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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Delaware Legal Ethics

1.11 Rule 1.11 Successive Government and Private Employment

1.11:100 Comparative Analysis of Delaware Rule

1.11:101 Model Rule Comparison

Model Rule 1.11 is titled, “Successive Government and Private Employment,” while DLRPC is designated, “Special conflicts of interest for former and current government officers and employees.” DLRPC 1.11(a) differs from Model Rule 1.11(a). DLRPC 1.11(a) (1) subjects a “lawyer who has formerly served as a public officer or employee of the government” to DLRPC 1.9(c). Under the DLRPC, if the lawyer participated personally and substantially in a matter as a public employee, the government agency may give informed consent to representation, confirmed in writing. Model Rule 1.11(a) merely states that the government agency must “consent after consultation.”

DLRPC 1.11(b)(1)&(2) is the equivalent of Model Rule 1.11(b)(1)&(2). DLRPC 1.11(c) is similar to Model Rule 1.11(b), but DLRPC defines “confidential government information” in 1.11(c), while the Model Rule defines “confidential government information” in 1.11(e). DLRPC 1.11(d) is the counterpart of Model Rule 1.11(c), however, DLRPC 1.11(c)(1) states that “a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9… .” The Model Rule does not include the word “currently,” nor does it state that lawyers are subject to Rules 1.7 and 1.9.

Furthermore, DLRPC 1.11(2)(i) permits a lawyer who is currently a public officer to participate in a matter in which the lawyer participated personally and substantially while in private/nongovernmental employment if the “appropriate government agency gives its informed consent, confirmed in writing…” Model Rule 1.11(c) does not permit a lawyer to obtain consent to representation in this situation.

1.11:102 Model Code Comparison

There is no DLRPC 1.11 counterpart in the Model Code.

1.11:110 Federal Conflict of Interest Statutes and Regulations

1.11:120 Delaware Conflict of Interest Statutes and Regulations

“The General Assembly hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust.” 29 Del. C. § 1001(a) (2005).

29 Del. C. § 5805 (2005), “Prohibitions relating to conflicts of interest:

(a)  Restrictions on exercise of official authority.
   (1) No state employee, state officer or honorary state official may participate on behalf of the State in the review or disposition of any matter pending before the State in which the state employee, state officer or honorary state official has a personal or private interest, provided, that upon request from any person with official responsibility with respect to the matter, any such person who has such a personal or private interest may nevertheless respond to questions concerning any such matter. A personal or private interest in a matter is an interest which tends to impair a person's independence of judgment in the performance of the person's duties with respect to that matter.
   (2) A person has an interest which tends to impair the person's independence of judgment in the performance of the person's duties with respect to any matter when:
      a. Any action or inaction with respect to the matter would result in a financial benefit or detriment to accrue to the person or a close relative to a greater extent than such benefit or detriment would accrue to others who are members of the same class or group of persons; or
      b. The person or a close relative has a financial interest in a private enterprise which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise.
   (3) In any case where a person has a statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided, that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person.
(b)  Restrictions on representing another's interest before the state.
   (1) No state employee, state officer or honorary state official may represent or otherwise assist any private enterprise with respect to any matter before the state agency with which the employee, officer or official is associated by employment or appointment.
   (2) No state officer may represent or otherwise assist any private enterprise with respect to any matter before the State.
   (3) This subsection shall not preclude any state employee, state officer or honorary state official from appearing before the State or otherwise assisting any private enterprise with respect to any matter in the exercise of such person's official duties.
(c)  Restrictions on contracting with the state. -- No state employee, no state officer and no private enterprise in which a state employee or state officer has a legal or equitable ownership of more than 10% (more than 1% in the case of a corporation whose stock is regularly traded on an established securities market) shall enter into any contract with the State (other than an employment contract) unless such contract was made or let after public notice and competitive bidding. Such notice and bidding requirements shall not apply to contracts not involving more than $ 2,000 per year if the terms of such contract reflect arms' length negotiations. For the period of July 1, 1990 through June 30, 1991, nothing in this subsection shall prohibit a state employee, a state officer, or a private enterprise in which a state employee or a state officer has a legal or equitable ownership of more than 10% (more than 1% in the case of a corporation whose stock is regularly traded on an established securities market) from contracting with a public school district and/or the State Board of Education for the transportation of school children without public notice and competitive bidding as is permitted under § 6923 of this title.
(d)  Post-employment restrictions. -- No person who has served as a state employee, state officer or honorary state official shall represent or otherwise assist any private enterprise on any matter involving the State, for a period of 2 years after termination of employment or appointed status with the State, if the person gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of official duties as a state employee, officer or official. Nor shall any former state employee, state officer or honorary state official disclose confidential information gained by reason of public position nor shall the person otherwise use such information for personal gain or benefit.
(e)  Unauthorized disclosure of confidential information. -- No person shall disclose any information required to be maintained confidential by the Commission under § 5806(d), § 5807(b) or (d), or § 5810(h) of this title.
(f)  Criminal sanctions.
   (1) Any person who knowingly or willfully violates any provision of this section shall be guilty of a misdemeanor, punishable for each such violation by imprisonment of not more than 1 year and by a fine not to exceed $ 10,000.
   (2) A prosecution for a violation of this section shall be subject to the time limitations of § 205 of Title 11.
   (3) The Superior Court shall have exclusive jurisdiction over prosecution for all criminal violations of this section.
(g)  Contracts voidable by court action. -- In addition to any other penalty provided by law, any contract entered into by any state agency in violation of this subchapter shall be voidable by the state agency; provided, that in determining whether any court action should be taken to void such a contract pursuant to this subsection, the state agency shall consider the interests of innocent 3rd parties who may be damaged thereby. Any court action to void any transaction must be initiated within 30 days after the state agency involved has, or should have, knowledge of such violation.
(h)  Exceptions for transportation contracts with school districts. -- Except for transportation supervisors for any school district within this State, nothing in this section shall prohibit an employee or the employee's spouse or children (natural or adopted) from contracting for the transportation of school children. Such transportation contracts may be entered into by an employee or the employee's spouse or children without public notice and competitive bidding as is provided in § 6916 of this title.
(i) [Deleted.].”

1.11:200 Representation of Another Client by Former Government Lawyer

A lawyer associated with a law firm was formerly employed by the City Solicitor’s Office. When later working at the law firm, the City of Wilmington contacted the lawyer to represent the City in several pending criminal and civil actions against a defendant. A prospective client wants another member of the law firm to represent him in a legal malpractice action against the same defendant. The law firm can represent the prospective client, but it must screen the former lawyer from obtaining information about the malpractice case. Del. Ethics Opinion 1 (1991).

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

DLRPC 1.0(k) provides “‘[s]creened’ denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.” DLRPC Rule 1.0(k).

DLRPC 1.11 Comment [2] states “[b]ecause of the special problems raised by imputation within a government agency, paragraph [DLPRC] (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” DLRPC Rule 1.11 cmt. 2.

In Nemours Foundation v. Gilbane, Aetna Fed. Ins. Co., the court recognized that under DLRPC 1.11 there is an “explicit exception” to imputed disqualification. DLRPC 1.11 permits the “use of a screening mechanism in appropriate circumstances, specifically referring to former government attorneys.” Nemours Foundation v. Gilbane, Aetna, Fed. Ins. Co., 632 F. Supp. 418, 425 (D. Del. 1986) (restating DLRPC 1.11 (b) (“A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee there from.”)

An attorney’s partner is a member of the County governing body, but in this role he does not act in his capacity as an attorney. While working with the County, the attorney’s partner acquired “confidential government information” as defined in DLRPC 1.11. The attorney sought to represent a County official who was the subject of a State Attorney General’s Office criminal investigation. Under 1.11(b), the attorney’s partner, who is working with the County, must be screened from participation in the criminal investigation and must not receive any apportionment of the fee derived from the representation. If the attorney’s partner’s work with the County is “personal and substantial” in this matter, then he must comply with 1.11(a)(2) and give written notice to the County. If proceedings arise out of this pending criminal investigation, the attorney should not represent County employees before the County government. Del. Ethics Opinion 2 (1993).

1.11:300 Use of Confidential Government Information

An attorney was previously employed as a Deputy Attorney General for the state of Delaware. In that capacity, the attorney represented the Department of Correction. The attorney represented prisoners in “suits against correction officials alleged to have violated prisoners’ rights.” The attorney is currently employed by a departmental body of the State of Delaware and is representing a client who is suing a corrections officer. If the case is decided in favor of the client, the State may ultimately have to pay the judgment. The attorney advised both the client and the Department about the potential conflict, and both consented. The attorney may represent the client as long as: (1) the attorney was not “personally and substantially” involved in client’s case while employed as a Deputy Attorney General; and (2) the attorney did not obtain confidential information as the Deputy Attorney General that would be germane to the client’s claims against the corrections officer in the civil rights case. If the attorney obtained confidential information, Rule 1.11(b) prohibits his representation of the client. Del. Ethics Opinion 1 (1998).

1.11:310 Definition of “Confidential Government Information”

An attorney formerly served as Deputy Attorney General for six years and subsequently worked in private practice. The Court appointed the attorney to represent a criminal defendant who was charged with first degree murder of “Mr. Smith.” Following the commencement of discovery, “the attorney remembered Mr. Smith as someone he had prosecuted” in 1993. During the prosecution of Smith, the attorney learned from law enforcement officers that Mr. Smith was a known robber, and a reputed “fearless and dangerous criminal.” The attorney intends to offer evidence of Mr. Smith’s reputation in both the guilt and punishment phases of trial. Rule 1.11(a) does not proscribe the attorney from representing the client because the 1993 prosecution of Mr. Smith, and the current (January 1999) representation of the client for the murder of Mr. Smith, are not the “same matter.” Furthermore, under 1.11 (b), the attorney is not prohibited from representing the client because the information he obtained in 1993 is not confidential. Even if the information were confidential, it would be impossible to use it to the material disadvantage of the deceased Mr. Smith. Del. Ethics Opinion 2 (1998).

1.11:300 Government Lawyer Participation in Matters Related to Prior Representation

Lawyer A served as a Delaware state court judicial law clerk. As a law clerk, she participated personally and substantially in a libel action between Party A and Party B. She does not have any non-public information regarding the case. Lawyer A is now a Delaware Deputy Attorney General assigned to prosecute Party A. The inquiring attorney asks if DLRPC 1.12 precludes her from prosecuting Party A. The committee analogized the principles of DLRPC 1.11 to understand the definition of “matter” in DLRPC 1.12. The commentary to DLRPC 1.12 states that 1.12 “generally parallels Rule 1.11” (Successive government and private employment). The Committee determined that “at a minimum” there should be “a substantial nexus between the two proceedings before those proceedings should be considered the same matter.” The Committee determined that the libel action and administrative prosecution were not the same “matter.” Also, under DLRPC 11(b), Since Lawyer A did not acquire confidential information as a state court judicial clerk, she is not precluded from prosecuting Party A. The Committee considered whether the representation would create an “appearance of impropriety.” This standard was eliminated from DLRPC 1.11; nevertheless, the Committee utilized the standard because the Model Rules continue to apply the “appearance of impropriety” test. The Committee determined that the proposed representation did not present an “appearance of impropriety.” Del. Ethics Opinion 2 (2003).

An attorney was formerly employed by the Office of Disciplinary Counsel (“ODC”). In this capacity, the lawyer participated in an unrelated disciplinary proceeding against Lawyer A, which occurred six years previously. The disciplinary proceeding resulted in a private reprimand. The attorney represents Lawyer A in current matters pending before the ODC. Rule 1.11 prohibits “a former government lawyer representing a private client in connection with a “matter” in which the former government lawyer had previously participated on a personal and substantial basis.” Here, the Committee did not believe that the current representation of Lawyer A violated Rule 1.11 because the matters were “factually distinct (as illustrated, in part, by their distinct chronological separation).” Del Ethics Opinion 3 (1997).

1.11:500 Government Lawyer Negotiating for Private Employment

See 1.12(b) (Hyperlink).