|Oregon State Bar Bulletin NOVEMBER 2007
Some people are born to public service and will remain there throughout their careers. Others see it either as respite from the vagaries of private practice or as a stepping stone to a more lucrative private practice. Making a move from the public to the private sector definitely has its challenges. For one, public employees, judges, arbitrators, mediators and other third-party neutrals must abide by strict ethics rules that prohibit them from negotiating for employment under certain circumstances. The rules for public lawyers are more rigid than those applied to private law practitioners in similar job negotiation situations. Because they are more rigorous, understanding how they work becomes even more important.
Oregon RPC 1.11(d)(2)(vi) provides that a lawyer who is currently serving as a public officer or employee shall not:
negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk or staff lawyer to or otherwise assisting in the official duties of a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).1
By contrast, when lawyers in private practice are interested in pursuing employment with adverse parties or adverse lawyers in a pending matter, they must consider whether they have a personal conflict of interest. Under Oregon RPC 1.7(a)(2), if there is a substantial risk that a lawyer’s responsibilities to a client may be materially limited by the lawyer’s interest in a prospective job, then the lawyer must, at minimum, obtain the client’s informed consent, confirmed in writing, before continuing with either the job negotiations or the client’s pending legal matter. See, ABA Formal Op No 96-400. Thus, unlike for lawyers in private practice who are looking for another job with an adverse party or lawyer, the prohibition against employment negotiations for government lawyers is absolute: the conflict cannot be waived.
Personal and Substantial Participation
The issue of lawyers working on a matter for the government while exploring employment prospects with the participants and their law firms has not been an important source of disciplinary actions or ethics opinions. See Annotated Model Rules of Professional Conduct, 5th ed., at 206 (2003). However, there is some authority in other jurisdictions that discusses "personal and substantial participation" in the context of the government lawyer conflict rules in Oregon RPC 1.11, which should also be relevant to the interpretation of Oregon RPC 1.11(d)(2)(vi). See, e.g., D.C. Ethics Op 315 (2002)(former lawyer with the Environmental Protection Agency was allowed to represent private clients in litigation to challenge the EPA’s final rules, even though he drafted status reports and was involved in discussions about the timing of the rule-making proceedings, because he was not involved in the litigation, but only in peripheral administrative issues).
OSB Formal Op No 2005-120 also explores the conflict issues when switching between government and private practice,2 but does not really discuss the issue of what exactly personal and substantial participation means or how it might be applied to a particular set of facts. The opinion does cite ABA Formal Ethics Op No 342 (1975), which defines the phrase substantial responsibility in light of former DR 9-101: "‘Substantial responsibility’… 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…"
The term matter, unlike the phrase personal and substantial participation, is specifically defined in Oregon RPC 1.0(i) to include:
…any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and any other matter covered by the conflict of interest rules of a government agency.
Notably, the definition excludes legislation, rule-making and other policy determinations. It is identical to the definition adopted in the ABA Model Rule 1.11(e), which originated in ABA Formal Ethics Op 342 (1975):
[W]ork 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 Model Code 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.
Recognize too, that a matter may continue in a different form. In determining whether matters are the same, "…the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed." ABA Model Rule 1.11, Comment .
Assuming that a government lawyer is personally and substantially participating in a matter, the issue becomes whether the lawyer is engaged in negotiations for employment. I have found no authority that defines negotiating for employment as prohibited by Rule 1.11(d). According to the Merriam-Webster Online Dictionary, negotiate means "to confer with another so as to arrive at the settlement of some matter… to arrange for or bring about through conference, discussion, and compromise." The definition suggests that negotiation requires some active discussion with another about a particular matter with the goal of arriving at an agreement. Thus, if a government lawyer simply peruses the classifieds, has general discussions about job interests or makes limited inquiry about job possibilities, these activities would not seem to rise to the level of negotiating for employment.
Although there is no authority directly discussing Oregon RPC 1.11(d)(2)(vi) and job negotiations, ABA Formal Op No 96-400 addresses the ethics of a private lawyer engaging in job negotiations with an adverse firm or party. In attempting to identify the point at which a personal conflict arises that requires client consultation, the ABA Legal Ethics Committee examines the lawyer’s role in the representation and the extent to which the lawyer’s interest in the employment with the adverse firm is concrete, communicated and reciprocated. When a lawyer agrees to participate in a substantive discussion of his experience, business potential or terms of association, the opinion says there would be a conflict that requires disclosure and consent from the client. By analogy, a government lawyer’s substantive discussions with an adverse firm or party with the goal of securing employment would clearly constitute negotiations prohibited by Oregon RPC 1.11(d)(2)(vi).
Although the ABA opinion makes a valiant effort at drawing a line in the sand that private lawyers should not cross without client consent, that line may not fully apply to the government lawyer situation and may move depending on the circumstances. In other words, without some authority, do not assume that anything less than the substantive discussions are allowed.
In many cases, the obvious answer to the problem of negotiating for private employment with an adverse party or firm is for the government lawyer to wait until the matter is concluded or to disengage from any personal or substantial participation in the matter. When this solution is not feasible, particularly for those government lawyers who work in small communities, lawyers are advised to tread cautiously, because the rule prohibiting negotiations is a rigorous one with little guidance from authorities on how it would be applied in any given situation.
Note: The bar’s Legal Ethics Committee is in the process of drafting an opinion on this subject, which may help clarify the issues raised in this column.
1 Oregon RPC 1.12(b) also prohibits judges and other third-party neutrals from negotiating for employment with parties to matters in which they are participating personally and substantially, but allows law clerks to do so as long as they first notify their judges.
2 OSB Formal Op No 2005-120 was recently amended to clarify the rules regarding imputation of conflicts applicable to current and former government lawyers.
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at firstname.lastname@example.org.
© 2007 Helen Hierschbiel