(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.
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.
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.