Md. R. Att'y 19-301.11

As amended through November 13, 2024

Rule 19-301.11 - Special Conflict of Interest for Former and Current Government Officers and Employees (1.11)

(a) Except as law may otherwise expressly permit, an attorney who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 19-301.9(c) (1.9); and

(2) shall not otherwise represent a client in connection with a matter in which the attorney participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

(b) When an attorney is disqualified from representation under section (a) of this Rule, no attorney in a firm with which that attorney is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified attorney is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with this Rule.

(c) Except as law may otherwise expressly permit, an attorney having information that the attorney knows is confidential government information about a person acquired when the attorney 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 the material disadvantage of that person. As used in this Rule, the term "confidential government information means information that 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. A firm with which that attorney is associated may undertake or continue representation in the matter only if the disqualified attorney is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

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

(1) is subject to Rules 19-301.7 (1.7) and 19-301.9 (1.9); and

(2) shall not:

(A) participate in a matter in which the attorney participated personally and substantially while in private practice or non-governmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or

(B) negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the attorney is participating personally and substantially, except that an attorney serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 19-301.12(b) (1.12) and subject to the conditions stated in Rule 19-301.12(b) (1.12).

(e) As used in this Rule, the term "matter includes:

(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.

Md. R. Att'y 19-301.11

Adopted June 6, 2016, eff. 7/1/2016; amended April 21, 2023, eff. 7/1/2023.

COMMENT

[1] An attorney who has served or is currently serving as a public officer or employee is personally subject to the Maryland Attorneys' Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 19-301.7 (1.7). In addition, such an attorney may be subject to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 19-301.0(g) (1.0) for the definition of informed consent.

[2] Subsections (a)(1), (a)(2) and (d)(1) of this Rule restate the obligations of an individual attorney who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 19-301.10 (1.10) is not applicable to the conflicts of interest addressed by this Rule. Rather, section (b) of this Rule sets forth a special imputation rule for former government attorneys that provides for screening and notice. Because of the special problems raised by imputation within a government agency, section (d) of this Rule does not impute the conflicts of an attorney 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 attorneys.

[3] Subsections (a)(2) and (d)(2) of this Rule apply regardless of whether an attorney is adverse to a former client and are thus designed not only to protect the former client, but also to prevent an attorney from exploiting public office for the advantage of another client. For example, an attorney who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the attorney has left government service, except when authorized to do so by the government agency under section (a) of this Rule. Similarly, an attorney who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by section (d). As with subsections (a)(1) and (d)(1) of this Rule, Rule 19-301.10 (1.10) is not applicable to the conflicts of interest addressed by these subsections.

[4] This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. An attorney should not be in a position where benefit to the other client might affect performance of the attorney's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the attorney's government service. On the other hand, the rules governing attorneys presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified attorneys as well as to maintain high ethical standards. Thus a former government attorney is disqualified only from particular matters in which the attorney participated personally and substantially. The provisions for screening and waiver in section (b) of this Rule are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in subsections (a)(2) and (d)(2) of this Rule to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the attorney worked, serves a similar function.

[5] When an attorney 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 an attorney is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by section (d) of this Rule, the latter agency is not required to screen the attorney as section (b) of this Rule requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 19-301.13 (1.13) Comment [8].

[6] Sections (b) and (c) of this Rule contemplate a screening arrangement. See Rule 19-301.0(n) (1.0) (requirements for screening procedures). These sections do not prohibit an attorney from receiving a salary or partnership share established by prior independent agreement, but that attorney may not receive compensation directly relating the attorney's compensation to the fee in the matter in which the attorney is disqualified.

[7] Notice, including a description of the screened attorney's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[8] Section (c) of this Rule operates only when the attorney in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the attorney.

[9] Sections (a) and (d) of this Rule do not prohibit an attorney from jointly representing a private party and a government agency when doing so is permitted by Rule 19-301.7 (1.7) and is not otherwise prohibited by law.

[10] For purposes of section (e) of this Rule, a "matter may continue in another form. In determining whether two particular matters are the same, the attorney should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

Model Rules Comparison: Rule 19-301.11 (1.11) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct.