Florida Legal Ethics

1.11 Rule 1.11 Successive Government and Private Employment

1.11:100 Comparative Analysis of Florida Rule

¥ Primary Florida References: FL Rule 4-1.11
¥ Background References: ABA Model Rule 1.11, Other Jurisdictions
¥ Commentary:

1.11:101 Model Rule Comparison

The Florida Rule differs from MR 1.11 only in that it omits the provision in MR 1.11(c)(2) allowing a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator to negotiate for private employment pursuant to MR 1.12(b).

1.11:102 Model Code Comparison

DR 9-101(B) provides that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee, which is similar to FL Rule 4-1.11(a) except that the DR makes no provision for informed consent by the former public employee. The other provisions of FL Rule 4-1.11 have no counterparts in the Model Code.

1.11:110 Federal Conflict of Interest Statutes and Regulations

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1.11:120 Florida Conflict of Interest Statutes and Regulations

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1.11:130 Definition of "Matter"

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1.11:200 Representation of Another Client by Former Government Lawyer

¥ Primary Florida References: FL Rule 4-1.11(a)
¥ Background References: ABA Model Rule 1.11(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 133, Wolfram ¤ 8.10

No Florida cases deal with representation of a private client by a former government lawyer. In Davis v. Southern Bell Tel. & Tel. Co., 149 F.R.D. 666 (S.D. Fla. 1993), the court dealt with a motion to disqualify contract attorneys who were simultaneously representing private plaintiffs and the state in a class action lawsuit. Defendant argued that the dual representation violated FL Rule 4-1.11(b), in that confidential government information about defendant was being used against defendant to the benefit of private litigants in the lawsuit. The court first held that FL Rule 4-1.11(b) applies only to successive, not joint, representation, and further found that even if the rule did apply, none of the information complained of by defendant met the definition of "confidential" found in FL Rule 4-1.11(e), either because it was otherwise available or because the government had properly waived its privilege of confidentiality.

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

There are no cases in which the issue was the screening of a former government lawyer. Courts have discussed this provision of FL Rule 4-1.11, but only in the context of distinguishing it from FL Rule 4-1.10, which does not permit a screening process. See Birdsall v. Crowngap, Ltd., 575 So. 2d 231, 232-33 (Fla. 4th DCA 1991); Edward J. DeBartolo Corp. v. Petrin, 516 So. 2d 6 (Fla. 5th DCA 1987); State v. Fitzpatrick, 464 So. 2d 1185 (Fla. 1985).

1.11:300 Use of Confidential Government Information

¥ Primary Florida References: FL Rule 4-1.11(b) & (e)
¥ Background References: ABA Model Rule 1.11(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 133, Wolfram ¤ 8.10

1.11:310 Definition of "Confidential Government Information"

FL Rule 4-1.11(e) defines confidential government information as information obtained under governmental authority that the government has either a privilege not to disclose or is prevented by law from disclosing, or information that is not otherwise available to the public. The definition is discussed and applied in Davis v. Southern Bell Tel. & Tel. Co., 149 F.R.D. 666 (S.D. Fla. 1993).

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

¥ Primary Florida References: FL Rule 4-1.11(e)
¥ Background References: ABA Model Rule 1.11(c), Other Jurisdictions
¥ Commentary: ALI-LGL ¤ 132, 133, Wolfram ¤ 8.9.4

1.11:500 Government Lawyer Negotiating for Private Employment

¥ Primary Florida References: Rule 4-1.11(c)(2)
¥ Background References: ABA Model Rule 1.11(c)(2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤¤ 97, 133, Wolfram ¤ 9.10

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