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OBA Ethics Counsel

Ethics Opinion No. 296

July 18, 1980

INQUIRY

May an attorney accept private employment by a municipal board in a matter in which he had previously represented the board as a municipal employee and for which he had had substantial responsibility?

STATEMENT OF FACTS

While serving as an assistant city attorney, an attorney had substantial responsibility in representing the pension board of the city in a particular matter, including trial in district court.  After trial the attorney resigned his position as assistant city attorney and entered private practice.  The board desires to employ the attorney as a private practitioner to represent it on appeal in the same matter and he is willing to accept if he may do so ethically.  Opposing counsel urges his disqualification on ethical grounds.

OPINION

Disciplinary Rule 9-101(B), Code of Professional Responsibility, provides that:

"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

DR9-101(B) is the subject of an extensive analysis in American Bar Association Formal Opinion No. 342 dated November 24, 1975.

The four elements of the rule stated in Formal Opinion No. 342 are (1) private employment, (2) matter, (3) substantial responsibility and (4) public employees.  The issues of fact to be considered with respect to these elements are: the status of the attorney being hired, the case in which he is being asked to represent the client, the duties he will have and the duties he had previously, and his status while a public employee.

When applying the facts to the matter, which he was involved in and is being requested to represent in private practice, the determining issue is whether it is the same matter or case involving the same parties or issues.  The side of the case which the attorney is being asked to represent has no bearing as to the applicability of DR9-101(B).  An attorney is prohibited from representing consistent or inconsistent positions in the same matter.

The attorney as a public employee must have had a substantial responsibility in the matter.  This is more than a simple ministerial act of approval or disapproval.  See American Bar Association Informal Opinion No. 1129 (1969).  It contemplates acts which would indicate that the employee had a substantial involvement in the matter.

When the analysis of a fact situation involving DR9-101(B) shows that the attorney is being hired as a private practitioner to represent a client in the same matter in which he was involved as a public employee and he had substantial responsibility in the matter when a public employee as a general rule he is precluded from accepting employment.

In the fact situation presented to the Committee, the attorney is now engaged in private practice and is being requested to represent the board as a private attorney, in the same matter in which he represented the board as an assistant city attorney.  His responsibility in the case as an assistant city attorney.  His responsibility in the case as an assistant city attorney was substantial.  At the time of his previous representation of the board in the case, he was a public employee.

Were consideration of the inquiry to proceed no further, it clearly must be answered in the negative.  However, an examination of the policy considerations underlying DR9-101(B), as discussed in Formal Opinion No. 342, compels the conclusion that the facts here fall within an implied exception to the general rule forbidding such employment.

The underlying policy considerations applicable in a situation where no such obvious evil as "side-switching" is involved are set forth in Formal Opinion No. 342 as " ... 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 form avoiding the appearance of evil."

However, Formal Opinion No. 342 also sets forth "weighty policy considerations" in support of the view that a special disciplinary rule relating only to former government attorneys 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 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."

It should be borne in mind that DR9-101(B) and Formal Opinion No. 342 are addressed to the whole spectrum of the government in this country from the village to the federal.  Without suggesting that ethics should vary inversely with the magnitude of the government agency involved, it seems patent that there is much less" ... 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" at the level of a municipal pension board that at the level of a gargantuan federal agency, for the reason that the smaller the agency the more likely that such misconduct would come to the attention of those responsible for its affairs - including employment of counsel.  This policy consideration simply is not persuasive in the situation at hand.  We think that if this attorney had mishandled his assignment the board would know it and would not be interested in further representation by him.

A related factor is illustrated by General Motors Corporation v. City of New York, 501 F.2d 639, 650 (2nd Cir. 1974), where an attorney was disqualified from representing the City in a class antitrust action for the benefit of every public body providing or financing bus systems in the United States.  The attorney had formerly, as an employee of the Justice Department, worked on an investigation of the alleged monopolization by General Motors, involving many related facts.  He had undertaken the City's case on a contingent fee basis.  The Second Circuit approved the concept that it made no difference that there was no change of sides:

"We believe, moreover, that this is as it should be for there lurks great potential for lucrative returns in following into private practice the course already charted with the aid of government resources."

The Court also noted:

" ... the possibility that a lawyer might wield Government power with a view toward subsequent private gain."

This language suggests, and with justification, that the magnitude of this matter also enters into the proper application of DR9-101(B).  It is inappropriate to apply that rationale to the relatively insignificant matter at hand.

Thus the only remaining policy consideration supportive of the application of DR9-101(B) in this situation is the avoidance of the appearance of professional impropriety.  While a valid consideration, frequently relied upon, it does not here seem sufficiently weighty to override the underlying consideration favoring a construction of the rule permitting the employment.

The past and prospective client, apparently with full knowledge, desires to employ the attorney, who is willing to accept.  "[T]he 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."  [Emphasis added.]  Recognition of exceptions to the general rule is clearly implied by this language from Formal Opinion No. 342.

In the present circumstances it appears that the rule should not be permitted to interfere with the right of the municipal board to obtain competent counsel of its own choosing, because such interference would be needless and might well improve the objecting adversary's prospects in the litigation.

The exception to DR9-101(B) recognized and applied here is very narrow, and should be applied infrequently and with great care.