Opinion 1661

The Committee discussed your inquiry regarding conflicts presented by your previous representation of [two employees of a state agency, and your subsequent appointment as head of that agency.] The head of the agency is typically responsible for making final administrative recommendations of the [two review panels before which you represented the employees.]
The Committee concluded that if the courts ultimately rule that the [head of the agency] cannot delegate the authority to make the decision in either of these cases, you would not be in violation of RPC 1.11 by making the final decisions. The language of RPC 1.11(c) exempts application of the rule to a governmental officer if the external law would not allow delegation of authority. Further, there is no requirement for a remittal of disqualification if the courts rule that you cannot delegate your authority as Chief of the Washington State Patrol. Other law relieves you from your obligations of RPC 1.11 whether or not a remittal of disqualification is filed.
If the courts rule that the law allows you to delegate these decisions, then the existing RPC 1.11(c) screening which you are using with regard to these cases satisfies your ethical obligations under RPC 1.11. If you are uncertain what you should do, you should do what the court tells you. As long as you are complying with a court order, you will be in compliance with the Rules of Professional Conduct.
You may violate RPC 1.11(c) if you make the final decision when there has been no resolution of the external law regarding delegation of authority. The issue of consent is irrelevant under the rule since private parties cannot consent to a conflict of interest arising from a former private representation by a now government official. There is no reciprocal consent equivalent to the consent which government can give when a former government officer now wishes to represent a private party on a matter in which the former government officer had participated. See 1.11(a). In the absence of clarification of the delegability under RPC 1.11(c)(1), the rule does apply until it is clear it is a non-delegable decision. The current screening and delegation would of course satisfy RPC 1.11.

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.