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February 28, 2024

ABA issues ethics guidance on how disqualification rules apply to current, former public lawyers

CHICAGO, Feb. 28, 2024 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion today that provides guidance on how disqualification rules apply to both current and former government lawyers under the ABA Model Rules of Professional Conduct.

Formal Opinion 509 interprets Model Rule 1.11, which relates to the conflict-of-interest provisions applicable to currently serving and former government employees and officers who are also lawyers. Paragraph (c) of Rule 1.11 addresses the concern raised when current and former government employees or officers know of confidential government information about a person and could then use that information to the disadvantage of that person.

The model rules define confidential government information narrowly as “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.”

“(The rule) applies to a lawyer who acquired confidential government information while the lawyer was employed by or an official of the government, regardless of whether the lawyer seeking to represent the private client has now left government employ or office or maintains a private law practice (e.g., a part-time practice) while still in government employ or office,” the opinion added. “The rule applies to the representation of a ‘private client,’ which can be any client represented in the lawyer’s private practice that is not legally entitled to use the confidential government information in question.”

Formal Opinion 509 added that the rule “applies, for example, to lawyers in private practice who are appointed to be special prosecutors and continue to represent private clients, to lawyers who represent private clients and are also part-time prosecutors or attorneys general, and to lawyers who represent private clients and are also hired as counsel for a town or municipality.”

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available here.

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