Robert L. Kehr Re: Proposed changes to Model Rule 1.11 (Public Comment Draft, dated April 18, 2000)- Center for Professional Responsibility

STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT

June 21, 2000

American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 1.11 (Public Comment Draft, dated April 18, 2000)

Dear Commissioners:

I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC), whose activities are funded in part by the Foundation of the State Bar of California. COPRAC offers the following comments on the above-referenced draft rule:

1. Requiring that informed consent be in writing. In our July 20, 1999 letter to you regarding Rule 1.11 (Draft No. 3, 4/21/1999), we pointed out that the Commission had proposed that Rule 1.7 be modified to require informed written consent to conflicts covered by that rule, but that neither Rule 1.11 , nor the then-current draft of proposed Rule 1.9 required informed written consent. We stated our belief that informed consent in writing should be required in all of these situations and saw no justification for distinguishing Rule 1.7 from Rules 1.9 and 1.11 for this purpose. The Commission has now revised Rule 1.9 to require that the informed consent be "confirmed in writing" as is consent under Rule 1.7. Rule 1.11, however, still does not require written consent. We continue to see no reason to distinguish Rule 1.11 from Rules 1.7 and 1.9. California's experience has demonstrated that requiring a writing protects clients and lawyers, assists enforcement and is not unduly burdensome or impractical. We urge the Commission to revise Rule 1.11 to require written consent, thus bringing it in line with the other conflicts rules and California.

2. Specifying who has authority to act on behalf of "the appropriate government agency." As we noted in our July 20, 1999 letter, although subsection (a) of proposed Rule 1.11 provides that a former government lawyer may not represent a client in a matter in which the lawyer was personally involved as a government employee "unless the appropriate government agency gives its informed consent to the representation," it did not specify who within a government agency has the authority to act on its behalf. The Commission has still not clarified who within the agency has such authority. We continue to believe that the Commission should include a comment that describes the type or kinds of people within the agency who can provide consent on behalf of the agency. This will provide guidance both to those who might seek a government agency's consent, and to the agency itself. We again offer the following as an example of how such a comment might be worded: "Under subsection (a), the person who can give informed consent for a government agency would usually be the head of the agency in which the former government official or the employee worked or a designee of the head of that agency."

3. Requiring both notice and screening under subsection (c). We noted in our July 20, 1999 letter that subsection (a) of then-proposed Rule 1.11 (addressing situations where the migrating government lawyer had "participated personally and substantially" in the matter) required screening of the disqualified lawyer and notice "to the appropriate government agency to enable it to ascertain compliance with" Rule 1.11, but that subsection (b) (concerning a migrating lawyer who has "confidential government information") required only screening. In the current draft, former subsection (b) has become subsection (c), but still does not require notice to the appropriate government agency. We continue to see no justification for requiring notice in one situation, but not in the other. If anything, the government agency should be more concerned when one of its former employees is privy to confidential information about a person and is employed at a firm representing a client with interests adverse to that person. We therefore recommend that current subsection (c) also require notice.

4. Scope of future prohibition. In our July 20, 1999 letter, we observed that the last sentence of comment [3] to that draft, which drew a distinction between "work" that the lawyer did for the government and "issues on which the lawyer did work for the government" without further elaboration, was confusing. We note that the last sentence of comment [3] (now comment [4]) has been redrafted and addresses the concerns we raised. We thank the Commission for its clarification.

5. Comment [5]. We find proposed Comment [5], which modifies present Comment [4], to be confusing. Proposed Comment [5] states:

[5] When the client is an agency of 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 should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do.

The first sentence suggests that for purposes of analysis under this rule, "it may be appropriate" to treat the second government agency as a "client," presumably a "client" as that term is intended in paragraph (a). The second sentence, however, then effectively states that even if you do treat the second agency as a "client," paragraph (d) controls, and screening is not required for the lawyer who has migrated from one government agency to another. Although the comment refers to "purposes of this Rule," it strikes us that the main purpose of the rule is to identify those situations when screening should be implemented to protect confidential information learned by a lawyer while in government service. For what other purposes should the second government agency be treated as a "client" rather than as a government agency? We believe that if it is "appropriate" to treat the second government agency as a "client" under paragraph (a), then paragraphs (b) and (c) should control, just as they would for any non-government "client." If the Commission believes that paragraph (d) should apply to the government agency to second government agency situation, then there is no reason for the reference to "client" in the first sentence of Comment [5]. We recommend that Comment [5] be changed as read:

[5] When a lawyer has been employed by one government agency and then moves to a second government agency, the conflict of interest is governed by paragraph (d), and the latter agency is not required to screen the lawyer.

This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.

Sincerely,

Robert L. Kehr,
Chair

cc: Board of Governors
COPRAC Members
Randall Difuntorum, Esq. COPRAC Staff Counsel

COPRAC - ABA2000 - Rule 1.11 Letter - Final (062100).wpd

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