Ethics Opinions

Opinion No. 91-7

July 1991

Summary: An assistant district attorney who had been assigned to prosecute a husband for committing battery on his wife and had done some work on the case, left to enter private practice before appearing in court on the matter. Nevertheless, DR 9-101(B) prohibits the lawyer, after entering private practice, from representing the wife in a civil action against the husband for the battery.

Facts: While working as an assistant district attorney, a lawyer had been assigned to prosecute a husband for battery on his wife. The lawyer spoke at length over the telephone with the victim, discussing the case, matters of trial procedure, and possible disposition. The victim said that she had consulted with an attorney and was considering civil action against the defendant, her husband. The lawyer also had a brief conversation with defense counsel regarding disposition. Both the victim and defense counsel were informed by the lawyer that he would be leaving the district attorney's office and would not be taking the case to trial or otherwise disposing of it. When the case was reassigned, the lawyer informed his replacement of the conversations with the victim and defense counsel but made no recommendation regarding disposition. The lawyer never represented the commonwealth in court on the matter.
Shortly after the lawyer left the district attorney's office and entered private practice, he received a call from the victim requesting that he represent her in the civil case. In his previous conversations with her, she had never discussed the possibility of retaining him after he entered private practice. The lawyer replied that he would seek ethical advice on the matter.
Discussion: Disciplinary Rule 9-101(B) states:
A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
Application of this rule to these facts requires interpretation of both "matter" and "substantial responsibility." Not having found relevant Massachusetts precedent, the committee sought guidance in case law and opinions of other jurisdictions.
In General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974), the Second Circuit disqualified a lawyer from representing in a private antitrust action a class of municipalities that had purchased buses from General Motors. The lawyer, who first worked on the private case commencing in 1972, had worked from 1954 through 1958 on a case brought by the Antitrust Division of the Department of Justice against General Motors, many of the allegations of which had been copied in the subsequent private complaint. After his direct involvement in the government action, the lawyer had in 1961 and 1962 been nominally in charge of all matters within the Washington office of the Antitrust Division, including the General Motors bus case, but had not participated actively in that case after 1958.
In reversing the district court's refusal to disqualify the lawyer, the Second Circuit stated that it did not intend to suggest any actual impropriety on his part, but his disqualification was required to comply with Canon 9's mandate that, "A lawyer should avoid even the appearance of professional impropriety." General Motors, supra, 501 F.2d at 641. The court discerned the purpose behind DR 9-101(B) as being the avoidance of having action by public legal officials vulnerable to charges that the officials might have been influenced by hope of later private employment. 501 F.2d at 648-49. This principle was obviously central to the Second Circuit's decision, even though 14 years had elapsed between the lawyer's personal involvement in the governmental antitrust case and the commencement of his role in the private action. Compare, Wolfram, Modern Legal Ethics (Practitioner's Ed. 1986) at 458-61 (decrying reliance on the "vapid concept" of appearance of impropriety but recognizing the legitimacy of the "fear that government lawyers will misuse government power" with an eye on subsequent private employment). In a case involving side switching, the Supreme Judicial Court cited General Motors as follows:
In his representation of the original client, there should be no prospect that he might later be employed by a different client to uphold or upset what he had done. General Motors Corp. v. City of N.Y., 501 F.2d 639, 649 (2d Cir. 1974). Nor, in the later representation of the adversary, should there be any possibility that the loyalty of counsel to the adversary is diluted by lingering to the original client.
Pisa v. Commonwealth, 378 Mass. 724, 726 (1979). In General Motors it was undisputed that the lawyer had "substantial responsibility" in initiating the government's antitrust action. 501 F.2d at 649. The court concluded from an examination of the respective complaints that the private action was sufficiently similar to the government action to be the same "matter" under DR 9-101(B). That the lawyer had not "changed sides" was deemed irrelevant, since the purpose of DR 9-101(B) was not to address the conflict of interest that arises when counsel changes sides. 501 F.2d at 650.
Thus, General Motors supports a conclusion that the private action that the former assistant district attorney was asked to undertake was the same "matter" under DR 9-101(B) as the criminal case to which he was formerly assigned. See also Informal Opinion 1374, Formal and Informal Ethics Opinions (ABA 1985) 258 (former SEC lawyers who had prosecuted an action by the SEC against Smith and others could not subsequently represent in a private action Jones, who had been a witness against Smith in the SEC proceeding and was impleaded by Smith into the subsequent private action in which relief was sought against Smith for the same conduct that had been challenged by the SEC). General Motors does not, however, provide much guidance on the issue of "substantial responsibility."
In Formal Opinion 342, Formal and Informal Ethics Opinions (ABA 1985) 110, the ABA Committee on Professional Ethics considered broadly the requirements of DR 9-101(B), noting (at 116) that the most difficult element to interpret was that of "substantial responsibility." The committee stated:
As used in DR 9-101(B), "substantial responsibility" envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question. Thus, being the chief official in some vast office or organization does not ipso facto give that government official or employee the "substantial responsibility" contemplated by the rule in regard to all the minutiae of the facts lodged within that office. Yet it is not necessary that the public employee or official shall have personally and in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter. With a responsibility so strong and compelling that he probably became involved in the investigative or decisional processes, a lawyer upon leaving the government service should not represent another in regard to that matter. To do so would be akin to switching sides, might jeopardize confidential government information, and gives the appearance of professional impropriety in that accepting subsequent employment regarding that same matter creates a suspicion that the lawyer conducted his governmental work in a way to facilitate his own future employment in that matter.
The element of "substantial responsibility" as so construed should not unduly hinder the government in recruiting lawyers to its ranks nor interfere needlessly with the right of its litigants to employ technically skilled and trained former government lawyers to represent them.
Formal and Informal Ethics Opinions, supra, at 118-19. (Footnotes omitted.)
Much of the thrust of ABA Formal Opinion 342 is to relieve government employees nominally in charge of, but having no actual familiarity with, a matter from being barred from subsequent private employment in the matter. Nevertheless, the quotation suggests that one who is personally involved in handling a matter is barred without parsing too nicely the tasks actually performed. In the present case, the lawyer was assigned to handle the case and did handle it in the initial stages, having substantial conversations with the victim and one conversation with defense counsel. That is sufficient to constitute "substantial responsibility."
In the committee's view, the former district attorney is barred by DR 9-101(B) from taking the proffered employment even though it probably never occurred to him that such employment might be offered once he left government service. The perception that the criminal law could have been enforced with an eye toward advancing his role as private counsel, and the need for a rule to prevent such conduct, justify this conclusion.
The committee expresses no opinion on the application of G.L. c.268A (Conduct of Public Officials and Employees), since that is outside its jurisdiction.
In light of this conclusion that DR 9-101(B) prohibits the lawyer from accepting the proffered representation, the committee did not consider whether there were confidences or secrets that the lawyer possessed by virtue of his employment as an assistant district attorney that would also have required him to decline the employment. See DR 4-101.

Permission to publish granted by the Board of Delegates on November 19, 1991. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.