutors offices alike.
1All District Attorneys and Assistant District Attorneys designated as full-time assistants, 30-A M.R.S.§ 272, are "full-time officers of the State" pursuant to 30-A M.R.S. § 256. This status means that they may not appear as counsel other than in their district attorney capacity and may not "engage in the private practice of law nor be a partner or associate of any person engaged in the practice of law or be a member or employee of a professional association engaged in the private practice of law." 30-A M.R.S. §272(2). Whether and under what circumstances a "loaned" law firm associate should be designated as a full-time Assistant District Attorney under these statutes is an issue beyond the jurisdiction of the Commission. Similarly, the Commission does not address whether and to what extent the compensation paid during this period is subject to 30-A M.R.S. § 272(3).
2The rule offers a rare exception to the mandatory consent requirement unlikely to apply under the circumstances contemplated by this opinion. That alternative reflected in Rule 1.11(d)(2)(i)(B) would not require informed consent of the governmental officer or agency when "under applicable law no one must be, or by lawful delegation may be authorized in the lawyers stead [to act] in the matter."
3This position has been adopted in other jurisdictions. Ohio Bd. Of Commissioners on Grievance & Discipline Opinion 2014-2, p.2 (opining that Prosecutors client is the State of Ohio which is not able to provide informed consent confirmed in writing).
4"Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule." M.R. Prof. Conduct 1.10 Cmt. 7; see also M.R. Prof. Conduct 1.11 Cmt. 2, which states "Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and requires informed consent."