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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.11   Rule 1.11 Successive Government and Private Employment

1.11:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 3-310, Cal. GovÕt Code 87401, 87406, Public Resources Code 40411, 25205, Health & Safety Code 40426
¥ Background References: ABA Model Rule 1.11, Other Jurisdictions
¥ Commentary:

1.11:101      Model Rule Comparison

There is no California counterpart to MR 1.11; the matter is governed by case law and by the general principles stated in CRPC 3-310.

1.11:102      Model Code Comparison

There is no California counterpart to DR 9-101(B).

1.11:110      Federal Conflict of Interest Statutes and Regulations

1.11:120      CA Conflict of Interest Statutes and Regulations

GovÕt Code ¤ 87401 prohibits any former state administrative official, after the termination of his or her employment or term of office, from acting for compensation as an attorney for, or otherwise representing, any person (other than the State of California) before any court or state administrative agency or participating in other specified activities if (a) the State of California is a party or has a direct or substantial interest and (b) the proceeding is one in which the former state administrative official participated. In addition, statutory provisions dealing with specific agencies or boards contain restrictions on specified government employees after their departure from government service. See GovÕt Code ¤ 87406.1(b) (former member, officer or employee of governing body of an air pollution control district or air quality management district may not act as an attorney for any other person before the district for one year after leaving office); Pub. Res. Code ¤ 40411(c) (former member of the Integrated Waste Management Board may not act as an attorney or otherwise represent any other person before the Board for a period of twelve months after leaving office); Health & Safety Code ¤ 40426.7(c) (former employee or officer of South Coast Air Quality Management District may not, if involved in making any decision or in any other activity while an employee of the District with respect to a particular person, act as an attorney or otherwise represent that person in an appearance before the district board or hearing board); GovÕt Code ¤ 87406 (prohibiting members of the legislature or other elected state officers and specified designated government employees from acting as an attorney before specified agencies for a specified period). Other statutes prohibit current employees or members of specified agencies from acting as an attorney for such agencies. See, e.g., Pub. Res. Code ¤ 25205(e) (State Energy Resources Conservation and Development Commission). Similarly, Section 5(d) of Article VI of the California Constitution prohibits members of the legislature from acting on behalf of another person before any state government board or agency, although appearances before courts and the WorkersÕ Compensation Appeals Board are permitted.

1.11:130      Definition of "Matter"

There is no direct California authority on this point.

1.11:200   Representation of Another Client by Former Government Lawyer

¥ Primary California References:
¥ Background References: ABA Model Rule 1.11(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 214, Wolfram ¤ 8.10

A California court refused to follow a rigid imputed disqualification rule in the case of a former government employee who had been screened to the satisfaction of the government agency concerned. See Chambers v. Superior Court (3rd Dist.1981) 121 Cal.App.3d 893, 175 Cal.Rptr. 575 (no imputed disqualification of law firm hiring a former government lawyer, who was screened from the matter, had limited responsibilities concerning it while with the government, and acquired little or no confidential information).

1.11:210      No Imputation to Firm if Former Government Lawyer Is Screened

[See 1.11:200 Representation of Another Client by Former Government Lawyer, supra for a discussion of Chambers v. Superior Court].

1.11:300   Use of Confidential Government Information

¥ Primary California References:
¥ Background References: ABA Model Rule 1.11(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 214, Wolfram ¤ 8.10

There is no direct California authority on this point. See MR 1.11(b) and 1.11(e).

1.11:310      Definition of "Confidential Government Information"

1.11:400   Government Lawyer Participation in Matters Related to Prior Representation

¥ Primary California References:
¥ Background References: ABA Model Rule 1.11(c), Other Jurisdictions
¥ Commentary: ALI-LGL ¤ 213, 214, Wolfram ¤ 8.9.4

There is no direct California authority on this point dealing with government lawyers participating in matters which they handled in their prior private practice. There is also no direct California authority with respect to government lawyers negotiating for subsequent private employment. However, there is a parallel in the case of Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr. 768 in which the court found that there was sufficient evidence of conflict of interest when divorce lawyer had commenced discussions with opposing counsel to merge their practices.

1.11:500   Government Lawyer Negotiating for Private Employment

¥ Primary California References:
¥ Background References: ABA Model Rule 1.11(c)(2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤¤ 156, 214, Wolfram ¤ 9.10

[See 1.11:400 Government Lawyer Participation in Matters Related to Prior Representation, supra].