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Rule 1.11. Special conflicts of interest for former andcurrent government employees.

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

(a)(1) issubject to Rule 1.9(c); and

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

(b) When a licensed paralegalpractitioner is disqualified from representation under paragraph (a), noattorney or licensed paralegal practitioner in a firm with which that licensed paralegal practitioner isassociated may knowingly undertake or continue representation in such a matter unless:

(b)(1) thedisqualified 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 governmentagency to enable it to ascertain compliance with the provisions of this Rule.

(c) Except as law may otherwiseexpressly permit, a licensed paralegal practitioner having information that thelicensed paralegal practitioner knows is confidential government information about a personacquired when the licensed paralegal practitioner was a public officer oremployee may not represent a private client whose interests are adverse to thatperson in a matter in which the information could be used to the materialdisadvantage of that person.  As used in this Rule, the term ?confidentialgovernment information? means information that has been obtained undergovernmental authority and which at the time the rule is applied, thegovernment is prohibited by law from disclosing to the public or has a legalprivilege not to disclose and which is not otherwise available to thepublic.  A firm with which that licensed paralegal practitioner isassociated may undertake or continue representation in the matter only if thedisqualified licensed paralegal practitioner is screened from any participation in the matter and isapportioned no part of the fee therefrom.

(d) Except as law may otherwiseexpressly permit, a licensed paralegal practitioner serving as a public officeror employee:

(d)(1) issubject to Rules 1.7 and 1.9;  and

(d)(2) shallnot:

(d)(2)(i) participate in a matter in which the licensed paralegal practitionerparticipated personally and substantially while in private practice or nongovernmentalemployment, unless the appropriate government agency gives its informed consentconfirmed in writing;  or

(d)(2)(ii) negotiatefor 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 isparticipating personally and substantially.

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

(e)(1) any judicial or otherproceeding, application, request for a ruling or other determination, contract,claim, controversy, investigation, charge, accusation, arrest or otherparticular matter involving a specific party or parties; and

(e)(2) anyother matter covered by the conflict of interest rules of the appropriategovernment agency.

 

Comment

[1] A licensed paralegal practitioner, who hasserved or is currently serving as a public officer or employee is personallysubject to the licensed paralegal Practitioner Rules of Professional Conduct,including the prohibition against concurrent conflicts of interest stated inRule 1.7. In addition, such a licensed paralegal practitioner may be subject tostatutes and government regulations regarding conflicts of interest. Suchstatutes and regulations may circumscribe the extent to which the governmentagency may give consent under this Rule. See Rule 1.0(f) for the definition ofinformed consent.

[2] Paragraphs (a)(1),(a)(2) and (d)(1) restate the obligations of an individual licensed paralegalpractitioner who has served or is currently serving as an officer or employeeof the government toward a former government or private client. Rule 1.10 isnot applicable to the conflicts of interest addressed by this Rule. Rather,paragraph (b) sets forth a special imputation rule for former government licensedparalegal practitioners that provides for screening and notice. Because of thespecial problems raised by imputation within a government agency, paragraph (d)does not impute the conflicts of a licensed paralegal practitioner currentlyserving as an officer or employee of the government to other associatedgovernment officers or employees, although ordinarily it will be prudent toscreen such licensed paralegal practitioners.

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

[4] This Rule represents a balancing ofinterests. On the one hand, where the successive clients are a governmentagency and another client, public or private, the risk existsthat power or discretion vested in that agency might be used for the specialbenefit of the other client. A licensed paralegal practitioner should not be ina position where benefit to the other client might affect performance of thelicensed paralegal practitioner's professional functions on behalf of thegovernment. Also, unfair advantage could accrue to the other client by reasonof access to confidential government information about the client's adversaryobtainable only through the licensed paralegal practitioner's governmentservice. On the other hand, the rules governing licensed paralegalpractitioners presently or formerly employed by a government agency should notbe so restrictive as to inhibit transfer of employment to and from thegovernment. The government has a legitimate interest in attracting qualifiedlicensed paralegal practitioners as well as in maintaining high ethicalstandards. Thus a former government licensed paralegal practitioner isdisqualified only from particular matters in which the licensed paralegalpractitioner participated personally and substantially. The provisions forscreening and waiver in paragraph (b) are necessary to prevent the disqualificationrule from imposing too severe a deterrent against entering public service. Thelimitation of disqualification in paragraphs (a)(2) and (d)(2) to mattersinvolving a specific party or parties, rather than extending disqualificationto all substantive issues on which the licensed paralegal practitioner worked,serves a similar function.

[5] When a licensed paralegal practitioner hasbeen employed by one government agency and then moves to a second governmentagency, it may be appropriate to treat that second agency as another client forpurposes of this Rule, as when a licensed paralegal practitioner is employed bya city and subsequently is employed by a federal agency. However, because theconflict of interest is governed by paragraph (d), the latter agency is notrequired to screen the licensed paralegal practitioner as paragraph (b)requires a law firm to do. The question of whether two government agenciesshould be regarded as the same or different clients for conflict of interestpurposes is beyond the scope of these Rules.

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

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

[8] Paragraph (c) operates only when the licensedparalegal practitioner in question has knowledge of the information, whichmeans actual knowledge; it does not operate with respect to information thatmerely 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 twoparticular matters are the same, the licensed paralegal practitioner shouldconsider the extent to which the matters involve the same basic facts, the sameor related parties, and the time elapsed.

 

Effective November 1, 2018