Texas Legal Ethics

1.11   Rule 1.11 Successive Government and Private Employment

1.11:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 1.10
• Background References: ABA Model Rule 1.11, Other Jurisdictions
• Commentary:

1.11:101      Model Rule Comparison

Texas Rule 1.10, "Successive Government and Private Employment," is patterned after Model Rule 1.11, which bears the same name. Both rules address conflict of interest and confidentiality issues that can arise when a lawyer enters private law practice after a period of service for the government.

Paragraph (a) of Model Rule 1.11 generally provides that, except as law may otherwise expressly permit, a lawyer shall not represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. Paragraph (a) of Texas Rule 1.10 contains a generally similar prohibition. Model Rule 1.11(a) further generally provides that other lawyers in a firm that the former government lawyer joins are not subject to the prohibition, so long as the lawyer formerly in government service is properly screened from the matter. Paragraph (b) of Texas Rule 1.10 has a similar provision.

Paragraph (b) of the Model Rule sets forth a similar framework if the lawyer now in private practice obtained "confidential government information" about a person when the lawyer was in public service, and the lawyer is presented with the opportunity to represent a private client in a matter adverse to that person in which the information could be used to the material disadvantage of that person. The Model Rule provides that, except as law may other expressly permit, the lawyer formerly in government service is personally disqualified from representing a private client in the matter, but others in that lawyer's firm will not be subject to disqualification if the lawyer formerly in government service is screened from the matter. Paragraphs (c) and (d) of Texas Rule 1.10 set forth a generally similar framework.

In Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990), the Texas Supreme Court concluded that evidence in the case did not establish either that the former chairperson of the Industrial Accident Board personally and substantially participated in the matter in question, or that she obtained relevant confidential information. The court reasoned that, for purposes of the Texas provision, prior substantial participation cannot be imputed based on title of office or existence of statutory authority, and the "confidential government information" aspect of the Texas Rule calls for actual as opposed to imputed knowledge. For a case involving a former district attorney, see Marquez v. State Farm Lloyd's of Dallas, 838 S.W.2d 828 (Tex. App.—San Antonio 1992, no writ).

Paragraph (e) of Texas Rule 1.10 is essentially identical to Model Rule 1.11(c).

Texas Rule 1.10(f) and Model Rule 1.11(d) provide generally similar definitions of "matter" for purposes of the respective rules, but the Texas definition adds the explicit provision that "matter" does not "include regulation-making or rule-making proceedings . . .." Texas Rule 1.10(g) and Model Rule 1.11(e) provide similar definitions of "confidential government information."

Texas Rule 1.10 adds a definition of "private client" in paragraph (h), and a provision in paragraph (i) addressing lawyers who go from one "body politic" to another (rather than into private practice).

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."

1.11:110      Federal Conflict of Interest Statutes and Regulations

Consider, for instance, 18 U.S.C. §§ 203 and 207 and any related regulations.

1.11:120      Texas Conflict of Interest Statutes and Regulations

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

1.11:130      Definition of "Matter"

Paragraph (f) of Texas Rule 1.10 provides in full as follows:

As used in this rule, the term "matter" does not include regulation-making or rule-making proceedings or assignments, but includes:

(1)   Any adjudicatory proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other similar, particular transaction involving a specific party or parties; and

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

Texas Rules Rule 1.10(f).

1.11:200   Representation of Another Client by Former Government Lawyer

• Primary Texas References: TX Rule 1.10
• Background References: ABA Model Rule 1.11(a), Other Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram § 8.10

For a general discussion of this subject, see section 1.11:101.

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

For a general discussion of this subject, see section 1.11:101.

1.11:300   Use of Confidential Government Information

• Primary Texas References: TX Rule 1.10
• Background References: ABA Model Rule 1.11(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 214, Wolfram § 8.10

For a general discussion of this subject, see section 1.11:101.

1.11:310      Definition of "Confidential Government Information"

As to this subject, paragraph (g) of Texas Rule 1.10 provides in full:

As used in this Rule, the term "confidential government information" means information which has been obtained under governmental authority and which, 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 which is not otherwise available to the public.

Texas Rules Rule 1.10(g).

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

• Primary Texas References: TX Rule 1.10(c) & (g)
• Background References: ABA Model Rule 1.11(c), Other Jurisdictions
• Commentary: ABA/BNA § , ALI-LGL § 213, 214, Wolfram § 8.9.4

Paragraph (e)(1) of Texas Rule 1.10 provides that, except "as law may otherwise expressly permit," a lawyer serving as a public officer or employee shall not participate in a matter involving a private client when the lawyer had represented that client in the same matter while in private practice or nongovernmental employment," unless "no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter" under applicable law. Texas Rules Rule 1.10(e)(1). Paragraphs (a) through (d) of that rule address lawyers going from public service into private practice. See Texas Rules Rule 1.10(a)-(d).

1.11:500   Government Lawyer Negotiating for Private Employment

• Primary Texas References: TX Rule 1.10(e)(2)
• Background References: ABA Model Rule 1.11(c)(2), Other Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL §§ 156, 214, Wolfram § 9.10

Under Texas Rule 1.10(e)(2), "[e]xcept as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not . . . [n]egotiate for private employment with any person who is involved as a party or attorney for a party in which the lawyer is participating personally and substantially." Texas Rules Rule 1.10(e)(2).