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Harry B. Sondheim Re: Proposed changes to Model Rule 1.11 (Draft No. 3, 4/21/99) - Center for Professional Responsibility





July 20, 1999

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

Re: Proposed changes to Model Rule 1.11 (Draft No. 3, 4/21/99)

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.

We offer the following comments on the above-referenced draft.

1. Requiring that informed consent be in writing. The Commission has proposed that Rule 1.7 be modified to require informed written consent to conflicts covered by that rule. Yet Rule 1.11 -- like proposed Rule 1.9 -- does not similarly require informed written consent. We believe that informed consent in writing should be required in all of these situations and see no justification for distinguishing Rule 1.7 from Rules 1.9 and 1.11 for this purpose. California's experience has demonstrated that requiring a writing protects clients and lawyers, assists enforcement and is not unduly burdensome or impractical.

2. Specifying who has authority to act on behalf of "the appropriate government agency." As in the current rule, subsection (a) of proposed Rule 1.11 provides that a former government lawyer may represent a client in a matter in which the lawyer was personally involved as a government employee if "the appropriate government agency gives its informed consent to the representation." The rule, however, does not specify who within a government agency has the authority to act on its behalf. To provide guidance to those who might seek a government agency's consent, and to the agency itself, we suggest that the Commission include a comment that describes the type or kinds of people within the agency who can provide consent on behalf of the agency. The following is an example: "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 (b). Subsection (a) of proposed Rule 1.11 requires screening of the disqualified lawyer and notice "to the appropriate government agency to enable it to ascertain compliance with" Rule 1.11. Subsection (b), however, requires only screening. We 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 subsection (b) also require notice.

4. Scope of future prohibition. We found the last sentence of comment [3] to be confusing. That sentence draws a distinction between "work" that the lawyer did for the government and "issues on which the lawyer did work for the government." We think we know what the drafters mean by that sentence, but it is vague and needs clarification. We offer the following language for the Commission's consideration, which we would add at the end of comment [3]:

For example, a lawyer may represent a private party in a challenge to generally applicable agency rules, even though she was herself personally involved in the development and implementation of those rules, subject only to the constraints imposed by Rule 1.6 on her use and disclosure of non-public information relating to her prior representation of the government.

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.



Harry B. Sondheim,

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

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