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E. THE FORMER GOVERNMENT ATTORNEY

Asst. AG in charge of state securities div. leaves and joins private firm, is asked to represent P in suit against D for sec. law violation; sec. div. was investigating D before AAG left (1) would AAG be disq . by MRPC 1.9(a or b)? (2) if not, is she limited by MRPC 1.11? How? Why?

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E. THE FORMER GOVERNMENT ATTORNEY

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  1. Asst. AG in charge of state securities div. leaves and joins private firm, is asked to represent P in suit against D for sec. law violation; sec. div. was investigating D before AAG left • (1) would AAG be disq. by MRPC 1.9(a or b)? • (2) if not, is she limited by MRPC 1.11? How? Why? • (A) did she “personally and substantially participate” in the same matter as AAG? Cf. Sofaer, p.380, and Kovacevic, n. 1 p. 387 Problem pp. 347-8 E. THE FORMER GOVERNMENT ATTORNEY

  2. Question (a) p. 375-6 c’t’d (B) did she acquire confidentialgov’t information about D as AAG, which could be used to D’s material disadvantage? MRPC 1.11(c), with definition! (C) has agency given informed consent (confirmed in writing)? (i) skepticism about agency consent – what are the problems? Who makes the decision to consent or not? What motivations might they have?

  3. Problem pp. 347-8 c’t’d • Assume instead that P consults Day, one of ex-AAG’s partners. Can Day undertake the representation? Under what circumstances? See Kovacevic, n. 1 p. 387 (1) is AAG disqualified? If not, what problem? (2) timely screening (same as 1.10)? (3) Written notice to gov’t agency?

  4. Problem pp. 375-6 c’t’d • Suppose what Croft or Day is asked to do is represent D (Armstrong) in an action brought by agency, on a similar charge relating to another land development not yet under investigation by agency when she left (1) same matter? MRPC 1.11(d)(1) (2) “substantially related” matter w/n 1.9? If so, is Croft disqualified on that ground? (3) personal and substantial participation by Croft?

  5. Problem p. 375-6 c’t’d • Suppose the private client is not Armstrong but Peter Pike, not known to be involved before Croft left, but now sued as a co-conspirator with Armstrong (1) same matter? (2) personal and substantial participation by Croft?

  6. Further issues of GAs • MRPC 1.11(d) deals with conflicts of interest of acurrentgov’t attorney • no participation in matter in which they participated personally and substantially in prior private practice or non-governmental employment, w/o consent of the agency! • what about the prior private client? Cf. MRPC 1.9! • no negotiation for private employment w/ party or lawyer for party in a matter in which GA is personally and substantially participating

  7. Further issues of GAs • MRPC 1.12 extends most rules of 1.11 to former judges and other third-party neutrals • Most government agencies are subject to conflict-of-interest (and other government ethics) rules adopted under other law (constitution, statute, regulation) which will likely control over the lawyers’ rules

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