Colo. RPC 1.11

History

Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT [1] A lawyer who has served or is currently serving as a public officer or employee is per- sonally subject to the Rules of Professional Conduct, including the prohibition against con- current conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject to stat- utes and government regulations regarding con- flict of interest. Such statutes and regulations may circumscribe the extent to which the gov- ernment agency may give consent under this Rule. See Rule 1.0(e) for the definition of in- formed consent. [2] Paragraphs (a)(1), (a)(2) and (d)(1) re- state the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest ad- dressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former gov- ernment lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or em- ployee of the government to other associated government officers or employees, although or- dinarily it will be prudent to screen such law- yers. [3] Paragraphs (a)(2) and (d)(2) apply re- gardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the ad- vantage of another client. For example, a law- yer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when au- thorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the gov- ernment, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the con- flicts of interest addressed by these paragraphs. [4] This Rule represents a balancing of in- terests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer’s professional func- tions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government in- formation about the client’s adversary obtain- able only through the lawyer’s government ser- vice. On the other hand, 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 legiti- mate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a for- mer government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in para- graph (b) are necessary to prevent the disquali- fication rule from imposing too severe a deter- rent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disquali- fication to all substantive issues on which the lawyer worked, serves a similar function. [5] When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropri- ate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is em- ployed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment [6]. [6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(k) (re- quirements for screening procedures). These paragraphs do not prohibit a lawyer from re- ceiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer’s compensation to the fee in the matter in which the lawyer is disqualified. [7] Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. [8] Paragraph (c) operates only when the lawyer in question has knowledge of the infor- mation, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer. [9] Paragraphs (a) and (d) 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 pro- hibited by law. [10] For purposes of paragraph (e) of this Rule, a ‘‘matter’’ may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed. ANNOTATION Law reviews. For article, ‘‘The New Rules of Professional Conduct: Significant Changes for In-House Counsel’’, see 36 Colo. Law. 71 (Nov. 2007). For article, ‘‘Top 10 Things In- House Lawyers Need to Know about Ethics’’, see 45 Colo. Law. 59 (July 2016). Trial court abused its discretion in dis- qualifying entire state public defender’s of- fice from representing defendant where no direct conflict of interest existed because neither individual public defender representing defen- dant was involved in prior representation of witnesses, potential conflicts that may have ex- isted with regard to other public defenders within the statewide office could not be imputed under this rule to individuals representing de- fendant, and defendant knowingly, intelligently, and voluntarily waived any conflict. People v. Shari, 204 P.3d 453 (Colo. 2009); People v. Nozolino, 2013 CO 19, 298 P.3d 915.