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Alabama Legal Ethics

1.11 Rule 1.11 Successive Government and Private Employment

1.11:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.11
  • Background References: ABA Model Rule 1.11, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.11:101   Model Rule Comparison

There are no differences between ARPC 1.11 and MRPC 1.11. ARPC 1.11 "prevents a lawyer from exploiting public office for the advantage of a private client." (Comments). The rule addresses the perceived risk that, when a lawyer's successive clients are a government agency and a private client, the private client may benefit in some way from the power entrusted to the public agency. The rule strives to prevent both a government lawyer's professional actions from being effected by the potential disbursement of benefits to a private client and the private client's access to confidential government information through the lawyer.

1.11:102   Model Code Comparison

Inapplicable.

1.11:110   Federal Conflict of Interest Statutes and Regulations

Inapplicable.

1.11:120   Alabama Conflict of Interest Statutes and Regulations

1.11:130   Definition of "Matter"

Matter is defined as 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 the appropriate government agency. In RO-94-14 the General Counsel found that the same "matter" involved more than the same points of law and that other characteristics of two actions such as having the same parties or the same subject matter are necessary before an attorney or his firm may be disqualified for having participated substantially in the same matter prior to moving from the government to the private sector.

1.11:200 Representation of Another Client by Former Government Lawyer

  • Primary Alabama References: AL Rule 1.11(a)
  • Background References: ABA Model Rule 1.11(a), Other Jurisdictions
  • Commentary: ABA/BNA § 91:4001, ALI-LGL § 133, Wolfram § 8.10
  • Alabama Commentary:

1.11:210   No Imputation to Firm if Former Government Lawyer Is Screened

The former government lawyer's firm may still undertake representation in a matter so long as the lawyer himself is screened from participation in the matter and receives no part of the fees generated therefrom. The screening and waiver provisions commonly referred to as the "Chinese Wall" defense are available under the ARPCs only in Rule 1.11 and 1.12. Roberts v. Hutchins, 575 So.2d 1231, 1234 n.3 (Ala. 1990). The rationale behind the screening and waiver provisions is that, while private clients should not be able to take advantage of confidential information privy to present or former government lawyers, the rule should not be restrictive to the point that they inhibit transfer of employment to and from the government. The rule recognizes that the government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards.

1.11:300 Use of Confidential Government Information

  • Primary Alabama References: AL Rule 1.11(b)
  • Background References: ABA Model Rule 1.11(b), Other Jurisdictions
  • Commentary: ABA/BNA § 91:4001, ALI-LGL § 133, Wolfram § 8.10
  • Alabama Commentary:

1.11:310   Definition of "Confidential Government Information"

"Confidential Government Information" is defined as information "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." ARPC Rule 1.11(d).

1.11:400 Government Lawyer Participation in Matters Related to Prior Representation

  • Primary Alabama References: AL Rule 1.11(c)
  • Background References: ABA Model Rule 1.11(c), Other Jurisdictions
  • Commentary: ABA/BNA § 91:4001, ALI-LGL § 132, 133, Wolfram § 8.9.4
  • Alabama Commentary:

ARPC 1.11(a) precludes a former government lawyer, without consent from the government agency, from representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer employee. Additionally, each lawyer in the former government lawyer's new firm is prohibited from representing the private client in the matter in question unless the disqualified former government lawyer is screened from participation in the matter, receives no part of the fee generated by it, and written notice is provided to the agency to allow them to ascertain compliance with ARPC 1.11. This rule does not prevent a former government lawyer from receiving any form of salary or partnership share from his new firm during the pendency of the matter in question - it merely prevents him from receiving any compensation generated by that matter. ARPC 1.11(b) extends the prohibitions of the rule to a former government lawyer with actual knowledge (although it does not apply to information that could be imputed to the lawyer). RO-93-22.

When the lawyer's client is "an agency of one government, that agency should be treated as a private client for purposes of the rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency." ARPC 1.11(b) relies on the reasoning of General Motors Corp. v. City of New York, 501 Fed.2d 639 (2nd Cir. 1974) which prohibits a lawyer from representing one government agency from obtaining confidential government information in a grand jury prosecution and then subsequently going to work for another government agency and using that information as the basis of a civil suit against the target of the grand jury investigation. See RO-93-22 which found that attorneys in the Attorney General's office could bring a civil suit against the defendant after participating in a grand jury investigation concerning the same defendant.

1.11:500 Government Lawyer Negotiating for Private Employment

  • Primary Alabama References: AL Rule 1.11(c)(2)
  • Background References: ABA Model Rule 1.11(c)(2), Other Jurisdictions
  • Commentary: ABA/BNA § 91:4001, ALI-LGL §§ 97, 133, Wolfram § 9.10
  • Alabama Commentary:

A government lawyer may not negotiate for private employment with parties or attorneys of parties in matters in which the government attorney is "personally and substantially" participating. A judicial law clerk, other adjudicative officer or arbitrator is excepted from this prohibition so long as the requirements of Rule 1.12(b) are satisfied.