Michigan Legal Ethics

1.11   Rule 1.11 Successive Government and Private Employment

1.11:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 1.11
¥ Background References: ABA Model Rule 1.11, Other Jurisdictions
¥ Commentary:

1.11:101      Model Rule Comparison

Michigan adopted MR 1.11 exactly.

1.11:102      Model Code Comparison

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1.11:110      Federal Conflict of Interest Statutes and Regulations

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1.11:120      MI 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 Michigan References: MI Rule 1.11(a)
¥ Background References: ABA Model Rule 1.11(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 133, Wolfram ¤ 8.10
¥ MI Commentary: Dubin and Schwartz MRPC 1.11

MRPC 1.11 concerns lawyers who enter and leave government service and, according to the comment to the Rule, it prevents a lawyer from exploiting public office for the advantage of a private client. However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from government because the government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards.

To prevent disloyalty or poor judgment during government employment, MRPC 1.11(a) prohibits lawyers from using work for the government to gain employment in the private sector. It prohibits a lawyer who has left government service from representing a private client in a matter in which the lawyer was Òsubstantially involvedÓ for the government unless the public agency has consented after consultation. Both personal and substantial participation as a public officer or employee are required. In People v Young, 181 Mich App 728; 450 NW2d 43 (1989), a former prosecutor had assisted in processing the accusedÕs original plea and had appeared at a subsequent sentencing hearing. The former prosecutor was then appointed by the court to represent the accused in a probation violation arising out of the original offense. The accused argued on appeal that his conviction should be overturned because the court-appointed attorney was a former prosecutor who had been involved in the prosecution of his underlying offense. The court found however that the defense attorneyÕs assistance in processing the original plea and the appearance at a subsequent sentencing hearing did not amount to Òsubstantial participationÓ within the meaning of the rule.

Informal Ethics Opinion RI-4 involved a situation where an assistant city attorney had read a police report and signed a complaint against a drunk driving defendant but had no other knowledge about the case. The city attorney then left public service and joined a private law firm which had a contract to represent indigent defendants. The defendant was assigned to that law firm and the ethics question posed was whether the former government employee or other lawyers in the firm could represent the defendant charged with drunk driving. The opinion concluded that since the former city attorney had not participated personally and substantially in the matter, the city attorneyÕs office need not consent to the former city attorneyÕs participation.

Several Michigan ethics opinions have construed the rule. In RI-176, a lawyer who had served as a guardian ad litem for an incompetent person was deemed to hold the position of Òpublic officialÓ and could not represent the person in a subsequent guardianship request. RI-227 concluded that a lawyer appointed by the probate court as guardian ad litem for the ward could not subsequently represent a family member who wanted to adopt the ward. RI-260 held that an attorney who was a special master in a divorce case could subsequently represent one of the parties in a legal malpractice action because the legal malpractice matter was not the same matter investigated by him as special master.

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

Subsection (a) permits other lawyers in a firm joined by a former government employee to represent a client in a matter in which the government employee had participated if the former government lawyer is screened from any participation in the matter and receives no fees. The law firm must notify the public agency of the screening, but there are no Michigan decisions or ethics opinions relating to what occurs if the government objects to the screening process.

1.11:300   Use of Confidential Government Information

¥ Primary Michigan References: MI Rule 1.11(b)
¥ Background References: ABA Model Rule 1.11(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 91:4001, ALI-LGL ¤ 133, Wolfram ¤ 8.10
¥ MI Commentary: Dubin and Schwartz MRPC 1.11

Subsection (b) appears to be designed to protect the person about whom the former government lawyer possesses confidential information gained under government authority. See Dubin and Schwartz MPRC 1.11.

1.11:310      Definition of "Confidential Government Information"

The term is defined in subrule (e) to mean information that has been obtained under governmental authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. No Michigan decisions or ethics opinions appear to exist which construe this definition further.

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

¥ Primary Michigan References: MI Rule 1.11(c)
¥ Background References: ABA Model Rule 1.11(c), Other Jurisdictions
¥ Commentary: ALI-LGL ¤¤ 132, 133, Wolfram ¤ 8.9.4
¥ MI Commentary: Dubin and Schwartz MRPC 1.11

Subsection (c) is the reverse of subsection (a) in that it applies to lawyers who move from private practice to government service. The rule does not apply if the lawyer is the only person authorized by law to act for the government in the particular matter.

The following Michigan ethics opinions have construed MRPC 1.11(c)(1): RI-1 stated that a lawyer serving as a part time domestic relations referee, a quasi-judicial position, could hear matters as a referee in which he participated as a lawyer. In RI-152, it was held that a lawyer who represented an accused at trial could not represent the State on the accusedÕs appeal after that lawyer was elected county prosecutor. In RI-266, a lawyer for the county disqualified himself from representing a county board due to prior representation in private practice.

1.11:500   Government Lawyer Negotiating for Private Employment

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

There appear to be no Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.