By: Maryam Hatcher, Esq.
Dear Ethical Esquire: I recently left my job in private practice to work for the government. I love my government job, and the experience I gained at my old firm is really helping me understand the issues that arise in my new cases. The problem is, now that I work for the government, I find that I am most often advocating for the exact opposite position that I used to take with my clients in private practice. I know that I have duties to my former clients and I want to live up to those obligations, but I don’t want to find myself conflicted out of every new case that comes my way because the general argument is adverse to one I took with my previous clients. How do I find a good balance?
– Happy Government Lawyer*
Dearest Happy: Congratulations on your new position! I am glad to hear that you are enjoying your new job and even more glad that you have given your duties to your former clients some real thought.
Transitioning between private practice and the government is common, and many times new government lawyers find themselves on opposite sides of the issues they dealt with while at their former firms. There are many ethical challenges that may arise in this situation but, never fear, you can competently perform your new role for the government without failing your former clients.
First, you may be able to take legal positions that are adverse to your clients under certain conditions. However, per ABA Model Rule of Professional Conduct 1.9(a), the matter cannot be “the same or a substantially related matter” to the one in which you represented your client. The comments to this Rule clarify that matters “are ‘substantially related’ … if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Thus, merely taking a position that is different than the position you took on a client’s behalf on a completely unrelated matter will not necessarily invoke the rule.
Also, as was touched on in the above language from the comments to Rule 1.9, the ABA Model Rules forbid you from using confidential information you gained from a former client to support your position in a later case. Specifically, Rule 1.6 says you cannot reveal confidential information you gained through the representation of your client except for certain enumerated reasons, none of which is you getting a new job in which that information would be helpful. This is true even if the new matter is completely unrelated to your representation of your former client.
Keep in mind that, with your former client’s informed consent (which you should memorialize in writing), you may be able to take an opposite position in a matter substantially-related to your former client’s matter and use your former client’s confidential information to do so.
As always, check your jurisdiction’s rules and other guidance to ensure that it comports with the above.
In a nutshell, Happy, you have to toe the line when it comes to working on matters closely related to your former client’s matters or when dealing with your former clients’ confidential information (unless you get your former client’s written, informed consent). But that does not prevent you from taking legal stands that are counter to the one’s you took in private practice.
The law is rigid, but not that rigid. Sheesh.
Now – go forth and be ethical!
*Disclaimer: “Happy Government Lawyer” is a fictional advice seeker. This blog is satirical in nature and, though it aims to provide helpful guidance regarding professional responsibility dilemmas, it is not intended to offer legal advice.
In her final post of the year, Ethical Esquire will discuss how the issue of work-life balance plays a role in meeting your professional responsibility obligations.