Informal Opinion Number: 2021-06
Adoption Date: 2021
Special Conflicts of Interest for Former and Current Government Officers and Employees
Question: A state agency, Governmental Entity, contracted with Private Attorney to represent the governmental entity in proceedings involving termination of parental rights. Private Attorney is not considered an employee of Governmental Entity. Once Private Attorney completes the termination of parental rights proceeding, may Private Attorney then represent Foster Parents who are seeking to adopt the minor child?
Answer: Since Private Attorney represents Governmental Entity by contract, and not as a current or former government lawyer, Rule 4-1.11 does not apply to future conduct of Private Attorney. Instead, Private Attorney must determine if a former client conflict of interest exists based on the prior representation of Governmental Entity. Rule 4-1.9(a) prohibits Private Attorney from representing Foster Parents in the same or substantially related matter in which Foster Parents’ interests are materially adverse to those of Governmental Entity unless Governmental Entity gives informed consent, confirmed in writing. Matters are substantially related per Rule 4-1.9 “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Comment . It appears that there is such a substantial risk as to confidential factual information gained by Private Attorney while representing Governmental Entity that may materially advance Foster Parents’ interests in the adoption. If that is the case, depending on the underlying facts, per Rule 4-1.9(a), Private Attorney may not represent Foster Parents in the adoption proceeding absent informed consent, confirmed in writing, from Governmental Entity. See also Informal Opinion 20040059 (addressing governmental entity consent to conflict of interest). “Informed consent” is defined in Rule 4-1.0(e), and guidance is provided in Comments  – . “Confirmed in writing” is defined in Rule 4-1.0(b), and guidance is provided in Comment . If Governmental Entity provides informed consent, confirmed in writing, to the representation of Foster Parents by Private Attorney, Rule 4-1.9(c) prohibits Private Attorney from using or revealing information relating to any prior representation except as permitted or required by the Rules.
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