Rule 1.11. Special conflicts of interest for former and current government employees.

(a) Except as law may otherwise expressly permit, a licensed paralegal practitioner who has formerly served as a public officer or employee of the government:

(a)(1) is subject to Rule 1.9(c); and

(a)(2) shall not otherwise represent a client in connection with a matter in which the licensed paralegal practitioner participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consentconfirmed in writing, to the representation.

(b) When a licensed paralegal practitioner is disqualified from representation under paragraph (a), no attorney or licensed paralegal practitioner in a firm with which that licensed paralegal practitioner is associated may knowingly undertake or continue representation in such a matter unless:

(b)(1) the disqualified licensed paralegal practitioner is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;  and

(b)(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.

(c) Except as law may otherwise expressly permit, a licensed paralegal practitioner having information that the licensed paralegal practitioner knows is confidential government information about a person acquired when the licensed paralegal practitioner was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.  As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which at the time the 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.  A firm with which that licensed paralegal practitioner is associated may undertake or continue representation in the matter only if the disqualified licensed paralegal practitioner is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a licensed paralegal practitioner 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 licensed paralegal practitioner participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consentconfirmed in writing;  or

(d)(2)(ii) negotiate for private employment with any person who is involved as a party or as  counsel for a party in a matter in which the licensed paralegal practitioner is participating personally and substantially.

(e) As used in this Rule, the term “matter” includes:

(e)(1) 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

(e)(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

 

Comment

[1] A licensed paralegal practitioner, who has served or is currently serving as a public officer or employee is personally subject to the licensed paralegal Practitioner Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7. In addition, such a licensed paralegal practitioner may be subject to statutes and government regulations regarding conflicts of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 1.0(f) for the definition of informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual licensed paralegal practitioner who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government licensed paralegal practitioners that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a licensed paralegal practitioner 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 licensed paralegal practitioners.

[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a licensed paralegal practitioner is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a licensed paralegal practitioner from exploiting public office for the advantage of another client. For example, a licensed paralegal practitioner who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the licensed paralegal practitioner has left government service, except when authorized to do so by the government agency under paragraph (a). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A licensed paralegal practitioner should not be in a position where benefit to the other client might affect performance of the licensed paralegal practitioner's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the licensed paralegal practitioner's government service. On the other hand, the rules governing licensed paralegal practitioners presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate interest in attracting qualified licensed paralegal practitioners as well as in maintaining high ethical standards. Thus a former government licensed paralegal practitioner is disqualified only from particular matters in which the licensed paralegal practitioner participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the licensed paralegal practitioner worked, serves a similar function.

[5] When a licensed paralegal practitioner has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a licensed paralegal practitioner is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the licensed paralegal practitioner as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules.

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(m) (requirements for screening procedures). These paragraphs do not prohibit a licensed paralegal practitioner from receiving a salary or partnership share established by prior independent agreement, but that licensed paralegal practitioner may not receive compensation directly relating to the fee in the matter in which the licensed paralegal practitioner is disqualified.

[7] Notice, including a description of the screened licensed paralegal practitioner's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[8] Paragraph (c) operates only when the licensed paralegal practitioner in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the licensed paralegal practitioner.

[9] Reserved.

[10] For purposes of paragraph (e) of this Rule, a "matter" may continue in another form. In determining whether two particular matters are the same, the licensed paralegal practitioner should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

 

Effective November 1, 2018