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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Oregon Legal Ethics

1.11   Rule 1.11 Successive Government and Private Employment

1.11:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 5-109(B), 8-101(A)(4)
Background References: ABA Model Rule 1.11, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 14.3, 14.16

The DRs do not recognize a distinction between government attorneys and private attorneys, although some of the disciplinary rules apply only to government lawyers.

1.11:101      Model Rule Comparison

DR 5-109(B) is substantively similar to MR 1.11(a), except that DR 5-109(B) does not specifically provide for imputation of the conflict to members of the lawyer’s private law firm. The DRs do not have counterparts to MR 1.11(b) through (e).

DR 8-101(A)(4) prohibits a lawyer, either while in public office or after leaving public office, from using “confidential government information obtained while a public official to represent a private client.” “Confidential government information” is information obtained “under governmental authority and which at the time the information is used the government is prohibited by law from disclosing to the public or has legal privilege not to disclose and which is not otherwise available to the public.” DR 8-101(A)(4)(a). By contrast, MR 1.11(b) approaches “confidential government information” as a conflict-of-interest issue. It prohibits a lawyer with “confidential government information about a person acquired when the lawyer was a public officer or employee” from representing a “private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” Id. This conflict of interest is imputed to the entirety of the former public official’s new law firm, unless the disqualified lawyer is properly screened.

1.11:102      Model Code Comparison

DR 5-109(B) is similar to MC DR 9-101(B), except that the former removes disqualification if the employee obtains consent from the appropriate government agency after full disclosure. The ABA Model Code does not contain a direct counterpart to DR 8-101(A)(4).

1.11:110      Federal Conflict of Interest Statutes and Regulations

In addition to the prohibitions contained in the DRs, former federal government lawyers are subject to federal statutes and regulations governing conflicts. These prohibitions are often more restrictive than those set forth in the DRs and frequently provide for criminal as well as civil penalties. See, e.g., 18 USCA §§ 205, 207 (2000).

1.11:120      Oregon Conflict of Interest Statutes and Regulations

DR 5-109(B) provides that, “[e]xcept as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after full disclosure.” OSB Legal Ethics Op No 1991-120 largely equates personal and substantial participation to what would constitute a former-client matter-specific conflict, as those terms are used in DR 5-105(C)(1).

1.11:130      Definition of "Matter"

DR 5-109(B) speaks in terms of “a matter in which the lawyer participated personally and substantially,” but the DRs do not specifically define “matter.” The phrase “participated personally and substantially” “contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.” ABA Formal Ethics Op 342 (1975); State of Minnesota v. United States Steel Corporation, 44 FRD 559 (D Minn 1968); OSB Legal Ethics Op No 1991-120 (equating personal and substantial participation to what would constitute a former client matter-specific conflict, as those terms are used in DR 5-105(C)(1) and In re Brandsness, 299 Or 420, 702 P2d 1098 (1985)).

1.11:200   Representation of Another Client by Former Government Lawyer

Primary OR References: DR 5-109(B), 8-101(A)(4)
Background References: ABA Model Rule 1.11(a), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 133, Wolfram § 8.10
OR Commentary: EOL §§ 14.3, 14.16

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

A former government lawyer may represent a client in connection with a matter in which the lawyer was personally and substantially involved while in government service, provided that full disclosure is made and the client’s consent is obtained. See DR 5-109(B), 8-101; OSB Legal Ethics Op Nos 1991-120, 1991-102. Such disclosure must be made to, and consent must be obtained from, the appropriate government agency. DR 5-109(B). If the former government lawyer is unable to obtain such consent, the firm to which that lawyer belongs may still represent its client, provided the former government lawyer is screened pursuant to DR 5-105(I).

1.11:300   Use of Confidential Government Information

Primary OR References: DR 8-101(A)(4)
Background References: ABA Model Rule 1.11(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 133, Wolfram § 8.10
OR Commentary:

1.11:310      Definition of "Confidential Government Information"

[The discussion of this topic has not yet been written.]

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

Primary OR References:
Background References: ABA Model Rule 1.11(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 132, 133, Wolfram § 8.9.4
OR Commentary:

The DRs do not have a direct counterpart to MR 1.11(c).

1.11:500   Government Lawyer Negotiating for Private Employment

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

The DRs do not directly address the issues raised in MR 1.11(c)(2).