1994-14

QUESTION:

“This is to request an advisory opinion on an issue
of professional ethics, stated as follows:

May a lawyer represent a private client
in connection with a case where the lawyer
had participated personally and substantially
as a public officer or employee, in another
case which involved some identical legal
issues, but had different parties and different
subject matter? If so, does the attorney’s
disqualification work to effect a
disqualification of his firm as well?

This question is submitted at the request of the
court
before which a case is pending, raising the issue involved.
The dispute arises out of the fact that I formerly served
as
commissioner of a state agency. Subsequent to my serving in
this capacity, I filed suit on behalf of three named
plaintiffs purporting to represent a class of plaintiffs
who
have been wronged by the same state agency. The
agency has objected to my representing these plaintiffs and
has moved to disqualify me and my law firm from such
representation. The circuit judge before whom the case is
pending, has requested that the parties obtain an advisory
opinion from the office of the general counsel.

During the time that I served as commissioner of
the state agency, there was a case involving me and the
agency which was resolved in the courts. I participated
personally and substantially in that case. I was the chief
executive officer of the state agency, and took a
particular
interest in legal matters. Since the case involved a
significant sum of money which otherwise would have gone to
the Alabama Special Educational Trust Fund, I was directly
involved in the action. This case was concluded adversely
to the state agency when the Supreme Court of Alabama
denied
a petition for writ of certiorari.

More than twenty (20) months after leaving the state
agency, and more than one (1) year after the case discussed
above was concluded, I filed an action in the Circuit Court
of Any County. This case involves a purported class action
which had some legal issues identical to those involved in
the case discussed above. The facts are such that the
decision in that case may be controlling in the present
case. The present case involves different parties from the
former, and the subject matter of the cases is different.
In the former case, the subject matter was retirement
benefits paid to federal retirees. In the present case,
the
subject matter is wages of federal law enforcement
officers.
The parties are different, the subject matter of the
lawsuits is different, and only some legal issues are
identical. Further, the parties in the present case did
not make their claim for refund of taxes until after I had
long since departed my position with the state agency.

Based on these facts, the state agency seeks to
disqualify me and my firm from representing the plaintiffs
in the present case. The basis for this is Rule 1.11(a)
of the Alabama Rules of Professional Conduct dealing with
‘Successive Government and Private Employment,’ which
provides as follows:

… a lawyer shall not represent a private
client in connection with a matter in which
the lawyer participated personally and
substantially as a public officer or employee,
unless the appropriate government agency
consents after consultation.

The word “matter” is defined in Rule 1.11(d)(1) to
include:

[A]ny judicial or other proceeding,
application, request for a ruling
or other determination, contract,
claim, controversy, investigation,
charge, accusation, arrest, or other
particular matter involving a specific
party or parties;…

From this language, the state agency seeks to
disqualify the attorney for the plaintiffs and the
attorney’s firm.

Plaintiffs’ attorney believes that disqualification is
not justified by the language of the Rule, nor do the facts
indicate any violation of the Rule. This situation does not
violate the Rule for the following reasons:

(1) The emphasized language in the definition of
matter makes it clear that a matter involves a specific
party or parties. The parties in these two cases are
different. Thus, the present case is not the same matter as
the former, nor is it any matter in which I participated
personally or substantially while I served in an official
capacity. The class in the former case consisted of ‘all
recipients of military or other federal non-civil service
retirement or survivor benefits who have paid, or are
subject to payment of, state income tax on such benefits.’
In contrast, the proposed class described in the complaint
in the present case consists of ‘all individuals employed
by
the United States of America or any of its agencies, as law
enforcement officers, who earned wages in Alabama for such
employment…’ (emphasis supplied). Since the parties are
different, the two cases are not the same matter, and my
participation in the earlier case as commissioner of the
state agency does not prevent my participation in the
recent
case.

(2) The present case was filed in the Circuit
Court
of Any County more than 20 months after I left the position
of commissioner of the state agency. The plaintiffs had
never discussed this matter with me, and never considered
any remedial actions, until more than a year after I left
my
position as commissioner of the state agency. Therefore,
the
recent case is not a matter in which I participated as a
public officer. I could not have done so, since the matter
did not arise until I was no longer a public officer.

(3) The subject matter of the cases is different.
The former case involved non-civil service retirement or
survivor benefits, while the present case involves wages of
law enforcement officers, both civil service and non-civil
service.

Were the present case the same matter as the former,
the former case would have made this case unnecessary. The
former case did not resolve the questions sought to be
resolved by plaintiffs. Certainly, the former case may be a
precedent for the court to consider in the present case,
and, in fact, plaintiffs believe it is controlling.
However,
it is by no stretch of the imagination the same matter
within the meaning of Rule 1.11. If the state agency can
use
this Rule in the manner it seeks, it would effectively
prevent me forever from representing clients in cases where
there was legal precedent established while I was
commissioner.

Even if I should be prevented from representing the
plaintiffs, my firm is not barred by the Rule from pursing
the case for the plaintiffs. Rule 1.11(a) specifically
provides that another attorney in the firm may participate
if the former public official ‘is screened from any
participation in the matter.’

This is to request an advisory opinion, therefore,
on the question previously stated. Your prompt response to
this inquiry would be most sincerely appreciated. The case
pending before the circuit court is being held in abeyance
until your opinion can be received.”

ANSWER:

It is the opinion of the Disciplinary Commission that
your participation in the former case while you held
the position of commissioner of the state agency does not
preclude your representation of the class in the present
case.

DISCUSSION:

Rule 1.11(a) of the Rules of Professional Conduct
prohibits a former government lawyer from representing
a private client in a matter that he or she participated
in personally and substantially while a public officer
or employee. Since you participated personally and
substantially in the former case, the question then
becomes whether the two cases involve the same matter as
defined in Rule 1.11(d).

Rule 1.11(d) provides as follows:

“Rule 1.11 Successive Government and
Private Employment

* * *

(d) As used in this rule, the term ‘matter’
includes:

(1) Any judicial or other proceeding,
application, request for a ruling
or other determination, contract,
claim, controversy, investigation,
charge, accusation, arrest or other
particular matter involving a
specific party or parties; and

(2) Any other matter covered by the
conflict of interest rules of the
appropriate government agency.”

According to Professors Hazard and Hodes in The Law
of Lawyering, 368 (2d ed. 1990), the definition of matter
as contained in Rule 1.11(d) “codifies the essentials”
of a discussion of the term matter contained in ABA Formal
Opinion 342 (1975). That discussion is as follows:

“[T]he terms seems to contemplate a discrete
and isolatable transaction or set of
transactions between identifiable parties.
Perhaps the scope of the term ‘matter’ may
be indicated by examples. The same lawsuit
or litigation is the same matter. By contrast,
work as a government employee in drafting,
enforcing or interpreting government or
agency procedures, regulations, or laws, or
in briefing abstract principles of law, does
not disqualify the lawyer from subsequent
private employment involving the same
regulations, procedures, or points of law;
the same ‘matter’ is not involved because
there is lacking the discrete, identifiable
transactions or conduct involving a
particular situation and specific parties.”

In Securities Investor Protection Corp. v. Vigman,
587 F.Supp. 1358 (C.D. Cal. 1984), the court found that
a discrete series of transactions involving a specific
situation and specific parties in a ten-year-old civil
action was ‘part and parcel’ of a subsequent, broader suit
alleging wide-spread securities fraud and disqualified the
former regional administrator for the Securities Exchange
Commission from representing the plaintiff in the later
suit.

Applying the above to the question presented here, it
is the Commission’s view that the cases in question do not
involve the same matter. While there is likelihood that the
same points of law will be involved in the two cases this,
without some other connection, does not constitute the same
matter. The parties are different, the subject matter is
different and in no way could one be considered “part and
parcel” of the other. As pointed out in ABA Opinion 342,
there is no “discrete identifiable transactions or conduct
involving a particular situation and specific parties.”

RWN/vf
11/15/94

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