ABA Clarifies Rule on Information Obtained During Public Service

Attorneys with government jobs can’t represent private clients in cases where confidential information learned about an individual through the attorney’s public work could disadvantage the individual, the American Bar Association said on Wednesday.

The opinion clarified the scope of ABA Model Rule of Professional Conduct 1.11(c). The prohibition extends to both current and former government workers, including attorneys who hold part-time public jobs, the ABA said.

This is the case even though 1.11(c) was once aimed at regulating the “revolving door” of lawyers moving from government to private practice, the ABA explained.

“We do not perceive any countervailing considerations that would justify exempting current public officers and employees from a disqualification provision designed to prevent that lawyer from misusing confidential government information for a private client,” the ABA said.

The rule “applies irrespective of whether lawyers served in a representational capacity when they acquired” the information, the ABA said. It’s scope therefore includes legislators and public executives. The ABA cited a 2019 New York State Bar Association ethics committee ruling that applied the rule to a part-time town supervisor who also worked as a private attorney.

The ABA also said it interpreted “private client” to include even public “entities and officials whom the lawyer represents in private practices, if those clients are not legally entitled to employ the confidential information.”

The opinion cited Gen. Motors Corp. v. City of New York to support the clarification. In that case, the US Court of Appeals for the Second Circuit in 1974 disqualified a former Justice Department attorney from representing New York in the city’s lawsuit against GM because the lawyer had worked on a federal antitrust case against GM.

"[A]s the General Motors case illustrates, there is no less need to protect against the misuse of confidential government information on behalf of a public entity,” the ABA said.