Advisory Opinion: 2128

Year Issued: 2006

RPC(s): RPC 1.7(a)(2), 1.11

Subject: May a lawyer who works for one state agency represent employees of another state agency in civil actions against the state?

FACTS

The inquirer describes himself as a lawyer employed full-time by an agency of the State of Washington. In his capacity as a state employee, he handles various assignments such as drafting contracts, reviewing agency policies and representing the agency in workers compensation matters before the Board of Industrial Insurance Appeals.

The inquirer intends to open a private law practice, which will eventually expand to a full-time practice. He intends to focus on “employment discrimination, wrongful termination, public employee First Amendment claims, and workers compensation claims for private employees and public employees of state agencies.” He assumes that he would be prohibited from representing employees of his own state agency and is inquiring about prohibitions on the representation of state employees from other agencies.

DISCUSSION

The inquiry is premised on certain assumptions that may be unfounded as a matter of law. While the RPC Committee does not opine on legal issues, its response to the inquirer could be misleading to other practitioners if it accepts these assumptions at face value.

First, the inquirer seems to presume that he has an attorney-client relationship with his current state agency. However, he does not describe himself as an assistant attorney general. Thus the Committee assumes, but does not opine, that the inquirer does not have an attorney client relationship with his current employer. The Committee’s response is based on this assumption and leads to the assumption that the inquirer’s responsibilities are governed by RPC 1.7(a)(2) and RPC 1.11.

RPC 1.7 provides that :

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer`s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

RPC 1.7(a)(1) is inapplicable because it addresses concurrent conflicts between two clients.

RPC 1.7(a)(2) would bar the representation of the private client if such representation would be materially limited by the government lawyer’s own interest in maintaining his employment with his current state agency employer or the interests of the third party state agency. The Committee does not have sufficient facts to assess whether the inquirer’s representation of a private party would be limited by his duty of loyalty and confidentiality to the governmental entity. Nor does the Committee have sufficient facts to determine the extent to which the inquirer is permitted to engage in outside employment. The Committee directs the inquirer to the State Executive Ethics Act, especially RCW 42.52.020-120 and to the state agency’s policies.

The private client may consent to the representation notwithstanding a concurrent conflict under the circumstances set forth in RPC 1.7(b). On the facts presented by the inquirer, the Committee can not opine on whether the proposed representation would be allowed under the exceptions set forth in RPC 1.7(b).

RPC 1.11(d) also provides guidance to the inquirer. RPC 1.11 prohibits representation of a private client in a matter in which the lawyer participated personally and substantially as a government employee, absent the written consent of the government entity. State ethics laws and internal agency policies may restrict the extent to which such consent can be given. Comment 1 to RPC 1.11. RPC 1.11 also prohibits conduct by a governmental employee that would violate RPC 1.7. Finally, RPC 1.11(c) prohibits a lawyer from using confidential information obtained about a person pursuant to the government’s authority from using the information to the disadvantage of that person.


CONCLUSION

The RPCs restrict the private practice of law by members of the bar who also are government employees in significant ways. The inquirer should seek additional guidance from his employer or the Executive Ethics Board, in accordance with the discussion above.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.