March 3, 1982
An attorney employed by a state agency as an adjudicator may negotiate for employment with law firms that practice before the agency. The attorney should disqualify himself from future matters where a law firm with whom employment negotiations being conducted is a party or appears on behalf of a party. The attorney should not initiate negotiations for employment with law firms representing parties in pending matters in which the official is currently directly and substantially involved.
References: MCPR DR 5-101, DR 9-101(A); CI-192; ABA Op 49, ABA Op 342; Woods v Covington Bank, 537 F2d 804 (CA5 1976).
A lawyer currently employed full-time as an administrative hearing officer conducts prehearing conferences, sits as presiding officer during hearings, and researches and drafts proposed decisions for approval and adoption by the appointed members of the state agency. Neither the state department nor the state agency are parties to the contested cases to which the lawyer is assigned.
The lawyer asks whether it is proper to submit, or to have a placement service submit, resumes to or seek employment interviews with law firms currently representing party litigants before the state agency which the lawyer serves, and whether the lawyer should disqualify himself from a case presented by a firm so contacted.
MCPR DR 9-101(A) states that a lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity. ABA Model Code of Professional Responsibility EC 9-3 states:
"After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists."
ABA Op. 49 provides:
"A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts."
See also, CI-192 prohibiting a partner, shareholder or employee of a law firm from representing a client before an administrative board on which a partner, shareholder or employee of the same firm sits.
Since the lawyer has not yet commenced contact with the private firms, and consequently has not been retained in to represent clients before the current employer, no ethical dilemma has arisen under MCPR DR 9-101(A) and MCPR DR 5-101, conflicts of interest. Consequently we express no opinion on those circumstances.
However, the question remains as to the existence of any potential ethical violation should the lawyer apply for employment to any firm which currently has or which may have a client before the lawyer during the remainder of employment with the state agency. ABA Op 342 states:
"Interviews revealed a substantial body of opinion that government employees who anticipate leaving their agency some day are put under an inevitable pressure to impress favorably private concerns with which they officially deal."
See also Woods v Covington Bank, 537 F2d 804 (CA5 1976).
This "pressure" is most often viewed as creating a potentially improper influence upon the matter being handled by the government attorney as well as eroding public confidence in the judicial and administrative law process. Prevailing ethical standards aim to avoid such "pressure" situations as well as to remove both actual or perceived improprieties and interference with the lawyer's independent judgment for a client.
At the same time the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from government. In this respect, a blanket prohibition against a government attorney making job inquiries while still in government employ would seem unduly harsh and not necessarily in furtherance of legitimate public, private, and ethical interests. See Fletcher, "Conflict of Interest and the Former Government Employee: Rethinking the Revolving Door," 14 Creighton L Rev 707 (1980); Lacovera, "Restricting the Private Practice of Former Government Lawyers," 20 Ariz L. Rev 369 (1978); Morgan, "Appropriate Limits on Participation by a Former Agency Official in Matters Before an Agency," 1980 Duke L. J. 1.
No disciplinary rule or ethical precept would be violated by inquiry to private law firms either directly by the lawyer or indirectly through the use of an employment or placement service. The lawyer must be satisfied that any and all state government policies and public laws regarding the giving of notice to the agency are followed, e.g., 18 USC Sec 208 (Supp III 1979), which requires federal employees to give notice to supervisors of negotiations for private employment.
Proposed ABA Model Rules of Professional Conduct, Rules 1.11 and 1.12 state:
Rule 1.11: "(b) A lawyer serving as a public officer or employee shall not:
". . .
"(2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially . . . ."
Rule 1.12: "A lawyer shall not negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person . . . ."
While recognizing that these provisions have not become the formal word on the issue of the negotiation by government lawyers or adjudicative officers for employment with the private sector, these rules do provide sound guidance. Therefore it would be ethically inappropriate for the lawyer to make either direct or indirect inquiry of law firms party to or representing clients in matters presently before the lawyer and in which the lawyer is substantially involved. Correspondingly, a lawyer should disqualify from any case in which the lawyer has substantial involvement where the matter is presented by a firm so contacted.