Ethics Opinions

Opinion 07-02

             Summary: A lawyer who has provided legal advice to a state agency while in private practice is not automatically precluded by Massachusetts Rule of Professional Conduct (MRPC) 1.11(c)(1) from participating in matters about which she had previously provided legal advice and services should she be named commissioner of the same agency.            

            Facts: Lawyer is being considered for the position of commissioner of a state agency. In her private practice she has provided legal services and advice to that agency. She inquires whether if appointed commissioner, she would be precluded by the MRPC from participating in all matters about which she had previously provided legal services and advice to the agency. 

            Discussion: Rule 1.11(c)(1) provides in relevant part:

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter; . . .

            Literally read, this Rule could be interpreted as preventing Lawyer from participating in any matter involving a state agency in an executive capacity when Lawyer in her private practice had previously represented the state agency in the same, or a substantially related, matter. Such a reading makes no sense to this Committee. Rule 1.11, which deals with many matters involving present and former government lawyers, is clearly meant to cover situations where a lawyer is changing sides or changing clients. When a lawyer changes sides in the same matter, there is a fear that the lawyer’s duties of loyalty and confidentiality to one of the clients will be compromised. In the governmental context, there is the special concern that the lawyer will use her official position to advance the interests of her former private clients. Such concerns do not, however, apply in the case of this inquiry, which involves a lawyer who changes jobs, but would be acting for the same client with respect to the same matter.  We note that Rule 1.11 would not prohibit representation in the converse situation where a lawyer leaves government and continues to handle a matter she was working on for the government, even though the lawyer might be thought to have a financial incentive to leave government.

            We conclude that the framers of this Rule did not think of the possibility that its precise language could be used to forbid a lawyer who represented a state agency from continuing to participate if the lawyer was appointed to an executive position in the agency. We conclude

 

 

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therefore that the Rule ought not to be interpreted as a complete prohibition of all participation in the work of the executive department in the situation presented. We are heartened in this view by the Scope Note that introduces the MRPC and various Comments to the Rules. Scope Note 1 provides that “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.”  Comment 1 to Rule 1.11 refers to the Rule as preventing “a lawyer from exploiting public office for the advantage of a private client.” Comment 3 to Rule 1.11 refers to a purpose that the rules “should not be so restrictive as to inhibit transfer of employment to and from government.” All those purposes are best served, in our view, by the conclusion that Rule 1.11 ought not to be interpreted literally in all cases.

            One word of caution. It is difficult, without being presented with the facts of particular cases, to give a blank check that the inquiry would never present a problem under this or other Rules of the MRPC. For example, a new commissioner might have an obligation to reconsider a position advocated by the prior commissioner. If Lawyer had been a paid advocate for a state agency arguing for a particular position against a private party or other government agency now under her jurisdiction, one might conclude that it was inappropriate under the MRPC, or other applicable law, for her to direct any outcome, whether for or against the position she had previously been urging in a litigation or an adversarial setting This example may well be the situation the Rule was intended to address.     

            We have not considered the effect of M.G.L., ch. 268A or various other state rules and regulations that may exist. Such consideration would raise questions of substantive law, and such questions are beyond our jurisdiction.

 

 

This advice is that of a committee without official governmental status.

 

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on May 23, 2007.

 

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