New ethics opinion guides government lawyers

The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion on February 28 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 conflict-of-interest provisions that apply to current and former government lawyers. It specifically addresses issues raised when these lawyers know confidential government information about a third person.

The model rules define confidential government information 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 (about a third person) 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 … while still in government employ or office,” the opinion added.

The committee explained that the rule prohibits a lawyer with confidential government information about a third person from representing a “private client” whose interests are adverse to those of the third person because the confidential government information could be used to his or her disadvantage.

It also explained the representation covers any “private client,” which is described as any client represented in the lawyer’s private practice who is not legally entitled to use the confidential government information in question.
Formal Opinion 509 included several examples. It said, for example, the rule applies to lawyers in private practice who are appointed to be special prosecutors and continue to represent private clients; lawyers who represent private clients and are also part-time prosecutors or attorneys general; and 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.

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