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Colorado Legal Ethics
1.11:100 Comparative Analysis of Colorado Rule
Colo.RPC 1.11(a) is similar to DR 9-101(B), which precluded a lawyer from accepting private employment "in a matter in which he had substantial responsibility while he was a public employee." EC 9-3 was to the same effect.
Colo.RPC 1.11(c) addresses some of the same issues as EC 8-8, which stated that "[a] lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
At least three sections of the United States Code concern conflicts of interest involving government officials. 18 U.S.C. §§ 205, 207, 208. Section 205 prohibits officers and government employees from acting as agents or attorneys in prosecuting a claim against the United States, or in any matter before any department, agency or court in which the United States is a party or has a direct and substantial interest. 18 U.S.C. § 205(1), (2). Section 208 prohibits an officer or employee of the executive branch or any independent agency from participating personally and substantially as a government employee in any particular matter in which he, his family, partner or an organization with which he is affiliated has a financial interest. 18 U.S.C. § 208(a).
Section 207 is most related to Colo.RPC 1.11 in that it concerns former government employees. Section 207 restricts a former officer, employee or elected official of the executive and legislative branches from communicating to government employees on behalf of third parties in connection with any matter in which the United States has a direct and substantial interest, in which the person participated personally and substantially while a government employee, and which involved a specific party at the time of such participation. 18 U.S.C. § 207(a)(1).
Two Colorado statutory provisions concern conflicts of interest involving government officials in financial transactions. CRS §24-18-104 prohibits government officials and employees from disclosing or using “confidential information acquired in the course of [their] official duties . . . to further substantially [their] personal financial interests.” The statute also prohibits the acceptance of gifts that would tend to improperly influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties or which are known to be given for the primary purpose of rewarding official action taken. CRS §24-18-109 prohibits a local government employee from engaging in a private substantial financial transaction with a person whom he inspects or supervises in the course of his official duties, or from performing an official act directly and substantially benefiting economically a business or undertaking in which he has a substantial financial interest or for which he is engaged as counsel or agent.
Colo.RPC 1.11 defines “matter” as including:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, 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.
The term “matter” has been interpreted to contemplate “‘a discrete and isolatable transaction or set of transactions between identifiable parties.’” CBA Formal Op. 57. Conflicts of Interest (Mar. 21, 1981, addendum 1995) (interpreting Colo.RPC 1.11’s predecessor provision, DR 9-101(B) and quoting ABA Formal Op. 342). Therefore, it is a former government lawyer’s personal knowledge of particular background facts and data rather than a general knowledge of procedures and substantive law of an agency that give rise to a conflict of interest under Colo.RPC 1.11. Id.
1.11:200 Representation of Another Client by Former Government Lawyer
Colo.RPC 1.11 prohibits former government lawyers from representing private clients in matters in which they were involved while employed by the government. The rule provides that “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 consultation.” Colo.RPC 1.11(a).
Personal and Substantial Participation
While Colo.RPC 1.11 does not define “personal and substantial participation,” the term contemplates more than a “passing upon” of a matter by a government employee. CBA Formal Op. 57, Conflicts of Interest (Mar. 21, 1981, addendum 1995) (interpreting Colo.RPC 1.11’s predecessor provision, DR 9-101(B) and quoting ABA Formal Op. 342). Rather, the official must have “become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.” Id.; Osborn v. District Court, 619 P.2d 41, 45 (Colo. 1980).
Several Colorado cases discussed the requirement of personal and substantial participation in applying the predecessor to Colo.RPC 1.11, DR 9-101(B). In Osborn, a former deputy district attorney joined a firm that was retained by the defendant in a case in which the attorney had been involved while working for the government. Osborn, 619 P.2d at 44. The Colorado Supreme Court held that the attorney had personally and substantially participated in the prosecution of the defendant while working as a deputy district attorney. Id. at 45. In reaching this conclusion, the Court considered that the attorney 1) assisted in interviewing prosecution witnesses, 2) shared an office with the lead prosecutor on the case, 3) discussed the case with the lead prosecutor, and 4) had an extended relationship with the victim. The court held that the circumstances surrounding the attorney’s involvement with the case gave rise to an appearance of impropriety and upheld the lower court’s disqualification of the law firm in representing the defendant. Id.
In Cleary v. District Court, 704 P.2d 866 (Colo. 1985), a former deputy district attorney went into private practice and represented a defendant charged with aggravated incest and sexual assault. Id. at 868. The Supreme Court held that the attorney had not had personal and substantial participation in the case while acting as deputy district attorney because he had had no personal involvement in the investigation, preparation or prosecution of the case and had had no discussions about the case. Id. at 871. The Court noted that the requirement of substantial responsibility requires actual rather than theoretical conduct and that the attorney’s opportunities to learn facts about the case while acting as deputy district attorney were not relevant in determining whether his actions violated DR 9-101(B). Id. at 870-71.
In People v. Anaya, 732 P.2d 1241 (Colo. App. 1986), rev’d on other grounds, 764 P.2d 779 (Colo. 1988), a former deputy district attorney joined a law firm that had been retained to appeal a defendant’s conviction in a case that had been prosecuted while the attorney had been working for the government. The Court of Appeals concluded that although the attorney had engaged in informal discussions with other prosecutors about the case while employed as a deputy district attorney, such actions did not rise to the level of “substantial responsibility” warranting disqualification under DR 9-101(B). Id. at 1242-43. The Court noted that the attorney had not read the defendant’s file or interviewed the defendant or any other witnesses and, that the district attorney’s office no longer had any connection to the case after a special prosecutor was appointed. Id.
Types of Government Employment
One Colorado case discussed the types of government employment covered by the disqualification rule under the Colorado Code. In Coles v. District Court, 493 P.2d 374 (1972), the Supreme Court held that there was no conflict of interest in the private representation by former public defenders of clients who previously had been represented by the attorneys in their government capacities. The Court concluded that employment in the public defender’s office was not the type of employment contemplated by EC 9-3 or DR 9-101(B). Id. at 375.
Degree of Involvement in Case While in Private Practice
In Osborn, the former government attorney had worked at length with other members of the private firm on the case in which she had been involved while employed by the government. Osborn, 619 P.2d at 46. No confidentiality walls had been erected within the firm to prevent the dispersal of privileged information to other members of the firm. Id. As a result, the court declined to address whether a confidentiality wall would have sufficiently mitigated the risk of dispersal of privileged information so as to have allowed the firm to continue its representation of the client. Id.
The Supreme Court distinguished the activities of the Osborn attorney from those of the attorney in Anaya in finding that the Anaya attorney had not substantially participated in the matter so as to require disqualification. Anaya, 732 P.2d at 1243. Unlike the Osborn attorney, the attorney in Anaya “did not accept private employment in a matter in which he had responsibility while a deputy district attorney.” Id. Rather, the Anaya attorney played no role in the defense of the client in question. Id. at 1242.
Colo.RPC 1.11 provides an exception to the rule prohibiting former government lawyers from representing private clients in matters in which they had participated personally and substantially. When 1) the disqualified lawyer is screened from any participation in the matter, 2) the disqualified lawyer is apportioned no part of the fee, and 3) written notice is promptly given to the appropriate government agency, the firm may undertake or continue representation in the matter. Colo.RPC 1.11(a). The screening provision was intended to help prevent the disqualification rule from deterring people from entering public service. Id. Moreover, a lawyer may receive a salary or partnership share established by a prior independent agreement. Colo.RPC 1.11 Comment.
No reported Colorado decisions have discussed the screening of government lawyers under Colo.RPC 1.11(d).
1.11:300 Use of Confidential Government Information
Colo.RPC 1.11 prohibits a former government employee with confidential government information about a person 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. Colo.RPC 1.11(b). The knowledge of the confidential government information must be actual knowledge, not information that merely could be imputed to the lawyer. Colo.RPC 1.11 Comment. This rule is intended to mitigate against any unfair advantage that might accrue to the private client by reason of his lawyer’s access to confidential government information about the client’s adversary. Colo.RPC 1.11 Comment.
The rule allows a firm to undertake or continue representation when an individual former government lawyer is disqualified, so long as the disqualified lawyer is screened from participation in the matter and no part of the fee is apportioned to him or her. Colo.RPC 1.11(b). However, a lawyer may receive a salary or partnership share established by a prior independent agreement. Colo.RPC 1.11 Comment.
No reported Colorado decisions have discussed the use of confidential government information under Colo.RPC 1.11(b).
Colo.RPC 1.11 defines the term “confidential government information” as “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. Colo.RPC 1.11(e).
No reported Colorado decisions have discussed the definition of confidential government information under Colo.RPC 1.11(e).
1.11:400 Government Lawyer Participation in Matters Related to Prior Representation
Colo.RPC 1.11 prohibits government lawyers from participating in matters “in which the lawyer participated personally and substantially while in private practice. . . .” Colo.RPC 1.11(c)(1). This rule does not disqualify other lawyers in the government agency in which the lawyer has become associated. Colo.RPC 1.11 Comment.
No reported Colorado decisions have discussed the participation of government lawyers in matters in which they had previously participated while in private practice.
1.11:500 Government Lawyer Negotiating for Private Employment
Colo.RPC 1.11 prohibits the negotiation by a government lawyer of “private employment with any person involved . . . in a matter in which the lawyer is participating personally and substantially. . . .” Colo.RPC 1.11(c)(2).
No reported Colorado decisions directly discuss the negotiation of private employment by a government lawyer under Colo.RPC 1.11(c)(2). However, in Coles v. District Court, 177 Colo. 210, 493 P.2d 374 (1972), the Supreme Court noted that while there was no conflict of interest in the private representation by former public defenders of clients who had previously been represented the attorneys in their government capacities, disciplinary action might be warranted if the attorneys had used the pubic defender’s office to solicit private business. Id., 493 P.2d at 375-76.