Ethics Advisory Opinion No. 06-01

June 2, 2006
Issue:
May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders?
If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent violation of the protective order?

Would it be permissible for the County Attorney’s Office to provide such legal assistance to victims of domestic violence as a governmental service and thereafter prosecute subsequent violations of the protective order if the civil division of the office assisted in the civil protective order and the criminal division in any subsequent prosecution?
Opinion: While statute, ordinance or employment contract may prohibit a government lawyer from representing individuals on a pro bono basis, the only ethical prohibition would arise from conflicts of interest provisions. Conflicts of interest rules would not prohibit the initial private representation but would prohibit the individual government lawyer from thereafter having any involvement in the prosecution of the abuser. It is conceivable that the pro bono work of one government lawyer in a large office with different divisions would have no impact upon another government lawyer in a different division handling a related matter for the government. However, it would be improper for the second lawyer to undertake to represent the governmental entity if the pro bono work undertaken by the first lawyer could create a material limitation for that second lawyer. Finally, two separate divisions of a governmental office can be established to undertake potentially conflicting work, provided that attorneys in one unit do not in any way “participate” in the work of the other unit (best achieved through “screening”) and provided that any representation of an individual or non-governmental entity fully complies with Rule 1.8(f).
Facts: The County Attorney’s Office seeks to help victims of domestic violence obtain protective orders in civil cohabitant abuse actions, since such individuals may be deterred from obtaining this protection without legal representation. The County Attorney seeks to provide full representation, including appearing in court on behalf of the victim, not merely to provide information sufficient to permit the victim to proceed pro se. 1 The County Attorney’s Office, however, does not wish to provide this assistance at the expense of being able to prosecute the abuser, either for the initial incident or for future incidents, including incidents that are violations of the order. The County Attorney’s Office asks about the possibility of one attorney providing this representation “pro bono” and about the possibility of a division of the Office providing this representation as part of its regular public service. Both scenarios are addressed here.
Authority: The questions must be answered in light of the Utah Rules of Professional Conduct (2005) and EAOC Opinions:
Rule 1.7 regarding concurrent conflicts of interest (actual and potential) of the attorney
Rule 1.9 regarding successive conflicts of interest of the individual attorney
Rule 1.11 regarding conflicts of interest for government lawyers
Opinion No. 98-01
Opinion No. 01-06A
Analysis:
Applicable Rules
Rule 1.7 provides in relevant part:
. . . A lawyer shall not represent a client if . . . There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or . . . by a personal interest of the lawyer.
Rule 1.9 provides in relevant part:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. . . .
Rule 1.11 provides in relevant part:
(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee:
(d)(1) is subject to Rules 1.7 and 1.9 and
(d)(2) shall not
(d)(2)(I) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing .
County Attorney Undertaking Private Pro Bono Representation
This Committee has previously addressed similar questions of conflicts of interest as they apply to an individual part-time county attorney who also maintains a part-time private practice. 2 To the extent that the County Attorney’s office contemplates permitting one of its attorney employees to occasionally engage in pro bono work for private clients, we rely upon these prior opinions. 3
Our prior Opinions largely answer the first two questions. Opinion No. 01-06A (issued June 12, 2002) and Opinion No. 98-01 both address the conflicts involved when a part-time county attorney undertakes private representation in a civil cohabitant abuse action. Opinion No. 01-06A concluded that a part-time county attorney is not prohibited from representing a defendant in a civil protective order case, but if a criminal case arises out of the initial incident or is brought for violation of the protective order, that individual county attorney may not represent the defendant client or the county in such a case. 4 Opinion No. 98-01 considered the situation in which the part-time county attorney represents the victim/plaintiff in a cohabitant abuse action. There, if a subsequent criminal case is filed against the opponent/respondent, that individual part-time county attorney need not withdraw from representing the victim/plaintiff in the civil action but cannot be involved in the prosecution and must refer it to an appropriate conflict attorney. The Committee reasoned that because the interests of the victim-client and the county might diverge, the attorney may have confidential information from the private client, and the prosecutor’s neutrality might be compromised by his private representation; it would be unethical for the part-time county attorney to be involved in the prosecution of this matter. 5
Thus, an individual county attorney may, under the rules of professional conduct, provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders. However after the county attorney has done so he may not be involved in the prosecution of the perpetrator for the initial act or for a subsequent violation of the protective order. And he may only continue the pro bono representation if he is fully able to comply with Rule 1.7(a) where his personal interest in his paid work for the County does not create a material limitation.
Our prior Opinions have further established that the part-time county attorney must, at the outset, fully inform the client of potential conflicts and the need to withdraw if actual conflicts arise. Moreover if the possibility of a conflict arising is likely and if that possibility will materially interfere with the lawyer’s representation, the lawyer should not undertake the case initially.
Imputation of Conflicts of Interest to Other Attorneys in County Attorney Office
The second issue is whether the conflict of one county attorney undertaking individual pro bono representation is attributed to others in the office.
In the past some have looked to Rule 1.10 to indicate when conflicts of interest are imputed to others within a governmental law office. However, in November, 2005 the Utah Supreme Court adopted revised versions of Rules 1.10 and 1.11 which now make clear that Rule 1.10 is not intended to and does not apply to impute conflicts of interest within a government law office. 6 Instead, solely Rule 1.11 governs any imputation of conflicts of interest for government lawyers 7 unless the Rules expressly provide otherwise. 8
Rule 1.11(d) expressly deals with conflicts of interest for the current government lawyer and provides that the government lawyer “shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment. . . .” As comment [2] to Rule 1.11 states, “paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” Hazard and Hodes likewise note:
Because governmental lawyers in the same government agency are not subject to the imputation rule, the legal work of the government may go forward whether or not other affected parties consent, and whether or not the personally disqualified lawyer is screened in the normal sense. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
* * * * * * *
Rule 1.11(d) does not require disqualification of anyone except the affected government lawyer individual. Accordingly, there is no reason for this paragraph to advert to screening and it does not. However . . . the lawyer is required to avoid ‘participating’ in the matters in question. This could imply that isolating the lawyer from the office’s work in the matter – a form of screening – is required after all . . . . One important reason to screen government lawyers . . . is to avoid a motion to disqualify the entire government office or “firm.” HAZARD AND HODES, THE LAW OF LAWYERING § 15.9
Similarly, the amendments make clear that Rule 1.11 applies to concurrent representation by government lawyers as well as successive representation. The name of the rule was changed from “Successive Government and Private Employment” to “Special Conflicts of Interest for Former and Current Government Officers and Employees.” Likewise, comment [9] and expert commentary clarify that it should apply to concurrent representation as well. Hazard and Hodes explain that Rule 1.11(d) applies when a government lawyer has a concurrent conflict:
Paragraph (d) controls situations in which a lawyer is currently serving the government. . . A government lawyer might have competing responsibilities to others that could materially limit representation of the government. For example, it is not unheard of for lawyers representing state and local government units to be representing other clients with conflicting interests while also representing the government. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
Rule 1.11 has been looked to when considering concurrent conflicts of interest of government lawyers given “the policy and practical reasoning behind the rule.” See Vermont Ethics Opinion No. 2003-04 at www.vtbar.org (addressing part-time assistant attorney general who also serves “of counsel” at a law firm).
For these reasons we conclude that the pro bono work of one government lawyer will not create a conflict of interest that will be imputed to others in the government office providing that the pro bono lawyer does not “participate” in the conflicting work that the government office undertakes. We further note, however, that Rule 1.7 regarding concurrent personal conflicts of interest must be fully complied with by both the pro bono lawyer and the government lawyer. Thus, if there is a “significant risk that the representation of” either the pro bono or the government client “will be materially limited” by the attorneys’ relationships with one another or by either attorney’s personal interests, the conflicting representation cannot go forward.
Finally, we note that this interpretation of the Rules of Professional Conduct does not control whether a court will find grounds to disqualify an attorney or an office, particularly where there are constitutional rights involved. While “screening” is not required of government lawyers under these rules, undertaking a screening mechanism (see below) may be wise to minimize the possibility of disqualification.
Establishing Separate Divisions to Handle Possible Conflicts
The County Attorney asks about the viability of assigning civil work for domestic violence victims to an individual or division within the County Attorney’s Office separate from the individual or division that prosecutes criminal cases.
This scenario adds one further complication to the analysis above in that it proposes doing work for a client (the victim) while being paid by another entity (the county) as addressed in Rule 1.8(f) Utah Rules of Professional Conduct. Such an arrangement is permissible only if the attorney maintains a confidential relationship solely with the victim-client (not the county-employer), permits only the victim client to direct the attorney’s work, and obtains informed consent to this arrangement from the victim client. “Informed consent” is now defined in the Utah Rules of Professional Conduct as denoting “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Here, again, Rule 1.11 would not impute the disqualification of one government attorney to other governmental attorneys if each of the two attorneys did not “participate” in the conflicting work of the other. The underlying concern is that for each client confidentiality and independent legal judgment must be fully protected.
This Committee considered the issue of conflicts of interest within a governmental law office in Opinion No. 142 (1994) dealing with the office of the Attorney General. Opinion No. 142 established that Rule 1.10 (defining a “firm” and imputing disqualification to all within the “firm”) does not apply to the office of the Attorney General and the conflicts of one Assistant Attorney General are not necessarily imputed to all other attorneys in that office. Opinion No. 142 (1994). That Opinion concludes that the Office may represent different agencies with adverse interests or positions so long as “the attorneys with conflict problems are removed and screened from the particular representation at issue.” Accordingly, the Attorney General’s office has been organized to operate through different “divisions.”
While there were constitutional reasons for that analysis with regard to the Attorney General, we now make clear that other governmental law offices are also permitted to organize themselves in such a way as to constitute two separate “firms” 9 and undertake conflicting representation. In order to guard most effectively against disqualification motions, it would be “prudent” for the attorneys with potentially conflicting responsibilities to be entirely screened from one another, not sharing access to the same confidential files (see Rule 1.6) or operating so that one attorney has “managerial authority” or “supervisory authority” over the other (see Rule 5.1). However, even if no formal screening system is put in place, government attorneys comply with the ethical rules if they ensure they do not “participate” in any matter for which they have a personal conflict of interest.
We further note that undertaking such an endeavor in which one section of a government office represents victim-clients would result in the governmental entity owing all the duties of a lawyer to the victim-clients and those victim-clients having possible claims against the governmental entity.
Conclusion:
The conclusion is that it could be possible for a County Attorney’s Office to organize itself in such a way as to ethically provide representation for individual client victims in civil cohabitant abuse actions and then later permit a separate division or attorney in the Office to represent the state in any related criminal prosecution. However, any such organization would have to prohibit any confidential information from flowing from one sector to the other. Similarly, it is possible for a government lawyer to undertake pro bono representation without having a conflict imputed to other government lawyers provided the pro bono lawyer is kept entirely apart from any conflicting representation (and the other government lawyers have no access to the pro bono lawyer’s confidential files and no ability to influence the pro bono lawyer in his work.) Whether those services are provided by separate divisions or by pro bono representation, the County Attorney’s Office would have to assure that there was no “significant risk” that the county attorney’s representation of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. Rule 1.7(a).
Footnotes
1 We note that providing “general legal information” or “clerical assistance” to a victim seeking a protective order is not the “practice of law” and hence can be undertaken by the staff of the court or the county attorney’s office. See Supreme Court R. Prof. Prac., ch. 13A, Rule 1.0 (c) (2005).
2 This Committee has also addressed conflicts of interest as they apply to the Office of the Attorney General Opinion in No. 142, to an Assistant Attorney General serving as a hearing officer in Opinion No. 03-01, and to a private attorney with a partner who serves as a part-time judge in Opinion No. 95-02A which are related and relied upon to some extent here.
3 We note that such pro bono work would not be part of the attorney’s duties for the county and thus the county could incur no liability for it and the client would need to be fully and clearly advised that the attorney is not acting in the capacity as a government lawyer but as a private volunteer.
4 State v. Brown 853 P.2d 851 (Utah 1992) prohibits a prosecutor from appearing as defense counsel in a criminal case. The Committee concluded that the on-going civil representation of a person also charged with a crime would be prohibited under Rule 1.7 because the lawyer’s responsibilities to another client (the county) would materially limit his representation of the client.
5 Inconsistent with Opinion No. 98-01, we concluded in Opinion 01-06A that a part-time county attorney would have to withdraw from representing the victim in a civil cohabitation abuse action as well. To the extent that conclusion is over broad, our opinion here is to be considered as modifying Opinion 01-06A. Rather, Rule 1.7(a) would find a conflict where “there is significant risk that the representation” of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. This is a fact-specific and case-specific inquiry. We note that the “personal interest” of a part-time county attorney who also maintains a part-time private practice may be factually different from the interest of a full-time county attorney undertaking occasional pro bono representation.
6 Paragraph (e) and Comment [7] were added to Rule 1.10 and Comments [2], [3] and [9] were added to Rule 1.11 together with a redrafted paragraph (d) of Rule 1.11 seeking to clarify that Rule 1.11 is the exclusive rule governing imputation of conflicts of interest applicable to current or former government lawyers. See ABA Model Rules 2000 with Redlining and the Reporters Explanation Memos available on the ABA website at: http://www.abanet.org/cpr/e2k-report_home.html
7 This Committee’s Opinion 98-01 states: “In withdrawing from the criminal matter, the limitations and requirements of Rule 1.10 . . . describing imputed disqualification among attorneys associated in a firm, must also be strictly followed.” While this interpretation applies to the part-time attorney withdrawing from his private practice representation; it does not apply to a part-time county attorney withdrawing from any governmental representation.
8 Rule 1.12 governs imputed disqualification of an attorney (including a government attorney) who had previously served as a judge, other adjudicative officer or law clerk.
9 Utah Rules of Professional Conduct (2005) now define “firm” to include “other association authorized to practice law . . . or lawyers employed in . . . the legal department of a corporation or other organization.” Rule 1.0

Ethics Advisory Opinion No. 99-05

Approved July 30, 1999
Issue:
What are the ethical implications of the Office of the Attorney General’s proposed investigation to determine whether any Utah criminal laws were violated by the Salt Lake City Bid Committee for the Olympic Winter Games in view of the Attorney General’s prior association with the Bid Committee?

Opinion: The Utah Rules of Professional Conduct apply to the Attorney General and to each lawyer in the Office of the Attorney General on an individual basis. An evaluation of the ethical issues raised by the investigation invites inquiry under Rule 1.11(c) and Rule 1.7(b). Based on our review of the limited facts before us, we believe that neither the Utah Rules of Professional Conduct, generally, nor Rules 1.11(c) and 1.7(b), specifically, prohibit the Investigation per se. Because the analysis mandated by Rule 1.7(b) is fact- and context- specific, however, each lawyer responsible for or participating in the Investigation has an affirmative obligation to undertake an independent evaluation as to whether the requirements of Rule 1.7(b) are satisfied at each stage of the Investigation. At a minimum, such analysis requires that the Attorney General and each investigating lawyer reasonably conclude at each stage of the Investigation that their respective duties to consider, recommend and carry out appropriate courses of action with respect to the Investigation are not impaired by reason of any competing professional, personal or other interests.
ANALYSIS
Introduction. In early 1999, the Office of the Attorney General (the “Office”) announced its intent to undertake an investigation to determine whether Utah criminal laws were violated by the Salt Lake City Bid Committee, which is being led by the Chief Deputy Attorney General (the “Investigation”). In view of the Attorney General’s prior association with the Bid Committee, Utah’s Solicitor General has requested an “ethics opinion or other guidance concerning the [Investigation] in view of the Attorney General’s involvement with the Bid Committee.”
Background. The Bid Committee, a Utah nonprofit corporation, was formed in 1988 to seek the nomination of the United States Olympic Committee (“USOC”) to represent the United States in the international bidding process of the International Olympic Committee (“IOC”) to be selected as the host of the Olympic Winter Games. Following the USOC’s 1989 selection of Salt Lake City as the United States bid entry, the Bid Committee actively sought the 1998 Winter Games.
In August 1989, Utah’s Attorney General, who was then in private practice, was invited to join the Bid Committee’s newly expanded Board of Trustees (the “Board”). After attending the first two meetings of the Board, the Attorney General resigned from the Board because of her intervening appointment as Utah’s Solicitor General.1
In 1991, the IOC awarded the 1998 Winter Games to Nagano, Japan. The Bid Committee then sought and, in 1995, was awarded the 2002 Winter Games. In late 1998, news reports indicated that Bid Committee representatives may have engaged in activities intended to influence IOC representatives improperly to award the Games to Salt Lake City. Numerous investigations concerning the efforts of Salt Lake City and other Olympic host cities followed.2
Applicability of the Rules. The Attorney General and each lawyer in the Office are subject to the Utah Rules of Professional Conduct. The Rules apply on an individual lawyer basis, and “[a]ny lawyer or supervising lawyer in [the Office] who cannot individually satisfy the requirements of [the applicable Rules] should not engage in the representation in question.”3The Rules relevant to the issue before us are Rule 1.11(c), which governs successive private and government employment, and Rule 1.7(b) which governs conflicts of interest arising out of a lawyer’s responsibilities to others or the lawyer’s own interests.4
Application of Rule 1.11. Rule 1.11(c) provides in relevant part that, “a lawyer serving as a public officer or employee shall not . . . participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment . . . .”5The fundamental purpose of Rule 1.11(c), protection of client confidences when an attorney moves from private practice to government service, assumes an attorney-client relationship and an exchange of confidential information that must be protected after the attorney moves to government service. Our review of the information submitted to us indicates that there was no attorney-client relationship between the Attorney General and the Bid Committee that would have given rise to an expectation of privileged communications between the Attorney General and the Bid Committee. The Solicitor General’s request for ethics guidance states that “[a]t no time did [the Attorney General] act as the Bid Committee’s lawyer.” We accept this statement at face value and see nothing in the materials submitted to us indicating otherwise. However, application of Rule 1.11(c) is not limited to the government attorney’s prior participation in a matter as an attorney. A “substantial participation” on a personal, non-attorney basis would involve a Rule 1.11(c) analysis. With the information supplied to us, we conclude that her personal involvement was not substantial.6
Because creation of an attorney-client relationship is fact-specific, it is incumbent on the Attorney General to evaluate independently her involvement with the Bid Committee and its individual members to determine whether an attorney-client relationship was created. We note, however, that even if (i) an attorney-client relationship existed, (ii) the Attorney General’s association with the Bid Committee constituted a “matter” within the ambit of Rule 1.11,7and (iii) the Attorney General “participated personally and substantially” in the matter while in private practice, any resulting conflict of the Attorney General would not be imputed to the entire Office. A conflict of interest involving a lawyer moving from private practice to government service is strictly personal to the lawyer, and does not disqualify the governmental office to which the lawyer moves, so long as appropriate means are employed to protect against disclosure of confidential communications or information.8
Application of Rule 1.7. Rule 1.7(b) provides in relevant part that: “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; and (2) Each client consents after consultation.”9
Rule 1.7(b) is intended to prohibit a lawyer from representing a client when the representation would be impaired by the lawyer’s responsibilities to others or by the lawyer’s own personal interests. The principal comment to Rule 1.7(b) explains that loyalty to and representation of a client are “impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.”
Unlike Rule 1.7(a), which arises only in the face of an actual, direct conflict between two or more clients, Rule 1.7(b) “applies whenever representation of a client may be impaired or limited by the attorney’s responsibilities to others, and does not depend upon the existence of an actual adverse relationship, ‘direct’ or not.”10The focus of Rule 1.7(b) is not on an existing or potential adverse relationship, but on the nature of a lawyer’s responsibilities to others or the lawyer’s own personal interests, and the extent to which such interests may limit the quality of the lawyer’s representation of a client’s interests.11 “The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment.”12Rule 1.7(b) “protect[s] against the risk that the pull of other interests will impair the quality of the lawyer’s representation . . . . [and] seeks to insure that a lawyer’s range of options on behalf of A are not limited by responsibilities that the lawyer also owes to B, whether B is another client, a third party or the lawyer himself.”13
While the competing interests influencing a lawyer’s judgment may be apparent, the strength of the interests and the likelihood that they will eventuate into a conflict and impermissibly impact the lawyer’s judgment may vary. Thus, we have avoided construing Rule 1.7(b) as establishing any bright-line rules and have consistently interpreted the rule to require lawyers to undertake a case-by-case evaluation of the relevant facts and circumstances in determining whether the Rule requires refusal or termination of representation.14Rule 1.7(b)’s inquiry, like its counterpart under Rule 1.7(a), is objective rather than subjective. In the past, we have not attempted to establish an exhaustive list of facts that a lawyer should consider when confronted with a potential conflict under Rule 1.7(b). While we continue that practice here, we believe that a proper Rule 1.7(b) analysis should involve consideration of at least the following factors: (i) the identity of the client, the client’s interest and the existence, nature and strength of any potentially competing interests, (ii) whether representation of the client may be limited by such interests and, if so, the likelihood and materiality of the limitation,15and (iii) whether the lawyer undertaking the representation has reasonably concluded from an objective standpoint that the representation will not be adversely affected by any potential material limitation on the representation.
When evaluating whether a proposed representation is permissible under Rule 1.7(b), additional principles are relevant. First, the burden of balancing all relevant factors and determining the propriety of the representation is borne primarily by the lawyer undertaking the representation. When a lawyer has evaluated the competing interests and reasonably concluded that any limitations are surmountable, the lawyer’s judgment will be set aside only if it is determined that a disinterested lawyer acting in good faith would have reached a different conclusion.16Second, the analysis mandated by Rule 1.7(b) is dynamic. Rule 1.7(b)’s proscription may operate to bar proposed representation or may require the termination of an existing, ongoing representation.17
Here, the inquiry is whether the Investigation may be materially limited by the Attorney General’s prior connection to the Bid Committee. In light of the limited facts before us and the individual, fact-specific and ongoing analysis mandated by Rule 1.7(b), we are unable to opine as to whether the Office’s representation of the State, generally, or each lawyer’s participation in the Investigation, specifically, in fact satisfies or fails to satisfy the requirements of Rule 1.7(b). To provide the requested ethical guidance, however, we make the following observations and suggestions which, in light of Rule 1.7(b)’s contextual approach, illustrate the considerations that the Attorney General, the Chief Deputy and each lawyer involved with the Investigation must make on an individual basis.
Because the Office decided to undertake the Investigation, we assume that the Attorney General concluded that the Investigation (i) would not be materially limited by her prior connection with the Bid Committee, or (ii) would not be adversely affected by any such limitation. Further, because the Chief Deputy Attorney General accepted responsibility for the Investigation, we assume that he and each attorney participating in the Investigation independently concluded that their respective participation (i) would not be materially limited by their loyalty or responsibilities to the Attorney General, any third party or by their own personal interests, or (ii) at a minimum, would not be adversely affected by any such limitation.
In doing so, each lawyer should have carefully considered (i) the nature and extent of the Attorney General’s involvement with the Bid Committee (e.g., was she one of many who participated only at the general Board level with little or no day-to-day involvement in the Bid Committee’s activities as would first appear, or was she involved in managing or carrying out the organization’s day-to-day business), (ii) the duration of the Attorney General’s connection to the Bid Committee, both formal and informal (e.g., did she have any form of continuing connection to or knowledge of the Bid Committee’s activities even though her formal Board service was brief), and (iii) the likelihood that the Investigation could reach back to the period of time that the Attorney General was involved with the Bid Committee.
Moreover, the Chief Deputy and every other attorney participating in the Investigation should have considered, and must continue to consider throughout the Investigation, (i) the existence and strength of the pull of any competing professional, personal or other interests (reputational, employment-related, personal loyalty, friendship, etc.), and (ii) the likelihood that such interests could impair the attorney’s duty to consider, recommend and carry out on behalf of the State of Utah appropriate courses of action with respect to the Investigation.18 To the extent that such considerations indicate that a lawyer could not reasonably conclude that his or her participation in the Investigation will not be adversely affected, the lawyer’s participation must terminate.
CONCLUSION
Neither Rule 1.11(c) nor Rule 1.7(b) necessarily prohibits the Investigation by the Office of Attorney General. The Rules require, however, that a fact-intensive analysis be undertaken to assure that their requirements are satisfied. Accordingly, each lawyer has an affirmative obligation to undertake an independent evaluation as to whether the requirements of Rule 1.11(c), with respect to the Attorney General, and Rule 1.7(b), with respect to the Attorney General and each lawyer participating in the Investigation, have been and can continue to be satisfied throughout the course of the Investigation.
Footnotes
1.These facts are reflected in the official minutes of the relevant Board meetings, copies of which were attached to the ethics request forwarded to us. The Board minutes state that the Attorney General resigned “so as to avoid any conflict with her position with the State of Utah.”
2.In addition to the Investigation, the IOC, USOC and Bid Committee undertook internal investigations, and the federal governmental launched various congressional and administrative investigations.
3.Utah Ethics Advisory Op. 142, 1994 WL 579850 (Utah St. Bar). See also Utah Ethics Advisory Op. 95-07 at 2, 1995 WL 581870 (Utah St. Bar); Annotated Model Rules of Professional Conduct, Rule 1.11 cmt. 2 (A.B.A. 3d ed. 1996).
4.Of course, all lawyers in the Office having direct supervisory authority over other lawyers in the Office must make reasonable efforts to ensure that the lawyers conform to the Rules. Utah Rules of Professional Conduct 5.1(b) cmt. 1 (1998); Utah Ethics Advisory Op. 98-06 at 8, 1998 WL 779174 (Utah St. Bar).
5.See Rule 1.11(c).
6. The information before us, however, is limited, and our review does not necessarily end the fact-specific inquiry that must be undertaken by the lawyer in question.
7.For purposes of Rule 1.11, the term “matter” means a particular “judicial or other proceeding . . . involving a specific party or parties.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975); see also Poly Software Int’l. v. Yu Su, 880 F. Supp. 1487, 1492 (D. Utah 1995).
8.Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.11:401 at 364 (2d ed. Supp. 1998). See Utah Ethics Advisory Op. 142, 1994 WL 579850 (Utah St. Bar); see also, Utah Ethics Advisory Op. 98-06, 1998 WL 779174 (Utah St. Bar).
9.”A client may consent to representation notwithstanding a conflict. However, with respect to . . . material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to representation under the circumstances, the lawyer involved cannot properly [seek consent or provide representation].” Utah Rules of Professional Conduct 1.7 cmt. 2 (1998). The question of what constitutes “client consent” under Rule 1.7(b)(2) with respect to entities represented by the Office of Attorney General is a matter of substantive law beyond our jurisdiction.
10.Hazard, supra note 8, §1.7:301 at 249 (2d ed. Supp. 1998).
11.”The rationale behind the general rule on adverse personal interests is simple: when the interests of a lawyer and a client cross, loyalties are confused, and the lawyer’s effectiveness is diminished.” ABA/BNA Lawyer’s Manual on Professional Conduct, available in Westlaw, at LMPC 51:401. See e.g., S.C. Ethics Advisory Op. 93-38, 1994 WL 928279 (S.C. Bar) (professor who also serves as legal counsel to the institution where the professor teaches must take care to avoid involvement in any policy-making or other situation in which the lawyer’s interest as a faculty member might interfere with his judgment as the institution’s lawyer).
12.Utah Rules of Professional Conduct 1.7 cmt. 1.
13.Hazard, supra note 8, §1.7:301 at 249.
14.Utah Ethics Advisory Op. 98-13 at 3, 1998 WL 863904 (Utah St. Bar); Utah Ethics Advisory Op. 98-11 at 507, 1998 WL 779176 (Utah St. Bar); Utah Ethics Advisory Op. 98-10 at 5, 1998 WL 716634 (Utah St. Bar).
15.In contrast to Rule 1.7(a), which suggests that, in the absence of client consent, a proposed representation is forbidden whenever representation of one client would be directly adverse to another client, Rule 1.7(b) establishes a more flexible approach to conflict analysis. “Rule 1.7(b) . . . speaks to material limitations on the representation, suggesting that merely marginal limitations on the representation do not bar a lawyer’s participation, if the other part of Rule 1.7(b) can be satisfied. Therefore, only “material” limitations trigger operation of the bar. . . .” Hazard, supra note 8, §1.7:301, at 251.
16.Utah Rules of Professional Conduct 1.7 cmt. 2 (1998).
17.Although an attorney may have initially concluded that an existing conflict would not adversely affect the representation, the attorney must continually evaluate the nature and extent of any limitations on the representation. If at any time during the representation an objective, reasonable attorney would conclude that the representation is adversely affected by competing interests, the representation must be terminated. Hazard, supra note 8, §1.7:301 at 250. See also Kan. Ethics Advisory Op. 95-11 (Kan. Bar Assoc. Oct. 17, 1995).
18.A material conflict of interest of the type prohibited by Rule 1.7(b) may arise when a lawyer’s professional interest governs the quality or results of the representation. For example, when a lawyer tailors the representation to protect the lawyer’s own professional interests, rather than a client’s legal interests, an impermissible conflict of interest arises. See, e.g., Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985) (“[w]here a lawyer has a professional incentive to comply with a trial judge’s wishes, such as ensuring that he receives further court-appointed cases from the judge, divided loyalties are created, and these too can either mandate disqualification or lead to a post-conviction finding of ineffective assistance of counsel”).

Ethics Advisory Opinion No. 98-09

(Approved October 30, 1998)
Issues:
Is the Office of the Guardian ad Litem sufficiently similar to the Attorney General’s Office to render it a “government agency” within the meaning of the Utah Rules of Professional Conduct, and if so, does Rule 1.10 concerning imputed disqualifications, apply to the Office of the Guardian ad Litem? Does Rule 1.11, “Successive Government and Private Employment,” apply to the Office of the Guardian ad Litem?

Opinion: Both rules apply to the Office of the Guardian ad Litem. For purposes of Rule 1.10 the Office of the Guardian ad Litem is a “firm,” but the Office of the Guardian ad Litem’s government sponsorship and statutory duties also make that office a “government agency” for Rule 1.11 application. Under the Rules, the terms “firm” and “government agency” are not mutually exclusive and, in certain cases as with the Office of Guardian ad Litem both terms apply. Application of Rule 1.10 and Rule 1.11 serves to maintain confidentiality without unduly hampering the Office of the Guardian ad Litem from performing its duty to protect the best interests of children through hiring qualified attorneys.
Analysis: In response to an inquiry from the Office of the Guardian ad Litem, the Ethics Advisory Opinion Committee previously decided that that office is a “firm” for purposes of imputed disqualifications under Rule 1.10.1The Office of the Guardian ad Litem has submitted another request asking the Committee to reconsider the conclusion of Opinion 95-08 and to find that Rule 1.11 is the appropriate rule to apply to that office instead of Rule 1.10. As a request for reconsideration of a prior opinion, this request was not timely filed under our rules.2Nevertheless, because the request also raises a somewhat new issue involving Rule 1.11, we will grant a waiver of the 30-day requirement of Rule V(e)(1) and treat this as a late-filed request for reconsideration under our Rules of Procedure.
In Opinion 95-08, we found that the opportunity to discuss cases with other Guardian ad Litem attorneys, access to common files and common supervision required the Office of the Guardian ad Litem to be considered as a firm for Rule 1.10 purposes. It is, accordingly, subject to the application of rules dealing with conflicts, including Rule 1.7 and its companion rule, Rule 1.10.
For these purposes, the Office of the Guardian ad Litem is not a government agency similar to the Attorney General’s Office. First, the Utah Constitution broadly mandates that the Attorney General shall represent all the State officers, whose departments sometimes have conflicting interests, as well as undertake any other duties provided by law.3The Office of the Guardian ad Litem’s statutory mandate is narrowly defined and limited to representing minors before the court.4
Second, the Attorney General does not always represent specific clients, while the Office of the Guardian ad Litem’s statutory purpose is to represent the best interests of specific individual clients. For the purposes of determining whether an organization is a “firm” within the meaning of Rule 1.10, the identification of the structure and client is far more important than is the source of funding. Despite the fact that the government pays for the Office of the Guardian ad Litem, the office can still be a “firm” for conflicts purpose. For example, the government may hire a law firm to represent poor people in their personal law suits. This may be the only thing that the law firm does, and the government’s funding may be the only source of income. Nevertheless, the law firm would still be a “firm” within the meaning of Rule 1.10.
For these reasons, the Office of the Guardian ad Litem is different from the Attorney General’s Office, and we reaffirm our decision in Opinion 95-08 that the Guardian ad Litem is subject to full application of Rule 1.10.
We next turn to Rule 1.11, which deals with the ethical obligations of lawyers who move between government positions and private practice. In considering the applicability of Rule 1.11 to the Office of Guardian ad Litem, we note that Rule 1.10 and 1.11 are not mutually exclusive. The Guardian ad Litem’s request makes the foundational assumption that only one of these rules should apply to it. We do not reach this conclusion. For the reasons detailed in Opinion 95-08 and outlined above, the Office has firm-like characteristics for purposes of Rule 1.10. Yet, there are similarities between the Office of the Guardian ad Litem and the Attorney General’s Office. Both offices’ attorneys operate without some of the personal economic motivations of private-firm attorneys, as the attorneys receive a salary and not an hourly rate or a contingency fee.5The attorneys also serve the public interest, find the best solutions possible rather than serve only a client’s desires, and are employees of the State for the purposes of indemnification.6Thus, the Office of the Guardian ad Litem does share qualities with the Attorney General’s Office that allow for Rule 1.11 application.
As a government agency for Rule 1.11 application, the Guardian ad Litem can perform its statutory duties by hiring qualified attorneys while maintaining high ethical standards. Removing Rule 1.11 as a barrier for the Office of the Guardian ad Litem to hire qualified attorneys does not relax the individual lawyer’s responsibilities under Rules 1.7, 1.8, 1.9, and 1.10. The Office of the Guardian ad Litem can employ procedures to screen conflicting lawyers from compromising client confidences.
An effective screen needs to be in place before the potential for improper disclosure exists7and will contain the following types of elements: (1) a prohibition against the disqualified attorney from any participation, discussion, or information regarding the conflicting matter, (2) a restriction on access to files concerning the matter as well as on access to the disqualified attorney’s files and, (3) a memorandum circulated throughout the firm concerning the conflict of interest.8
Conclusion: Utah Rules of Professional Conduct 1.10 and 1.11 both apply to the Office of Guardian ad Litem: The office is a “firm” for purposes of Rule 1.10; and it is a “government agency” for purposes of Rule 1.11.
Footnotes
1.Utah Ethics Advisory Op. No. 95-08, at 10, 1996 WL 227375 (Utah State Bar).
2.Within 30 days of receipt of a response from the Committee under §§ V(b)(2) or V(b)(3), the recipient may seek reconsideration of Committee action by submitting a written request, outlining the factual, legal or policy considerations on which the request for relief is based.
Utah Ethics Advisory Op. Com. R. Proc. § V(e)(1
3.Utah Const., art. VII, § 16. See also Utah Ethics Advisory Op. No. 142, at 2, 1994 WL 579850 (Utah State Bar).
4.(1) The court may appoint an attorney guardian ad litem to represent the best interests of a minor involved in any case before the court . . . ; (2) An attorney guardian ad litem shall represent the best interest of each minor who may become subject of a petition alleging abuse, neglect, or dependency, from the date the minor is removed from his home by the Division of Child and Family Services . . . .
Utah Code Ann. § 78-3a-912 (Supp. 1997).
5.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342, at 119-20 (the channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent disciplinary rules). See also State v. Fitzpatrick, 464 So. 2d 1185 (Fl. Sup. Ct. 1985) (the lack of economic motivations for the attorneys lessens the temptation to share confidences).
6.Utah Code Ann. § 78-3a-912 (7) (Supp. 1997) (“An attorney guardian ad litem appointed under this section, when serving in the scope of his duties as guardian ad litem is considered an employee of the state for purposes of indemnification under Title 63, Chapter 30, Governmental Immunity Act.”); Utah Code Ann. § 63-30-10 (Supp. 1997) (“[i]mmunity from suit for all government entities is waived”). In Utah Code Ann. § 63-30-2 (Supp. 1997), a government entity is defined as a political subdivision. The Attorney General’s Office is a political subdivision.
7.Hunter Douglas, Inc. v. Home Fashions, Inc., 811 F. Supp. 566 (D. Colo. 1992) (screen in place before the disqualified attorney joined the firm).
8.See id.; Scheissle v. Stephens, 717 F.2d 417 (7th)

Ethics Advisory Opinion No. 97-08

(Approved July 2, 1997)
Issue:
May an attorney, formerly employed by a government agency, represent a private client in challenging: (i) the validity or enforceability of statutes, rules, ordinances or procedures that the attorney participated in drafting; or (ii) specific contracts or easements that the attorney negotiated, drafted or reviewed for approval on behalf of the government agency?

Opinion: (i) As a general rule, a former government agency is not prohibited from representing a private client in matters that involve the interpretation or application of laws, rules or ordinances directly pertaining to the attorney’s employment with a government agency. (ii) The attorney may not, however, represent such a client where the representation involves the same lawsuit, the same issue of fact involving the same parties and the same situation, or conduct on which the attorney participated personally and substantially on behalf of the government agency. In any event, an attorney may not undertake representation adverse to any former client where the matter is substantially factually related to the matter for which the former client retained the attorney’s services.
Analysis: During his tenure as an Assistant City Attorney, a lawyer was involved in drafting a number of ordinances and in approving “as to form” a number of contracts and other documents. Among other tasks, the attorney undertook to draft an interim zoning ordinance and a final zoning ordinance adopted by the City. The attorney’s duties also included negotiating and recommending approval of a particular easement to place a public hiking trail at a specific location.
Some time after leaving government employment, the attorney was approached by one or more prospective clients seeking to challenge the zoning ordinance and challenging the location of the trail. The City contacted the attorney and objected to his involvement on behalf of the private clients in these matters. The attorney has asked for our opinion, voicing concerns that much of his prospective client base depends on his ability to challenge ordinances and similar rules established by the City during his employment there.
ANALYSIS
Utah Rules of Professional Conduct 1.11(a) prohibits a former government attorney, unless otherwise authorized by law, from representing a private client “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.” As the facts have been presented here, there appears to be no argument that the attorney was personally and substantially involves as a government attorney in the negotiation, drafting and approval process with respect to the zoning ordinances and the easement. The analysis therefore turns on whether the proposed representation would constitute the same “matter” as the attorney’s prior government experience for purposes of Rule 1.11(a).
Under Rule 11(d), the definition of “matter” expressly includes: “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.”
A government attorney who has been employed to assist in the drafting of ordinances or rules is not prohibited from subsequently challenging the validity or enforceability of such rules on behalf of a private client where the subsequent representation does not involve the same proceeding, parties or facts. There is no suggestion, either in the express definition or under any relevant interpretation of Rule 11 that a prohibited “matter” would extend so far as to encompass instances involving the mere interpretation of rules, ordinances, laws or procedures, the drafting or enactment of which the former government attorney might have assisted with.
The validity or enforcement of generally applicable rules and ordinances does not, in and of itself, constitute a prohibited “matter” under Rule 1.11(a) unless the attorney were also involved in some specific proceeding or controversy involving the same parties or specific facts pertaining to the proposed private representation.
At least one other opinion of this Committee supports this interpretation of the Rules—Opinion No. 77 (Jan. 20, 1986). Interpreting DR 9-101(B) of the Code of Professional Responsibility, the predecessor to Rule 1.11(a), this Committee analyzed the prohibition against successive government and private employment in that disciplinary rule. That opinion established that “the same lawsuit or litigation is the same matter” for purposes of the prohibition, but that “drafting government or agency procedures is not.”
In interpreting the predecessor to Rule 1.11(a), the Committee generally recognized that important policy considerations support a rule that does not “broadly limit the lawyer’s employment after the leaves government service.” A proscription against subsequent representation on legal issues pertaining solely to the validity and interpretation of city rules and ordinances would severely hamper the post-government employment options of former city attorneys. Such a prohibition could also limit the prospective client’s selection of counsel, particularly in cities that are more remote or where legal services are less readily available.
Rule 1.11 is intended to prevent a lawyer from exploiting public office for the advantage of a private client, presumably some prospective client or group of clients. 1 The Rule protects against an attorney “switching sides,” as well as the possible disclosure of confidential government information. 2 However, the Rule’s purpose is not ordinarily implicated where the private representation involves only a challenge to ordinances or rules of general application; such challenges are not so much the domain of any particular attorney, but are commonly pursued by lawyers of varied backgrounds and experience. On the other hand, where the subsequent representation involves something more than a facial challenge to an ordinance, but will implicate the former government attorney in a specific matter between the same parties or in the same proceeding as the prior government representation, the purpose of the rule is squarely addressed.
The prohibition of Rule 1.11(a) arises in the context of proceedings or requests for rulings that involve the specific facts, conduct or parties at issue in the attorney’s former government representation. In Opinion No. 77, for example, we expressed our view that a former city attorney was prohibited from representing a private client in arguing the specific intent and interpretation of a city contract that the attorney had himself negotiated and drafted on behalf of the city. As we explained:
In this case, [the attorney] in effect switched sides by representing [the client] against the city in a matter he was heavily involved in as city attorney. [He] used his knowledge from his previous government job to benefit a new and adverse client. . . . By drafting the contract for the city and later using the contract for a private client, [the attorney] used his substantial responsibility as a government employee to the benefit of that private client. 3
We view the potential representation with respect to the specific easement and its location very much in the same light as the contract negotiation/interpretation at issue in Opinion No. 77. Under the facts before us, the former Assistant City Attorney would be precluded under Rule 1.11(a) from representing a private client in attacking the placement of the public-trail easement that he himself had reviewed, negotiated and approved on behalf of the City. The issues involved in locating the public-trail easement constitute the same specific facts as the attorney’s previous engagement on behalf of the City. In effect, having advocated for the city in placing the trail, the attorney now would be “switching sides” in challenging the location on public policy or other grounds.
The standard in determining what constitutes the same “matter” for purposes of Rule 1.11(a) was enunciated by the Utah federal district court in Poly Software Int’l, Inc. v Su: “The same ‘matter’ is not involved [when] . . . there is lacking the discrete, identifiable transaction of conduct involving a particular situation and specific parties.” 4 In evaluating the issue of the public-trail easement, we are inclined to believe that the factual nexus between the prior engagement and the proposed private representation falls adequately within the confines of the “identifiable transaction” standard announced by the district court, and it is quite similar to the prohibited representation addressed in Opinion No. 77.
The negotiation of the specific easement in question is essentially the equivalent of the contract negotiation and drafting that the former city attorney had undertaken on behalf of the city in Opinion No. 77. By virtue of the attorney’s individual insight into the City’s thought process, strategies and the possible alternatives considered by the City in locating the easement, the attorney is likely to have gained some information or otherwise participated in a very individual respect to such a degree that his prospective private representation against the City with respect to the easement would be improper under Rule 1.11(a). By undertaking the proposed representation, the attorney would have essentially “switched sides” on the specific factual issues pertaining to the policy considerations for locating the easement where the city had successfully sited it. It is precisely this type of successive government and private involvement that Rule 1.11(a) is intended to prohibit.
Having decided that the proposed representation in challenging the specific easement would violate Rule 1.11(a), we need not discuss in detail the application of other rules. We do, nevertheless, note that Rule 1.9 prohibits any attorney, including former government lawyers, from representing “another person in the same or substantially factually related matter” adverse to the interests of a former client. As the Poly Software court explained, the factual “nexus” required to invoke the prohibition of Rule 1.9 may exist even where the matters are not so closely related as to give rise to a Rule 1.11 prohibition:
A “substantially factually related matter,” on the other hand, is not defined by an particular, discrete legal proceeding. By its terms, it includes aspects of past controversies which are similar, but not necessarily identical, to those encompassed within a present dispute. So long as there are substantial factual threads connecting the two matters, the criteria of Rule 1.9 are met. 5
Given our discussion of the easement question above and under the more inclusive standard of Rule 1.9, the former Assistant City Attorney would be prohibited, in any event, from undertaking representation of the prospective client with respect to the specific easement in question.
Footnotes
1 Poly Software Int’l, Inc. v. Su, 880 F. Supp. 1487 , 1493 (D. Utah 1995).
2 See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975); Utah Ethics Advisory Op. No. 77 (1986).
3 Utah Op. No. 77.
4 880 F. Supp. At 1493.
5 Id. at 1492.