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Opinion #22. Obligation of Lobbyist to Former Clients
Issued by the Professional Ethics Commission
Date Issued: January 15, 1981
Question
The XYZ law firm has for several years represented an association of trial attorneys as a lobbyist in Augusta. XYZ has advised the association that it has accepted employment as a lobbyist on behalf of an association representing the interests of liability insurance companies and, to avoid potential conflicts of interest in the future, will no longer represent the trial attorneys? group. The trial attorneys have not consented to this new representation and have threatened to initiate legal action if it is consummated. The parties have jointly requested an opinion from the Grievance Commission as to the propriety of the proposed change in clients under Bar Rule 3.
Opinion
We agree with the parties that the answer to the question presented turns on the construction of Rule 3.4(e) which provides that:
(e) Interest of Former Client. A lawyer shall not accept employment adverse to a former client without that client?s informed consent if such new employment involves the subject matter of the former employment or may involve the use of confidential information obtained through such former employment.
In a memorandum submitted by XYZ in support of its position, it has been suggested that lobbying activities do not lend themselves to the ?subject matter? test of Rule 3.4(e) and therefore are not regulated by it. The Commission rejects the contention that lobbying, when performed by a lawyer, is not an aspect of the practice of law which it was the intention of the rules draftsmen to regulate. The scope of the Bar Rules is broadly stated to encompass ?the conduct of attorneys with respect to their professional activities.? Although lobbying in the halls of the legislature is obviously different than presenting a case before a tribunal in an adversary proceeding, it does not follow that a lawyer‑client relationship with respect to such employment may not be created or that an adversial relationship may in some cases exist when conflicting forces urge the adoption or defeat of a particular bill.
Lawyer?s ethical codes have long regulated lobbying as part of an attorney?s employment. Former Canon 26 of the Canons of Professional Ethics of the American Bar Association provided that:
A lawyer openly and in his true character may render professional services before legislative or other bodies, regarding proposed legislation or in advocacy of claims before departments of government, upon the same principles of ethics which justify his appearance before the courts. . .
Regulation of such professional activities was carried forward into the Code of Professional Responsibility from which Maine Bar Rule 3 was in large measure taken. It is inconceivable that the draftsmen of the Maine Bar Rules could have intended such a drastic departure from past practice or to create such a substantial exception in the ethical standards regulating all of a lawyer?s professional activities.
The trial attorneys have contended, however, that the ?subject matter of the former employment? consists of ?all lobbying activities? on matters of interest to their association and the XYZ is therefore barred from undertaking any lobbying for the insurance interests, even with respect to matters not previously dealt with by the Maine Legislature. This argument goes too far. The Commission sees no reason why the term ?subject matter? should not be limited to particular legislative matters as to which XYZ lobbied on the trial attorneys? behalf. A former government lawyer would be precluded from engaging ever after in the specialized practice in which he had gained an expertise if the trial attorneys? broad definition of ?subject matter? to include generally his legal activities on behalf of the government agency, were accepted. On the contrary, it has been stated that:
. . . the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. . . . 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. ABA formal op. 342, p. 6 (1975).
The trial attorneys have also argued that if XYZ is permitted to lobby for the insurance companies, it will inevitably involve the ?use of confidential information obtained through such former employment? in violation of Rule 3.4(e). This contention is based on the fact that XYZ has gained inside knowledge about the internal operations of the trial attorneys? association such as its procedures for reaching consensus, financial strengths and weaknesses, and methods for allocating contributions to individual legislators. If this argument were accepted, however, it would effectively preclude a lawyer from ever taking a case against a former client without that client?s consent since he would inevitably pick up bits and pieces of information as to the client?s idiosyncrasies such as that he was a late riser, frequently exaggerated his statements, or was afflicted with a disease which disabled him at various times particularly in cold weather. This type of information acquired largely through observation by the lawyer rather than orally is not the type of confidential information with which Rule 3.4(b) is concerned, although it might conceivably be used to gain some advantage in an adversary proceeding. A lawyer employed by the N.L.R.B. or a large private corporation would invariably learn much about the internal modus operandi of his employer which would be useful in private practice yet it has long been accepted that an attorney leaving such employment is not barred from ever accepting cases against his former employer in the future where he was not previously involved in the subject matter of the litigation. Indeed, it has been stated that:
?Many a lawyer who has served with the government has an advantage when he enters private practice because he has acquired a working knowledge of the department in which he was employed, has learned the procedures, the governing substantive and statutory law and is to a greater or lesser degree an expert in the field in which he was engaged. Certainly this is perfectly proper and ethical. . . . This is distinguishable, however, from a situation where, in addition, a former government lawyer is employed and is expected to bring with him and into the proceedings a personal knowledge of a particular matter . . .? quoting Allied Realty v. Exchange Nat. Bk., 283 F.Supp. 464 (D. Minn. 1964), aff?d in 408 F.2d 1099 (8th Cir. 1969). See also ABA inf. op. #C‑760, p. 2 quoting from Drinker, Legal Ethics 105 (1953).
Although the trial attorneys warn of the difficulties of ?line drawing? in determining whether or not a particular lobbying effort in the future concerns the ?subject matter of former employment,? the task is no different than that presented by Rules 3.4(g) or 3.4(h) and will have to be approached on a case by case basis. In general, the Commission concludes that XYZ is free to accept employment by the insurance industry to lobby with respect to matters as to which XYZ was not involved in direct lobbying efforts to secure legislative action in the past and which do not involve the use or potential use of confidential information obtained through contacts with the trial attorneys? association regarding a particular legislative matter.
