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229
2. The Board of Professional Responsibility suggests that Proposed Rule 1.10 be replaced
with the substance of DR 5-105(D). The Committee opposes this recommendation as relates to
paragraph (a) because it is inconsistent with the policy judgment reflected in Paragraph (a) that
there should be no vicarious disqualification when a lawyer is disqualified from representing a
client by Rules 1.8(i) or 3.7(a). As Paragraph (a) tracks the Model Rule, which has been widely
adopted, it also promotes uniformity among state ethics rules. The Committee also opposes the
deletion of Paragraph (b) because it addresses an issue not addressed by our current Rule -- i.e., the
responsibilities of a law firm to its client when a lawyer in the firm leaves and the client discharges
the firm and retains the service of the departing lawyer. This issue will not go away because the
Rules do not address it. Finally, with respect to Paragraph (c), which codifies the holding in Formal
Ethics Opinion 89-F-118, the Committee believes that screening is of such importance that it should
be addressed in the Rules rather than in a non-binding ethics opinion.
3. On its own motion, the Committee recommends the deletion of Comments [6] and [7]
because they are not relevant to an interpretation of the rule. As will be explained below, however,
the Committee concurs with the criticism levied in Comment [7] at the use of“appearance of
impropriety” as a standard of conduct for the violation of which a lawyer can be subject to
professional discipline.
4. In light of the Court’s decision in Clinard v. Blackwood, 46 S.W. 3d 177 (Tenn. 2001),
the Committee carefully reconsidered its proposal to permit non-consensual screening to prevent
the vicarious disqualification of a firm in cases in which a lawyer moves from one firm to another
and the lawyer joining the firm would be personally disqualified because of his or her involvement
in the former firm’s representation of a client. In light of this review, the Committee respectfully,
but forcefully, urges the Court to approve screening where the personally disqualified lawyer and
the other lawyers with whom the personally disqualified lawyer practices comply with the
requirements of Paragraph (c). This reflects the judgment of the Committee that screening should
be permitted even on facts such as those of the Clinardcase, so long as the lawyers have complied
with Paragraph (c). Given the safeguards afforded the former client by Paragraph (c), -- in
particular the requirement that the former client be notified of the screening -- the Committee does
not believe that there is either an appearance of impropriety or a material risk of impropriety. To the
contrary, the implementation of a screen in compliance with Paragraph (c) evidences a strong
respect for the legitimate interests of the former client. Unlike the vicarious disqualification that
would otherwise be required, it also accommodates the very important interest of the clients of the
lawyer’s new firm in being able to be represented by their counsel of choice. The Committee
would also specifically call the Court’s attention to the requirement that the screenbe “effective,”
an objective standard to which the Court may refer as it assesses the propriety of screening in
individual cases. The Committee believes it would be preferable for the Court to focus on the
effectiveness of the screen rather than the appearance of impropriety.
Thus, the Committee has specifically and consciously chosen not to modify its proposal to
preclude screening in certain cases because of an “appearance of impropriety.”Apart from the
question of whether such a standard should be used in connection with disqualification motions, the
Committee is particularly concerned about subjecting lawyers to professional discipline for
appearances of impropriety. The ABA Model Rules explicitly rejected the use of “appearance of
impropriety” as a basis for imposing discipline on the grounds that it is question-begging and
affords lawyers insufficient guidance as to the conduct for which they can be disciplined. Even if
the Court were to reaffirm its decision in Clinard to use “appearance of impropriety” as a standard
for ruling on disqualification motions, the Committee does not believe that it should be incorporated
into the Rules of Professional Conduct that are used as the basis for imposing lawyer discipline.
If, however, the Court concludes that the Rules of Professional Conduct should preclude
the use of screening on facts similar to those of Clinard, the Committee recommends that this be
done by crafting a narrow exception that would preclude the use of a screen when the lawyer who
had switched firms had been substantially involved in an adjudicative proceeding and the lawyer’s
new firm was representing the adverse party in that proceeding. This could be done by adding a
new Paragraph (d) as follows and re-lettering existing Paragraph (d) as (e).
(d) The procedures in paragraph (c) may not be employed without the consent of
the client of the personally disqualified lawyer’s former firm if the personally
disqualified lawyer was substantially involved in the former firm’s representation of
the client in connection with a pending adjudicative proceeding in which the
lawyer’s current firm represents a client directly adverse to the former firm’s client
in the proceeding.
PROPOSED RULE 1.11
SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT
connection with a matter in which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency consents in writing after
consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or
continue representation in such a matter unless both the personally disqualified lawyer and the
lawyers who are representing the client in the matter act reasonably to:
the representation of the current client; and
confidential government information relating to the matter; and
(3) promptly implement screening procedures to effectively prevent the flow of
information about the matter between the personally disqualified lawyer and other
lawyers in the firm; and
(4) advise the government agency in writing of the circumstances which warranted the
haveutilization of the screening procedures required by this rule and the actions which
been taken to comply with this rule.
knows is confidential government information about a person the lawyer acquired when the lawyer
was a public officer or employee, may not represent a private client whose interests are adverse to
that person in a matter in which the information could be used to the material disadvantage of that
person. A firm with which that lawyer is associated may undertake or continue representation in the
matter only if both the personally disqualified lawyer and the lawyers who are representing the
client in the matter comply with the requirements set forth in paragraph (a).
shall not:
in private practice or nongovernmental employment, unless under applicable law no one is,
or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or
lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule
1.12(b) and subject to the conditions stated in Rule 1.12(b).
determination, contract, claim, controversy, investigation, charge, accusation, arrest or
other particular matter involving a specific party or parties; and
government agency.
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.
[2] A lawyer representing a government agency, whether employed or specially retained by
the government, is subject to the Rules of Professional Conduct, including the prohibition against
representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule
1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations
regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which
the government agency may give consent under this Rule.
[3] Where the successive clients are a public agency and a private client, the risk exists that
power or discretion vested in public authority might be used for the special benefit of a private
client. A lawyer should not be in a position where benefit to a private client might affect
performance of the lawyer's professional functions on behalf of public authority. Also, unfair
advantage could accrue to the private client by reason of access to confidential government
information about the client's adversary obtainable only through the lawyer's government service.
However, the rules governing lawyers presently or formerly employed by a government agency
should not be so restrictive as to inhibit transfer of employment to and from the government. The
government has a legitimate need to attract qualified lawyers as well as to maintain high ethical
standards. The provisions for screening and waiver are necessary to prevent the disqualification rule
from imposing too severe a deterrent against entering public service.
[4] When the client is an agency of one government, that 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 a city and subsequently is employed by a federal agency.
[5] Paragraph (a)(2) does not require that a lawyer give notice to the government agency at a
time when premature disclosure would injure the client; a requirement for premature disclosure
might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as
practicable in order that the government agency will have a reasonable opportunity to ascertain that
the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not
complying.
[6] Paragraph (b) operates only when the lawyer in question has knowledge of the
information, which means actual knowledge; it does not operate with respect to information that
merely could be imputed to the lawyer.
[7] Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party
and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited
by law.
[8] Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in
question has become associated.
[9] In the absence of other law to the contrary, a government official or entity, like any other
client, may waive a conflict of interest under this Rule.
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Knowingly” and “Knows” See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonably”See Rule 1.0(i)
“Substantially”See Rule 1.0(l)
The first sentence in Paragraph (a) is similar to DR 9-101(B), except that the latter used the
phrase “in which he had substantial responsibility while he was a public employee."
The second sentence in Paragraph (a) and Paragraphs (b), (c), (d) and (e) have no
counterparts in the Disciplinary Rules.
The Proposed Rule is identical to ABA Model Rule 1.11, except that the standard for
screening conform to the standard in Proposed Rule 1.10, rather than those in Model Rule 1.11(a)
or (b).
Made
Consistent with its recommendation with respect to Proposed Rule 1.10, the Board of
Professional Responsibility has asked the Court to delete that portion of Proposed Rule 1.11 that
specifies the circumstances in which screening can be used to avoid the vicarious disqualification of
the former government lawyer’s new law firm. Again, the Committee believes that screening should
be addressed in the Rule, rather than in an ethics opinion, and that the Rule should specify the
circumstances in which screening will be permitted. Also, such departure from that ABA Model
Rule, which as been widely adopted, is inconsistent with the Committee’s goal of promoting
uniformity among state ethics rules.
PROPOSED RULE 1.12
FORMER JUDGE OR ARBITRATOR
matter in which the lawyer participated personally and substantially as a judge or other adjudicative
officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after
consultation, in a writing or writings signed by all parties.
lawyer for a party in a matter in which the lawyer is participating personally and substantially as a
judge or other adjudicative officer, or arbitrator. A lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a
matter in which the clerk is participating personally and substantially, but only after the lawyer has
notified the judge, other adjudicative officer or arbitrator.
associated may knowingly undertake or continue representation in the matter unless both the
disqualified lawyer and the lawyers representing the client in the matter have complied with the
requirements set forth in Rule 1.11(a)(1), (2) and (3) and advise the appropriate tribunal in writing
of the circumstances which warranted the utilization of the screening procedures required by this
rule and the actions which have been taken to comply with this rule.
prohibited from subsequently representing that party.
[1]This Rule generally parallels Rule 1.11. The term "personally and substantially"
signifies that a judge who was a member of a multi-member court, and thereafter left judicial office
to practice law, is not prohibited from representing a client in a matter pending in the court, but in
which the former judge did not participate. So also the fact that a former judge exercised
administrative responsibility in a court does not prevent the former judge from acting as a lawyer in
a matter where the judge had previously exercised remote or incidental administrative responsibility
that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer"
includes such officials as judges pro tempore, referees, special masters, hearing officers and other
parajudicial officers, and also lawyers who serve as part-time judges.
[2]The provisions of Rule 10 of the Rules of the Supreme Court of Tennessee, concerning
the Application of the Code of Judicial Conduct, provides that a part-time judge, judge pro tempore
or retired judge recalled to active service may not "act as a lawyer in any proceeding in which the
judge has served as a judge or in any other proceeding related thereto."Although phrased
differently from this Rule, those rules correspond in meaning.
See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Knowingly”See Rule 1.0(f)
“Substantially”See Rule 1.0(l)
“Tribunal”See Rule 1.0(m)