Quandaries & Quagmires: Navigating conflicts, confidentiality as a former government attorney

Listen to this article

Two years ago, after spending the first 20 years of my career at the Office of Lawyers Professional Responsibility (OLPR), I transitioned to private practice at a large law firm. As part of this process, I had to screen for potential conflicts of interest under Rule 1.11, Minnesota Rules of Professional Conduct (MRPC), which governs special conflicts of interest related to public lawyers. MN Court Rules

As an ethicist, this seemed straightforward until I started thinking about information — specifically “confidential government information,” and how knowledge can create a conflict of interest. Lawyers representing private clients and government lawyers have the same basic duties of confidentiality, but statutes, administrative opinions and rules can impose additional confidentiality restrictions on government lawyers. Under Rule 1.11(c), “confidential government information” is defined as “information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.” All former government lawyers should understand this definition and the ethical obligations that come with such knowledge.

In my case, the investigations and proceedings conducted by the OLPR cannot be disclosed to the public unless a petition for public discipline has been filed.¹ Dismissed ethics complaints and private discipline are confidential. I handled sensitive personal and medical information that lawyers shared to establish mitigation, or in compliance with monitoring provisions of a probation. Lawyers on probation may be required to submit to random alcohol/drug screening or to provide records documenting their compliance with mental health treatment. OLPR also receives confidential law enforcement information about criminal investigations of lawyers. This is all considered “confidential government information,” and I am ethically bound to recognize a conflict of interest based upon my knowledge of such information if it comes up in private practice.

Two years into my job as ethics counsel at a law firm, and I still encounter occasions where I evaluate whether I (or others at my firm) possess confidential government information that could trigger duties under Rule 1.11(c). It is worth reviewing these obligations in more detail.

Rule 1.11 “Special Conflicts of Interest for Former and Current Government Officers and Employees”

To whom does the rule apply? It is a specialized conflict of interest rule that applies to lawyers who are currently or formerly employed by the government, regardless of whether the employment relates to a “lawyer” role. For example, it applies to a lawyer working as a legislative analyst for a government agency as well as a lawyer who acts in a representational capacity for a government agency such as a prosecutor. Rule 1.11 applies to all stages of a lawyer’s career. It applies to lawyers moving between government roles and private practice, moving between different government agencies, and those currently working in government positions.

Rule 1.11- Former Government Lawyers

For former government lawyers like me, Rule 1.11(a) addresses conflicts of interest due to our “personal and substantial participation” in the same matter. What is the same matter? It will include matters a lawyer personally handled while working for the government. However, Rule 1.11(e) (which defines “matter” as used “in this rule”) notes that a matter “may continue in another form.” Determining whether matters are related involves an analysis of the overlap of facts, parties involved and the passage of time. See Cmt. 10. If the appropriate government entity (usually the former employer) consents to the representation, then the conflict is alleviated. Interestingly, former government lawyers transitioning to private practice may find it easier to avoid conflicts with former clients compared to their colleagues in private practice, because conflicts related to former clients in private practice also encompass “substantially related” matters under Rule 1.9(a) and (b). See Cmt. 4. Second, Rule 1.11(b) specifies that disqualifying conflicts of interest of former government lawyers are not imputed to their new law firms so long as the lawyer is timely screened, receives no fees from the matter, and the relevant government agency is given prompt written notice of the conflict. Rule 1.0(l) requires screening measures sufficient to isolate the lawyer from participation and use of screening mechanisms designed to prevent the dissemination of confidential information.

Rule 1.11- Current Government Lawyers

Current government lawyers are covered under Rule 1.11(d), which notes they are subject to the regular rules governing conflicts of interest with current and former clients (Rules 1.7 and 1.9). Under Rule 1.11(d)(2) current government lawyers also cannot participate in a matter in which they were personally and substantially involved in while in private practice without government consent. The rule aims to prevent government lawyers from leveraging public office for the benefit of any client as well as protecting former clients so Rule 1.11(d)(2) applies irrespective of the lawyer’s relationship with the former client.² See Cmt. 3. Rule 1.11(d)(2) also prohibits current government lawyers from negotiating with a party or lawyer for a party in a matter where the lawyer is participating personally and substantially.

Rule 1.11- Confidential Government Information

What about confidential government information? Rule 1.11(c) prohibits government lawyers from representing private clients in matters where they acquired confidential government information about a person if the interests of the client are adverse to that person and the information acquired could be used to the “material disadvantage of that person.” The lawyer needs to have “actual knowledge” and knowledge cannot merely be imputed to the lawyer. See Cmt. 8 and Rule 1.0(g) defining “know”. The lawyer also needs to have acquired the information while in government service.

What matters are covered by Rule 1.11(c)? This will include matters that the lawyer personally handled while working with the government but the rule is not completely clear that it could not include other matters if there was an overlap of facts, parties, and no substantial passage of time. See Cmt. 10. A good rule of thumb is that former government lawyers may not use or disclose confidential government information and should not be personally involved in matters where such information can be misused.

There are two notable points of distinction with Rule 1.11(c). First, “confidential government information” in Rule 1.11(c) is defined more narrowly than “confidential information” under Rule 1.6, which focuses on information relating to the representation of a client. Second, if a lawyer is conflicted for possessing confidential government information, the conflict of interest is not waivable. Unlike Rule 1.11(a)(2) and (d)(2), subparagraph (c) has no language authorizing the government, the client or person against whom the information could be used to waive the conflict of interest.

Opinion 509 “Disqualification to Prevent the Misuse Use of ‘Confidential Government Information’”

There is some new guidance to assist former government lawyers transitioning into private practice. On Feb. 28, 2024, the American Bar Association’s (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 509 interpreting how Rule 1.11(c), Model Rules of Professional Conduct, prevents current and former government lawyers from misusing confidential government information about third persons that was acquired under government authority. Ethics Opinions (americanbar.org) Opinion 509 clarifies the scope of Rule 1.11(c) and explains how Rule 1.11(c) protects people from government lawyers misusing confidential information obtained through government authority.

The Opinion differentiates the responsibilities of government lawyers stemming from their access to confidential government information under Rule 1.11(c) from the typical duty of confidentiality owed to clients under Rule 1.6. First the rule aims to deter government attorneys from abusing their position and the confidential information acquired through the authority inherent in that position. Thus, confidential government information includes information that could be detrimental to any person or entity, not just a former client. Second, the rule applies regardless of the specific employment role the lawyer had when they gained access to the confidential information. Rule 1.11(c) can cover information not shielded under Rule 1.6, which applies only to information a lawyer obtains while representing a client. Law enforcement, administrative, policy and advisory positions are categories of public employment that can trigger the prohibition of Rule 1.11(c) when a lawyer holds the job. Third, the rule does not cover all government information; only that information obtained under government authority and that which it is legally obligated to protect. The reason government lawyers cannot disclose or use such information is prefaced on the government’s underlying duty to protect the information as opposed to a duty of confidentiality owed to a specific client. See Cmt. 8. Fourth, confidential government information must be “obtained under government authority” such as through a government subpoena, warrant, or other government power but it also has to be not public or subject to legal privilege to be covered by Rule 1.11(c). Formal Opinion 509 notes that whether information is considered available to the public and whether it could be used to a person’s material disadvantage are questions of fact specific to each matter.

Opinion 509 also analyzes what public employees are covered under Rule 1.11(c) — former, current or both? The committee concludes it covers both current and former government lawyers, as well as any lawyer who has previously worked for the government in a non-representational capacity, whether full-time or part-time. The committee arrives at this conclusion by interpreting the plain text of the rule as well as public policy considerations.

Rule 1.11 governs conflicts relating to both former government lawyers in Rule 1.11(a) and (b) and current government lawyers in Rule 1.11(d). Conversely, Rule 1.11(c) does not on its face limit application to either subset but instead speaks in general terms of “a lawyer having information that the lawyer knows is confidential government information” (Emphasis added). This also makes sense from a public policy standpoint. The committee notes that, even if a lawyer is employed by the government or holds a part-time governmental position, there are justifiable reasons to exempt current government employees from disqualification provisions aimed at preventing them from using confidential government information for private client advantage.

Finally, Opinion 509 answers the question of who is a “private client” under Rule 1.11(c). A private client could refer to a client in a lawyer’s private practice, which could be a public official or government entity. It could also refer to a client who is a private person or organization, i.e., not a public official or government entity. Or it could be both.

The committee concludes Rule 1.11(c) “applies in the very least to private persons and entities whom a lawyer represents in private practice” irrespective of whether the lawyer has left government employment or has a part-time private practice while still working for the government. An example would be a part time public defender who also has a private practice. Private clients can also include public officials and government entities provided that the public entity does not own is the information and is not entitled to utilize it.

Conclusion

Attorney discipline cases involving violations of Rule 1.11 are rare.³ Most former government lawyers have the common sense to not be involved in matters they handled personally while in government employment. Screening for conflicts arising from knowing about “confidential government information” is trickier. One thing law firms can do is generate a report of all new clients/matters and preliminary conflict searches. My firm runs a “daily matter” report every day. I review the report to search for any overlap in my prior government work. Opinion 509 is a welcome resource for former government lawyers as well. I will be sending it to all of the former government lawyers in my firm to read, and as a reminder that a lawyer’s duty to monitor for conflicts of interest is ongoing.

Cassie Hanson is a legal ethics lawyer with substantial experience in the field of ethics and professional responsibility. As conflicts and ethics counsel at Fredrikson & Byron, P.A., Cassie is focused on legal ethics, conflict prevention and resolution, legal malpractice/loss prevention and trust account compliance. Additionally, Cassie worked for 20 years as a senior litigator and adviser at the Office of Lawyers Professional Responsibility. Cassie investigated and prosecuted high-level attorney discipline cases. She is an experienced trial attorney and appellate advocate who regularly argued complex attorney discipline cases in front of the Minnesota Supreme Court. She has advised various government agencies, law firms and other stakeholders on legal ethics and professional responsibility. Cassie is a frequent public speaker on ethics and lawyer well-being.

Endnotes

¹ Rule 20, Rules on Lawyers Professional Responsibility, (RLPR) governs the confidentiality of the investigations and proceedings of the OLPR.

² Rule 1.11(a)(2) is likewise focused on preventing abuse of public office since it does not require adversity for a conflict of interest to exist for former government lawyers.

³ “Rule 1.11 has not been the subject of any allegations of misconduct that led to public discipline in Minnesota. Violations of the rule, however, have resulted in private admonitions in a tiny handful of matters over the years…” Martin Cole, “Government Lawyer Conflicts”, p. 2, Bench & Bar (September 2013). Also, noting in 2013 the violations of Rule 1.11 involved current government lawyers in matters involving former clients from their private practice. Id. at p. 2-3.