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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.

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Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.11 RULE 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

1.11:100 Comparative Analysis of Ohio Rule

1.11:101 Model Rule Comparison

Except as noted below, Ohio Rule 1.11 is substantively identical to the Model Rule.

In Ohio Rule 1.11(a)(1), the words "all applicable laws and Rule 1.9(c) regarding conflicts of interest" have been substituted for the "is subject to Rule 1.9(c)" language contained in the Model Rule. Division (a) of the Ohio Rule also deletes the introductory language "Except as law may otherwise expressly permit,".

In Ohio Rule 1.11(b)(2), the words "as soon as practicable" are substituted for "promptly."

See section 1.11:400 for a discussion of the Ohio Rule 1.11(d) technical changes that inject ambiguity in lieu of the clarity provided by the Model Rule version.

1.11:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.11: DR 9-101(B).

1.11:110 Federal Conflict-of-Interest Statutes and Regulations

As noted in ABA, Annotated Model Rules of Professional Conduct 199 (5th ed. 2003) (commentary):

Statutes, regulations, and ordinances at every level of federal, state, and local government are the primary means of enforcement when it comes to conflicts and confidentiality issues arising out of successive government/private-sector employment.

See 18 USC § 207(a) (2000), governing post-employment conflicts of interest for former federal executive branch and certain agency officers and employees with respect to party-specific matters in which the federal government is a party or has a direct and substantial interest and in which the officer or employee had participated personally and substantially ((a)(1) -- permanent ban), or concerning matters the officer or employee know or should have known were pending under his or her responsibility within one year of termination of government service ((a)(2) -- two-year cooling-off period). 5 CFR § 2637.201(a) (2006) reiterates that the "basic" statutory prohibition (18 USC § 207(a)(1)) applies to former government lawyers who in subsequent practice attempt to represent a client before or involving the federal government in any matter in which the lawyer had participated personally and substantially while in the federal government's employ.

18 USC § 455 (2000) provides that a federal judge must disqualify herself from any proceeding in which she previously served as a lawyer "in the matter in controversy."

1.11:120 Ohio Conflict-of-Interest Statutes and Regulations

The general Ohio conflict-of-interest statute on successive employment applicable to government officials and employees is set forth in ORC 102.03(A)(1), which provides as follows:

No present or former official or employee shall, during public employment or for twelve months thereafter, represent a client or act in a representative capacity for any person on any matter in which the public official or employee personally participated as a public official or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other substantial exercise of administrative discretion.

"Represent" "includes any formal or informal appearance before, or any written or oral communication with, any public agency on behalf of any person." ORC 102.03(A)(5).

Subsections (2)-(4) (ORC 102.03(A)(2)-(4)) contain discrete prohibitions for certain government officials or employees -- to wit, members of the public utility commission, ORC 102.03(A)(2); those involved with solid-waste management plans, ORC 102.03(A)(3); and members or employees of the general assembly, ORC 102.03(A)(4). See also ORC 2921.42 (unlawful interest by public officials in public contract).

With respect to currently sitting judges, OH CJC Canon 3(E)(1)(b) provides that they must disqualify themselves from any proceeding in which they served as a lawyer "in the matter in controversy."

1.11:130 Definition of "Matter"

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 9.16 (1996).

For purposes of Ohio Rule 1.11, setting forth special conflict rules for former and current government officers and employees, "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, change, accusation, arrest or other particular matter involving a specific party or parties; [and]

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Ohio Rule 1.11(e).

As stated in ABA, Annotated Model Rules of Professional Conduct 191-92 (6th ed. 2007) (commentary):

This definition -- important because it excludes legislation, rule making, and other policy determinations -- codified ABA Formal Ethics Opinion 342 (1975):

". . . in drafting, enforcing or interpreting governmental or agency procedures, regulations, or laws, or in briefing abstract principles of law . . . . the same 'matter' is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties."

(emphasis and ellipses added). This definition is no stranger to Ohio law on the subject; in opinions generated prior to the adoption of the Ohio Rules, the Ohio State Bar Association quoted with approval the beginning of the paragraph defining "matter" set forth in ABA Formal Op. 342 (Nov. 24, 1975) (the latter portion of which is quoted above):

"[T]he term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. . . . The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter."

Ohio State Bar Ass'n Formal Op. 32, at 4 (n.d.) (ellipsis added) (part-time county prosecutor's representation of private party in wrongful death action against the same individual against whom the prosecutor obtained a criminal conviction for killing the decedent would involve the same matter.) Accord Ohio State Bar Ass'n Informal Op. 79-1, at 3 (Feb. 27, 1979) (where public employee investigated two securities offerings to determine their compliance with Ohio Securities Act, he was later prohibited from representing investors suing entities involved in the offerings for alleged violations of federal securities laws, because suits involved same matter as his prior public-employee investigation); Ohio State Bar Ass'n Informal Op. 81-1, at 2 (Feb. 23, 1981) (citing same definition in context of former judge's involvement in subsequent case).

In Formal Opinion 32, the OSBA expanded the definition of the term "matter" to include "'[s]ubstantial facts forming the basis of claim or defense; facts material to issue; transaction, event, occurrence; subject matter of controversy.'" Ohio State Bar Ass'n Formal Op. 32, at 4-5 (n.d.) (quoting Black's Law Dictionary). Query whether this expansion survives the adoption of Ohio Rule 1.11(e); Hazard and Hodes say that the identical language in MR 1.11(e) "codifies" the ABA Opinion 342 definition. 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 15.5, at 15-17 (3d ed. Supp. 2005-1).

Note, however, that Ohio Rule 1.11 cmt. [1]contains language not found in MR 1.11 cmt. [1], to the following effect: "For purposes of Rule 1.9(c), which applies to former government lawyers, the definition of 'matter' in division (e) applies." While probably a distinction without a difference (at least with respect to Rule 1.11), we think the intent would have been more precisely stated as "in applying Rule 1.9(c) to former government lawyers, the definition of 'matter' in division (e) applies." (Rule 1.9(c) deals with use or revelation of protected information of former clients in general, not such use or revelation as it applies specifically to former government lawyers.)

The Ohio Ethics Law also contains a definition of "matter" for purposes of certain of its provisions. See ORC 102.03(A)(5):

As used in divisions (A)(1), (2), and (3) of this section, "matter" includes any case, proceeding, application, determination, issue, or question, but does not include the proposal, consideration, or enactment of statutes, rules, ordinances, resolutions, or charter or constitutional amendments. As used in division (A)(4) of this section "matter" includes the proposal, consideration, or enactment of statutes, resolutions, or constitutional amendments.

Assuming the same matter is involved in the subsequent representation, it has been opined that the prohibition is not lessened by the passage of time. See Ohio State Bar Ass'n Informal Op. 81-1 (Feb. 23, 1981) (finding that former OHCPR made no provision for passage of time to lessen restriction on judicial officer's involvement in subsequent representation involving matter on which judge acted on merits in judicial capacity).

1.11:200 Representation of Another Client by Former Government Lawyer

  • Primary Ohio References: Ohio Rule 1.11(a) & (b)
  • Background References: ABA Model Rule 1.11(a) & (b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 9.14-9.18
  • Commentary: ABA/BNA § 91.4001; ALI-LGL § 133; Wolfram § 8.10

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 9.14-9.18 (1996).

Policy considerations underlying Ohio Rule 1.11: Both the public and the private sector benefit when lawyers can move relatively freely between government and private employment. This ease of movement makes government service more attractive and often brings an influx of ideas and appreciation of the private sector to government. Those moving from government bring with them an understanding of the regulatory regime in which they worked, allowing them to more easily broker cooperation between the government and those it regulates. Yet unfettered movement poses its own dangers. Special issues of side switching and misuse of confidential information are particularly acute. Ohio Rule 1.11 seeks to balance these competing concerns. See generally Ohio Rule 1.11 cmt. 4.

The scope of Ohio Rule 1.11: Whereas the former OHCPR dealt with this issue only in terms of conflicts that may occur for former governmental lawyers now in private practice (OH DR 9-101(B)), the Ohio Rule, like the Model Rule, treats the other side of the coin as well (i.e., lawyers migrating from the nongovernmental or private sector to governmental service). The latter aspect is covered in Ohio Rules 1.11(d)(1) & (2)(i), discussed in section 1.11:400 infra. The rule pertaining to migration from government to the nongovernment/private sector is set forth in Ohio Rule 1.11(a) and is treated here. (The Rule 1.11(b) imputation provisions are discussed in section 1.11:210.)

Employment restrictions stemming from prior governmental position - In general: Pursuant to Ohio Rule 1.11(a)(1), a lawyer who is a former public officer or employee must comply "with all applicable laws and Rule 1.9(c) regarding conflicts of interest." Ohio Rule 1.11 cmt. [1] and the ABA Model Rules Comparison make clear that the reference to "all applicable laws" in the Ohio Rule includes the Ohio ethics statutes found in ORC Chapters 102 and 2921 and the regulations of the Ohio Ethics Commission. With respect to compliance with Rule 1.9(c), the language of the Ohio Rule is essentially congruent with the ABA 2002 amendments to MR 1.11, which resolved a previously existing disagreement by making MR 1.11(a) applicable to former-government-lawyer conflicts to the exclusion of 1.9(a) and (b). See ABA, Annotated Model Rules of Professional Conduct 185 (6th ed. 2007) (commentary) (noting that the 2002 amendments codified the position taken in ABA Formal Op. 97-409 (Aug. 2, 1997), which "explains that for conflicts purposes, the rule on government employment supplants -- rather than supplements -- the rule on former-client conflicts." ABA, Annotated Rules 185. This was done "[i]n order not to inhibit transfer of employment to and from the government." Id.

Pursuant to Ohio Rule 1.11(a)(2), the former government lawyer is prohibited from representing a client "in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee," unless the government agency in question gives its informed consent, confirmed in writing, to the representation. Division (a)(2) (as well as (d)(2)) applies irrespective of whether the lawyer is adverse to a former client. Even if the former client would not be directly harmed, protections are necessary in order to prevent a lawyer from exploiting his public office for the advantage of another client. Ohio Rule 1.11 cmt. [3].

Differences between Ohio Rule 1.11 and former OH DR 9-101(B): It may be helpful to flag the differences between the new Rule and former OH DR 9-101(B). As noted above, Ohio Rule 1.11(in subdivisions (d)(1) & (2)(i)) covers migrations to the government, as well as from the government. OH DR 9-101(B) was limited to the latter. (A 2006 opinion of the Board Commissioners read the language of former 9-101(B) expansively; even though the disciplinary rule "explicitly restrict[s] the acceptance of private employment," the Board opined that it "implicitly and logically also restrict[s] the acceptance of some public employment in matters in which an attorney . . . had substantial responsibility." Bd. of Comm'rs on Grievances & Discipline Op. 2006-6, 2006 Ohio Griev. Discip. LEXIS 4, at *7 (June 9, 2006) (former Child Support Enforcement Agency (CSEA) hearing officer could not represent state in matter in which the lawyer had made determinations or issued orders).) With respect to migrations from the government, the Rule applies to matters on which the former government lawyer "participated personally and substantially," rather than the "substantial responsibility" measure of OH DR 9-101(B). In this regard, the Rule thereby makes explicit the gloss that had been put on the "substantial responsibility" language of the former disciplinary rule, as contemplating "personal involvement." See Ohio State Bar Ass'n Informal Op. 79-1, at 4 (Feb. 27, 1979), quoting from ABA Formal Op. 342 (Nov. 24, 1975). For a more recent explication of "substantial responsibility," see Op. 2006-6 supra, where the Board opined that "[w]hen an attorney serving as a CSEA administrative hearing officer participates in a matter, renders a determination, or issues an administrative order, he or she is considered to have exercised substantial responsibility . . . ." Id. at *7. Also, division (a)(2) of the Rule deals only with "former" government officers or employees; the disciplinary rule was not so limited. See Bd. of Comm'rs on Grievances & Discipline Op. 90-10, 1990 Ohio Griev. Discip. LEXIS 17 (June 15, 1990) (OH DR 9-101(B) would prohibit part-time CSEA attorney from representing in private practice anyone involved in one of the lawyer's CSEA cases). See also Board Opinion 2006-6, discussed above.

Under the OHCPR, restrictions on private employment, if applicable, were not subject to waiver by consent of those affected. Bd. of Comm'ns on Grievances & Discipline Op. 93-10, 1993 Ohio Griev. Discip. LEXIS 2 (Dec. 3. 1993). Ohio Rule 1.11(a)(2) changes that by providing that the representation can go forward provided the appropriate government agency gives its informed, consent, confirmed in writing.

The only two judicial opinions found under the Code that applied OH DR 9-101(B) to a former government lawyer who had moved to private practice are City of Cleveland v. Cleveland Electric Illuminating Co., 440 F.Supp. 193 (N.D. Ohio), aff'd, 573 F.2d 1310 (1977) (table), and Randal S. O. v. Tammy M. R., 2004 Ohio 6469, 2004 Ohio App. LEXIS 5904 (Huron). In City of Cleveland, the court rejected out of hand the argument that there was an OH DR 9-101(B) problem presented by the fact that a former chief counsel for the city was now a member of the firm representing one of the defendants in an antitrust suit brought by the city:

[T]he record is conspicuously silent as to any specific claims or matters involving [the lawyer's] participation in [relevant] affairs, either substantially or remotely related to the antitrust action presently before this Court.

440 F.Supp at 212 (bracketed material substituted). But where the lawyer had substantial responsibility in the same matter when he was a public employee, the disqualification of the lawyer was affirmed. Randal S. O. v. Tammy M. R. supra (lawyer disqualified from representing mother in action for modification of child-support when, as a former government attorney for the CSEA, he had met with father concerning adjustments to same child support and had submitted to court judgment entry adopting the agency's findings of recalculation of the amount).

Employment restrictions stemming from prior governmental position - Test to apply: In exploring the circumstances in which private employment is barred under Ohio Rule 1.11(a), it is worthwhile addressing several subsidiary questions: (1) In what public capacity must the lawyer have served to trigger a restriction on private employment under the Rule? (2) How does one determine if the private employment involves the same matter with which the lawyer had been involved in a governmental capacity? (3) What degree of involvement in the matter in a governmental capacity is necessary to make the restrictions applicable? (4) What type of employment outside one's governmental capacity is barred? These questions are discussed in the following paragraphs.

(1)Employment restrictions stemming from prior governmental position - The scope of prior governmental involvement: Ohio Rule 1.11(a) applies to a lawyer who was a former government officer or employee. As such, it probably is safe to conclude that, as under the former OHCPR (where the reference was to "public employee"), this broad language was chosen to make clear that the prohibition attaches regardless of whether the lawyer was acting as a lawyer when involved in a matter in a governmental capacity. Thus, the same result would likely be reached under Ohio Rule 1.11(a) as was reached under OH DR 9-101(B) in Ohio State Bar Ass'n Informal Op. 79-1 (Feb. 27, 1979), where it was opined that a lawyer was precluded by the OHCPR from subsequently representing investors in a federal securities lawsuit involving the same securities offerings that the lawyer had, in an agruably nonlegal position for the State of Ohio, investigated to determine their compliance with the Ohio Securities Act. As the opinion notes, "the intent clearly was for DR 9-101(B) to be applicable to the lawyer whose former public or governmental employment was in any capacity and without regard to whether it involved work normally handled by lawyers." Id. at 4.

(2) Employment restrictions stemming from prior governmental position - Definition of the term "matter": See section 1.11:130.

(3) Employment restrictions stemming from prior governmental position - Degree of involvement required: As noted above, in addition to compliance with all other conflicts-of-interest laws and Rule 1.9(c) (restriction on use or relevation of information relating to former representation), under Ohio Rule 1.11(a)(2) the former government lawyer's participation in the matter must have been both "substantial" and "personal." In this regard, the new Rule is less restrictive than Ohio State Bar Ass'n Informal Op. 90-3 (July 13, 1990), where the OSBA opined that a lawyer, formerly employed as an assistant attorney general representing the reparations fund in the victims-of-crimes division of the court of claims, should not represent a private claimant under such provisions, if the claim arose during the lawyer's employment at the attorney general's office and if the lawyer "had any knowledge of the merits of that claim" or if the lawyer "had any direct contact with the matter." Id. at 2. A Board opinion decided under the Code that would likewise seem not to meet the "personal" aspect of the Rule 1.11(a)(2) test is Bd. of Comm'rs on Grievances & Discipline Op. 2001-5, 2001 Ohio Griev. Discip. LEXIS 6 (Oct. 5, 2001). In Opinion 2001-5, the Board applied former OH DR 9-101(B) in finding that a court-employed lawyer/mediator could not conduct a private mediation for a fee of any case pending on the docket of the employing court, even if the lawyer/mediator played no role in the court-based process for that case, because the lawyer still had "substantial responsibility" in that matter.

Certainly the personal-and-substantial-participation provisions of Rule 1.11(a)(2) would have been easily satisfied and representation barred (absent informed written consent by the agency) on the facts presented in Randal S.O. v. Tammy M.R., 2004 Ohio 6469, 2004 Ohio App. LEXIS 5904 (Huron). In Randal the disqualification of a former government attorney was affirmed where the lawyer represented a client seeking to modify a reduction in child support -- the very reduction that the lawyer had previously effected as an attorney for the Huron County Child Support Enforcement Agency, after having met with the father (the present defendant) to discuss his child support obligation. As the court of appeals set forth in its opinion, quoting with approval from the trial court, the lawyer, when at the CSEA had "'substantial responsibility in the matter'" and "'personal contact with and knowledge about'" it. Id. at ¶ 14.

(4) Employment restrictions stemming from prior governmental position - Prohibited employment: As Ohio Rule 1.11(a)(2) states, the employment prohibited is representation of a client by a former government officer or employee in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed, written consent.

The Rule and its comments envision that "a client" may, in some circumstances at least, be another governmental agency or entity, as well as a private client. Thus, Comment [4] refers to instances in which "the successive clients are a government agency and another client, public or private . . . . " Ohio Rule 1.11 cmt. [4]. And Comment [5] states that "[w]hen a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency." Ohio Rule 1.11 cmt. [5]. (The comment goes on to say that this conflict is governed by division (d). This has to be a reference to (d)(1) (applicability of Rules 1.7 & 1.9); division (d)(2)(i) is limited to participation by a current government officer or employee regarding a matter in which the lawyer participated "while in private practice or nongovernmental employment.")

Finally, the comments make clear that there is no prohibition in Ohio Rule 1.11 against joint representation of a private party and a governmental agency, so long as it is permitted under Ohio Rule 1.7 and not otherwise prohibited by law. Ohio Rule 1.11 cmt. [9]. See discussion at section 1.10:600.

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

Ohio Rule 1.11(b) expressly permits lawyers in the firm with which a lawyer (disqualified under division (a)) has become associated to undertake representation in such a matter, if the disqualified lawyer is "timely screened" from any participation in the matter (and is apportioned no part of the fees therefrom), 1.11(b)(1), and if written notice is given "as soon as practicable to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule." 1.11(b)(2). "Note that the government's consent is not required by Rule 1.11." ABA, Annotated Model Rules of Professional Responsibility 202 (5th ed. 2003) (commentary). The Ohio version of Comment [7] adds language permitting a "reasonable delay" in the required notice to the appropriate government agency when "disclosure [of the prior representation and the employment of screening procedures] is likely to significantly injure the current client." Ohio Rule 1.11 cmt. [7]. The requirements and procedures for screening in this context are addressed in Ohio Rule 1.0(l) & cmts. [9] & [10]. See Ohio Rule 1.11 cmt. [6] [erroneously citing Rule 1.0(l) as 1.0(k)]. See also section 1.10:300.

1.11:300 Use of Confidential Government Information

  • Primary Ohio References: Ohio Rule 1.11(c); ORC 102.03(B)
  • Background References: ABA Model Rule 1.11(c)
  • Commentary: ABA/BNA § 91:4009; ALI-LGL § 133; Wolfram § 8.10

While in government service, individuals are often exposed to the confidential information of regulatees. Allowing one to move from the agency and use that information to the disadvantage of the regulatee seems a breach of public trust and would, if common, discourage information-sharing with the government. Ohio Rule 1.11(c) addresses this issue.

Pursuant to Ohio Rule 1.11(c), a former government lawyer having information the lawyer knows is confidential government information about a "person," acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to that person's "material disadvantage."

Several aspects of the Rule deserve greater discussion. First, one should note that the Rule applies where the former government employee learned certain information about a "person." While one might argue that the use of the word "person" puts otherwise protected information about an entity outside the ambit of the Rule, surely this is not what was intended. One of the accepted definitions of "person" (in addition to human being) is an entity recognized by law as having the rights and duties of a human being. Black's Law Dictionary 1178 (8th ed. 2004). See also 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §§ 15.7-15.8 (3d ed. Supp. 2005-1) (using "third party" or "private party" as the operative term and citing cases involving corporations). See id. at Illus. 15-5 & 15-6.

Second, the Rule is limited to the potential misuse of "confidential government information." The meaning of this phrase is discussed in section 1.11:310.

Third, the restriction applies only when the lawyer in undertaking private representation "knows" confidential government information and the rest of the test is satisfied. While Comment [8] makes clear that this prohibition is triggered by "actual knowledge" of confidential government information, Ohio Rule 1.11 cmt. [8], actual knowledge may be inferred from the circumstances. See Ohio Rule 1.0(g).

Fourth, the restriction applies only when the information is obtained while in government employment and the information "could" be used to the material disadvantage of the submitter. No actual showing of misuse of the information is required. As long as the former government employee "could" use the information to the material disadvantage of the submitter, the provision is triggered.

Fifth, for the restriction to apply, the lawyer's private client must have interests adverse to the submitter in a matter. Two aspects of this qualification are important. First, the parties' interests need only be "adverse," not "materially adverse" as some rules require. Compare Ohio Rule 1.9(a). Second, the concern arises only when this adversity arises in connection with a "matter" as defined in Ohio Rule 1.11(e). The law surrounding this definition is addressed in section 1.11:130.

Finally, the restriction applies only if the lawyer could use the information on behalf of a private client to the "material disadvantage" of the submitter. As written, it seems reasonably clear that the qualifier "material" is meant to denote the degree of harm such use might cause the submitter, not to require some relationship between the disadvantage and the matter at hand.

When the rule is triggered, the lawyer's firm may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from participation in the matter and is apportioned no part of the fee therefrom. Ohio Rule 1.11(c). According to ABA, Annotated Model Rules of Professional Conduct 189 (6th ed. 2007) (commentary), the "conflict resulting from possession of 'confidential governmental information' cannot be waived."

1.11:310 Definition of "Confidential Government Information"

Ohio Rule 1.11(c) contains the definition of "confidential government information" (similar to that contained in ORC 102.03(B), quoted below) for purposes of 1.11:

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.

ORC 102.03(B) also bears on the use of confidential government information by a former government official or employee:

No present or former public official or employee shall disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official's or employee's official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.

With regard to these provisions, one should keep in mind the Ohio Public Records Act, ORC 149.43, pursuant to which "public records" are to be made available to any person upon request. Documents subject to public records disclosure would, by definition, not be "confidential government information." But the Public Records Act exempts from disclosure some 25 different categories (see ORC 149.43(A) (a)-(y), including records the release of which is prohibited by law (ORC 149.43(A)(1)(v)), which category includes documents protected by the attorney-client privilege. See, e.g., State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam). For general commentary on the interaction of the Rule 1.11(c) definition and public records acts, see 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 15.8 (3d ed. Supp. 2005-1). See also 1 Restatement (Third) of the Law Governing Lawyers §§ 74, reporter's note to cmt. b, at 577-78 (2000) (attorney-client privilege; work product).

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

  • Primary Ohio References: Ohio Rule 1.11(d)(1) & (2)(i)
  • Background References: ABA Model Rule 1.11(d)(1) & (2)(i)
  • Commentary: ALI-LGL §§ 132, 133; Wolfram § 8.9.4

Under Ohio Rule 1.11(d), "[e]xcept as law may otherwise expressly permit, a lawyer currently serving as a government officer or employee" (1) must comply with Ohio Rules 1.7 (current-client conflicts) and 1.9 (former-client conflicts), and (2) shall not "participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing." Ohio Rule 1.11(d)(1) & (2)(i).

The former client's interests are protected by the applicability of Ohio Rule 1.9, which requires the former client's consent. The 1.11(d) bar is personal to the individual lawyer; there is no imputation to other government officers or employees with whom the lawyer works. Ohio Rule 1.11 cmts. [2] & [5]. Screening, however, is ordinarily "prudent." Id. Accord as to both points, 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 15.2, at 15-8 & § 15.9, at 15-32 (3d ed. Supp. 2005-1); id. § 15.9, at 15-32 & -33; ABA, Annotated Model Rules of Professional Conduct 190 (6th ed. 2007) (commentary). (As a technical aside, the language used to introduce subdivisions (d)(1) and (d)(2) varies from the Model Rule and is both cumbersome and unclear. Thus, governmental lawyers in Ohio are directed to "comply with both of the following: (1) Rules 1.7 and 1.9; (2) shall not do either of the following (i) participate in a matter [etc.]; (ii) negotiate for private employment, [as to which see section 1.11:500]." Does "both of the following" refer to Rules 1.7 and 1.9, or to subdivisions (1) and (2) of division (d)? In all likelihood the latter, but the unnecessary ambiguity injected into the Ohio version by this "comply-with-both and don't-do-either" drafting could easily be eliminated by returning to the Model Rule formulation, which clearly provides that the lawyer "is subject to Rules 1.7 and 1.9; and shall not" (i) participate or (ii) negotiate.)

Pre-Rule Ohio decisions, primarily disqualification cases, are basically compatible with the standards set forth in Ohio Rule 1.11(d)(1) & (2)(i). Those cases involved participation by a government lawyer (usually a prosecutor) in matters related to a prior representation as a defense lawyer. Most were applications of the "side-switching" rules announced in Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), as to which see extensive discussion in section 1.9:200. As a general rule, those cases teach that the migrating lawyer cannot further participate in the matter on the government's side if he or she was involved, while in private practice or a public defender's office, in the same or a substantially related case, but that the conflict typically is not imputed to the governmental office or agency with which the lawyer is associated. The question of disqualification of an entire prosecutor's office was, in the majority of Ohio's appellate districts, decided on a case-by-case basis.  State v. Vidu, Nos. 71703, 71704, 1998 Ohio App. LEXIS 3390 (Cuyahoga July 23, 1998). Disqualification of an entire office typically required a showing of actual prejudice, not just an appearance of impropriety. E.g., State v. Waggaman, No. 96 CA0078, 1997 Ohio App. LEXIS 3732 (Medina Aug. 20, 1997) (disapproving contrary holding in State v. Cooper, 62 Ohio Misc. 1, 409 N.E.2d 1070 (C.P. Hancock 1980)); accord State v. Perotti, No. 89 CA1845, 1991 Ohio App. LEXIS 2393 (Scioto May 15, 1991). A number of these cases noted that former OH DR 5-101(D) could not be construed to mandate the disqualification of an entire government office or department; otherwise, "the government's ability to function would be unreasonably impaired." E.g., Vidu, 1998 Ohio App. LEXIS 3390, at *9; Waggaman, 1997 Ohio App. LEXIS 3732.

One aspect of Ohio Rule 1.11 as it applies to cases such as these and those following should be noted. Some involved a government lawyer who was formerly in a public defender's office, which is a governmental position. Since subdivision (d)(2)(i) is limited to government lawyers formerly in private practice or nongovernmental positions, it is Ohio Rule 1.11(d)(1) (requiring compliance with Rule 1.9), not (d)(2)(i), that would be applicable.

Further on the issue of disqualification of a government lawyer (and imputation to the government lawyer's office), based on the lawyer's prior representation while in the private sector or in a public defender's office, see the following pre-Rule cases:

  • State v. Britton, 2000 Ohio 1881; 2000 Ohio App. LEXIS 2521 (Marion June 14, 2000) (trial court did not abuse its discretion in denying motion for post-conviction relief based on prosecutor's prior involvement, while in private practice 18 years earlier, in handling defendant's direct appeal; Kala hearing revealed that presumption of shared confidences was rebutted by erection of adequate safeguards, including turning complete control of case over to assistant prosecutor; court further found that prosecutor had no confidential information to divulge).

    Such a case, involving a prosecutor formerly in private practice, would now be controlled by Ohio Rule 1.11(d)(2)(i); no imputation to entire office, Rule 1.11 cmt. [2].

  • State v. Edighoffer, Nos. 96 CA 161, 96 CA 162, 1998 Ohio App. LEXIS 6191 (Mahoning Dec. 16, 1998) (affirming in child-abuse case trial court's denial of defendant's motion to disqualify prosecutor who had represented defendant in a DUI case four years before; the past representation and present prosecution "not even marginally related," id. at *14).

    The result would be the same under Ohio Rule 1.11(d); not the same "matter."

  • State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Portage 1998) (defendant's public defender lawyer went to work for prosecutor's office while case on direct appeal to Supreme Court; presumption under Kala that lawyer shared information with new colleagues that could be used against defendant in matter at issue (postconviction relief proceeding); trial court erred in denying motion for disqualification of prosecutor's office and appointment of special prosecutor without holding hearing at which state would have opportunity to rebut presumption of shared confidences).

    Prosecutor's disqualification would be controlled by provisions of Ohio Rule 1.9(c) incorporated by reference in Rule 1.11(d)(1); no imputation to entire office, Rule 1.11 cmt. [2].

  • State v. Perotti, No. 89 CA1845, 1991 Ohio App. LEXIS 2393 (Scioto May 15, 1991) (rejecting defendant's argument that entire prosecutor's office should be disqualified where assistant prosecuting attorney, whom the trial court ordered not to participate in the prosecution, had previously represented the defendant in a totally unrelated criminal matter five years before; rejecting per se disqualification rule in favor of "facts and circumstances" test).

    Same result under new Rule; not the same "matter."

  • State v. Murphy, No. 9-87-35, 1988 Ohio App. LEXIS 4673 (Marion Nov. 17, 1988) (overruling motion to disqualify entire prosecutor's office from further participation in connection with defendant's appeal; motion based on fact that lawyer in prosecutor's office had been employed by public defender's office appointed to represent defendant on appeal; lawyer in question did not work on, had no knowledge of, and did not discuss case while employed as public defender and submitted affidavit that he would not participate in the appeal; case decided pre-Kala).

    Result consistent with Ohio Rule 1.11(d)(1), incorporating standards of Rule 1.9; no imputation to entire office, Rule 1.11 cmt. [2].

  • An ethics opinion dealing with a former public defender who became county prosecutor is Bd. of Comm'rs on Grievance & Discipline Op. 88-15, 1988 Ohio Griev. Discip. LEXIS 36 (June 17, 1988). The Board there approved of the prosecutor's proposal to appoint an assistant as special prosecutor to handle those cases that were pending in the public defender's office when the prosecutor served there. Referring with approval to ABA Formal Op. 342 (Nov. 24, 1975), the Board further opined that it would be prudent for the prosecutor to "screen yourself from any participation in the particular cases." 1988 Ohio Griev. Discip. LEXIS 36, at *2-3.

    Again, result consistent with Rule 1.11(d)(1).

With respect to the efforts in some of these cases to disqualify the entire prosecutor's office, as noted above Ohio Rule 1.11 cmt. [2] makes clear that "division (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 . . . ." Screening of such lawyer, while not required, is, however, ordinarily advisable. Id.

Note as well that in those cases involving the same matter, the former client would hold the trump card as to the individual lawyer's adverse representation; under Rule 1.9, incorporated by reference in 1.11(d)(1), his or her "informed consent, confirmed in writing," would be required.

Remember too that Ohio Rule 1.11(d) covers concurrent as well as former-client conflicts. Thus a lawyer "currently serving as a public officer or employee shall comply with . . . Rule[] 1.7." Rule 1.11(d)(1). While the case law dealing with this subject is sparse in comparison with that involving former-client conflicts flowing from lawyers migrating to or from the government, there is at least one pre-Rule Ohio case dealing with the issue. In State v. Condon, 152 Ohio App.3d 629, 2003 Ohio 2335, 789 N.E.2d 696 (Hamilton), a criminal defendant argued for dismissal of the indictment and disqualification of the prosecutor's office because that office was obligated to defend him, a county employee, in a civil lawsuit arising out of the same conduct. The court held that the mere appearance of impropriety in a government attorneys' office was not sufficient to warrant vicarious disqualification of the entire office, and, inasmuch as defendant presented no evidence of actual conflict at the trial court hearing on the motion, denial of the motion was affirmed. We don't know enough facts to be able to tell how Ohio Rule 1.7 (applicable by reference in Rule 1.11(d)(1)), would play out in Condon. If, as is likely, different lawyers in the office handled the two cases, there should be no personal disqualification problem under 1.7. If the same prosecutor attempted to represent both the state in the criminal matter and the defendant in the civil action, 1.7(a) would in all likelihood be violated, there being no chance of consent under 1.7(b). Once again, even if personal disqualification were called for in one or another of the cases, there would be no imputation to others in the office. Ohio Rule 1.11 cmt. [2]. See also section 1.10:600 at "Imputed disqualification of private attorneys associated with part-time government attorney."

The Board of Commissioners dealt with the Rule 1.11(d)(1) obligation of current government lawyers – in this instance a city law director – in Bd. of Comm'rs of Grievances & Discipline Op. 2007-4, Ohio Griev. Discip. LEXIS 4 (June 8, 2007). The question put was whether it is proper, when there is a conflict between or among the city, city officials, or city entities, for the law director to provide counsel by means of use of different assistant law directors for each client.

The Board's answer was that if there is in fact a conflict under Rule 1.7(a) and the conditions set forth in 1.7(b) are satisfied (competent and diligent representation can be provided to each client, informed consent of each client is obtained, and Rule 1.7(c) does not apply), then the representation can go forward, preferably by use of a different lawyer in the law department for each client.  However, if under 1.7(c) such representation is prohibited by law or the city entities are directly adverse in the same proceeding, the Board opined that the law department could not represent both city clients, even by using different city lawyers to represent each. (Under this analysis, one of the city clients presumably would have to be represented by special counsel from outside the law department.)

Overall, this seems a reasonable reading of Rules 1.11 and 1.7, although there is at least one quibble; one of the specific fact situations raised by the requester was that of a city law director representing the city in a disciplinary proceeding against a city employee before the city civil service commission, and at the same time providing legal advice to the commission itself regarding the disciplinary matter.  The Board found this "inappropriate" under Rule 1.7(c), but without specifying which aspect of 1.7(c) would be implicated. The example is not one of representing two clients directly adverse to one another in the same proceeding, condemned by 1.7(c)(2), but rather representing one of the participants and the decision-maker in the same proceeding. We agree that such dual representation would be "inappropriate"; a lawyer surely could not represent both the tribunal and one of the adversaries before that tribunal. We suspect this is "prohibited by law," but it would have been helpful if the Board had cited chapter and verse to that effect. Instead, the Board gives us a variation on the now discredited appearance-of-impropriety theme ("strong appearance that . . . [it] is inappropriate under Rule 1.7(c)," id. at *14-15) and leaves it at that.

Finally, some migrations to government, such as to judicial office from another public office or from private practice, are controlled by other provisions tailored specifically to the governmental position in question. See OH CJC Canon 3(E)(1)(b).

1.11:410 No Imputed Disqualification of Those Associated in a Firm with Current Government Lawyers

Rule 1.10(f) provides that “disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.” Imputed disqualification of those associated in a firm with a former government lawyer who is disqualified can be cured by screening and notice. See Rule 1.11(b) and section 1.11:210 supra. With respect to imputed disqualification of other government lawyers associated with a disqualified current government lawyer, Rule 1.11 cmt. [2] provides that, “[b]ecause of the special problems raised by imputation within a government agency, division (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.” Thus, in addition to stating the imputation rule regarding lawyers associating in a “firm” with a former government lawyer, consistent with Rule 1.10(f), Rule 1.11 actually goes further than 1.10(f) and also provides the rule in the non-“firm” context of those associated with the disqualified government lawyer in a government agency. (See Rule 1.0 cmt. [4(A)]; “firm” does not include government agencies.)

But what about the current government lawyer who also has a part-time private practice in a firm with other lawyers?  If the part-time government lawyer is disqualified from a matter, are her partners and associates also disqualified? If so, can it be cured by screening and notice?

Despite the seeming promise of 1.10(f) that Rule 1.11 will address the imputation issues arising with respect to lawyers associated in a firm with either a former or a current government lawyer disqualified from a matter, Rule 1.11 has nothing at all to say on these issues when they involve a current government lawyer.  It is against this rather contradictory regulatory backdrop that the Board of Commissioners decided Op. 2008-5, 2005 Ohio Griev. Discip. LEXIS 5 (Aug. 15, 2008).

The Rule 1.11 aspect of Op. 2008-5 comes up in the context of whether a conflict of interest of a part-time city law director is imputed to other lawyers in the law firm of which the city law director is a member. First, the Board looked to Rule 1.10(f), which refers the reader to 1.11 for the governing rule. The Board then stated that “application of Rule 1.11 requires a close examination of the rule.” Id. at *10.  Unfortunately, the Board cited to the wrong subdivision of the Rule; the multiple references to Rule 1.11(c) should have been to Rule 1.11(d). An errata notation to this effect was placed at the beginning of the opinion sometime in December 2008.  See id. at *1.  Using the correct subdivision references, the analysis of the Board was that Rule 1.11(d)

applies to current government lawyers.  No mention is made anywhere in Rule 1.11(d) of imputing the disqualification of a current government lawyer to the lawyers associated in a law firm with the current government attorney.

Id. at *10-11 (emphasis in original). In the absence of such a directive, the Board concludes that there is no imputation “to law firm partners or associates who wish to privately represent criminal defendants outside the jurisdiction of the city law director.” Id. at *11.

Thus we have under Rule 1.11 a regime pursuant to which lawyers in a firm associated with a former government attorney who is disqualified are likewise disqualified unless the former government lawyer is screened and notice is given as provided in 1.11(b)(1) & (2). But on the same facts, if the disqualified lawyer is a current part-time government attorney, other lawyers at the firm are not subject to disqualification and need not engage in screening or notice.

While the Board’s result is not unreasonable in terms of what Rule 1.11 says (or does not say), does it make sense from a policy point of view to subject those associated in a law firm with a disqualified former government attorney to more stringent imputed disqualification rules than those applicable to law firm associates of a current government lawyer?  At the very least the matter ought to be addressed one way or the other, instead of remaining in limbo. If Rule 1.11 is meant to state the imputed disqualification rules for lawyers associated in a firm with a current government lawyer, as Rule 1.10(f) provides, then it would seem not too much to ask that Rule 1.11 do just that.  The absence of any direction on the subject in the rule seems to us worthy of a further look by the Supreme Court.

In the meantime, Opinion 2008-5, however unsatisfactory it appears to be from a policy standpoint, remains the latest word on the issue.  The sooner the matter is addressed by the Supreme Court the better.

This less than desirable state of affairs is exacerbated by the Board’s partial modification of Opinion 2008-5 in Bd. of Comm’rs on Grievances & Discipline Op. 2008-6, 2006 Griev. Discip. LEXIS 6 (Dec. 5, 2008). Not only is the Rule 1.11 portion of 2008-5 not a part of the modification, but Opinion 2008-6 resuscitates Bd. of Comm’rs on Grievances & Discipline Op. 88-008, 1988 Ohio Griev. Discip. LEXIS 28 (June 17, 1988), insofar as it opined that there were certain narrow circumstances where a part-time municipal prosecutor could represent criminal defendants. (See further discussion of Opinions 2008-5, -6 and 1988-008 in section 1.7:320, at “Government attorneys representing criminal defendants.”) Opinion 2008-5 had rejected this aspect of Opinion 1988-008, as well as rejecting that opinion’s determination that any preclusion of the prosecutor from such representation would be imputed to the other members of the prosecutor’s law firm. This rejection in Opinion 2008-5 of the imputation advice given in Opinion 1988-008 is not dealt with in Opinion 2008-6 and thus apparently remains unmodified. (Sound confusing? You betcha!)  Whether or not the Supreme Court examines the imputation issue, the difficulty in parsing the two opinions in combination is such that the Board might well consider withdrawing both opinions and crafting a single opinion that eliminates the confusion and uncertainty inherent in existing Opinions 2008-5 and -6.

Further discussion of the disconnect between Rules 1.10(f) and 1.11 and of these imputed disqualification issues appears in section 1.10:600 at “Imputed disqualification of private attorneys associated with part-time government attorney.”

1.11:500 Government Lawyer Negotiating for Private Employment

  • Primary Ohio References: Ohio Rule 11.1(d)(2)(ii)
  • Background References: ABA Model Rule 1.11(d)(2)(ii)
  • Commentary: ABA/BNA § 91.4010; ALI-LGL § 125; Wolfram § 8.10.3

Ohio Rule 1.11(d)(2)(ii) provides that:

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee . . . :

* * * *

(2) shall not . . .

* * * *

(ii) negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

See section 1.12:300. Hazard and Hodes note that the (d)(2)(ii) "is participating" language prohibits the government lawyer from seeking "employment from private parties (or listen[ing] to overtures from them) while she is actively opposing them. After the opposing relationship has ended, however, negotiations are no longer unseemly and accordingly are permitted." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 15.10, at 15-34 (3d ed. Supp. 2005-1) (bracketed material added).