Opinion 2054

The inquirer is a lawyer who since 1996 has served in various elected positions for a small municipality. Most recently, the inquirer served as Mayor from 1999 to December 2003 and was involved in managing all affairs of the municipality, including the municipality’s legal affairs. The inquirer became a member of the Washington State Bar Association in June of 2000, but neither served nor was employed as the lawyer for the municipality. The inquirer no longer is employed by the municipality and seeks guidance regarding limitations imposed by the Rules of Professional Conduct on his ability to represent potential clients in matters involving the municipality.

The inquirer’s ability to represent future clients in matters related to his former employment with the municipality is governed by RPC 1.11. Generally speaking, a lawyer is disqualified from representing a future client under RPC 1.11(a) (subject to consent from the former government employer) if the subject of the representation involves a matter in which the lawyer “participated personally and substantially” while employed for the governmental body. The matter need not have been an instance where the lawyer was providing legal counsel to the governmental body and can include other instances where the lawyer “participated personally and substantially.” For purposes of determining whether the lawyer “participated personally and substantially” in the matter, the inquiry should be whether the lawyer participated in some material respect with the facts, circumstances and/or the decision-making process of the matter that is the subject of the representation sought by the prospective client.

In addition, under RPC 1.11(b), a lawyer may not represent a prospective client in a matter if the lawyer obtained “confidential government information” about the person whose interests are adverse to the prospective client where such information can be used to the “material disadvantage” of the adverse person. For purposes of evaluating whether the information is “confidential government information”, the inquirer is directed to review the definition of “confidential government information” contained in RPC 1.11(e). Generally, however, whether a party has obtained confidential government information can be evaluated by inquiring whether the information about a person whose interests are adverse to the prospective client is information that otherwise would not be discoverable, disclosed or made available to the general public while the lawyer was employed by the governmental agency. However, given the nature of the inquirer’s positions with the municipality and the short period since this service, the committee urges the inquirer to thoroughly scrutinize RPC 1.11 to avoid not only actual conflict but also an appearance of impropriety.

Regarding the specific inquiries presented by the inquiring attorney, there is insufficient information to evaluate whether (1) the inquirer “participated personally and substantially” in any aspect of the prospective client’s former employment with the governmental body (though because the inquirer was the prospective client’s former supervisor it appears likely that such is the case) or (2) whether the inquirer obtained “confidential government information” about the current elected official that could be used by the prospective client to the “material disadvantage” of the elected official. Accordingly, an informal opinion regarding these two specific inquiries is not being provided at this time.

Regarding the inquiry about whether members of the Legislature (or other elected officials) who are attorneys are subject to the Rules of Professional Conduct, this Committee provides opinions only about the specific conduct of the inquiring lawyer.