The Rules Committee of the Superior Court will consider a proposed amendment to Rule 1.11 of the Rules of Professional Conduct at its Nov. 16, meeting. Rule 1.11 is entitled “Special Conflicts of Interests for Former and Current Government Officers and Employees.”
The rule provides that no lawyer who formerly served as a public officer or employee of government shall represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the agency gives written informed consent.
The proposed amendment seeks to ban grievance counsel, disciplinary counsel, bar counsel and members of the grievance committee and panels from representing clients before the grievance committee and panels for one year after serving in their disciplinary role.
Such a proposal is a solution in search of a problem. There have been several individuals who have left the office of disciplinary counsel and who have gone into private practice representing clients before the grievance committee or panels. No litigant, committee, panel (or court in presentment matters) has disqualified, or moved to disqualify, such an attorney. And if such a motion to disqualify were to be filed, the present system for dealing with such motions provides adequate protections for all the parties concerned.
The commentary to the current Rule 1.11 cautions against an overly restrictive limitation that would prevent the orderly transfer to and from government positions. The proposed blanket prohibition conflicts with this commentary and holds such attorneys captive in their present positions. Moreover, disciplinary authorities have a vested interest in hiring or appointing the most qualified lawyers. The proposal will cause prospective employees and committee and panel members to avoid accepting such positions, especially those who are volunteers.
The proposed ban brings back the appearance of impropriety standard that the Rules Committee long ago eschewed as too subjective, vague and overly broad. Indeed, the commentary to the proposed amendment states, “[t]he reason for the amendment to this provision is to establish rules to avoid conflicts of interest and appearances of such conflicts by those engaged in the disciplinary process.”
Criminal prosecutors, public defenders, attorneys in the probate court administrator’s office, attorneys general and employees employed in the judicial branch such as clerks are exempted from Rule 1.11’s proposed ban. This raises huge equal protection problems. Is it fair that the standard for disciplinary prosecutors be higher and more stringent than the standard for criminal prosecutors? And, ironically, what about superior judges who go into private practice to work as attorneys and/or mediators? There is no similar bar that applies to former judges.
The proposal interferes with a client’s right to choose counsel of their choice for no good reason. It also imposes on former disciplinary counsel, committee or panel members an impossible burden in running a proper conflict check, because former disciplinary counsel, committee and panel members have no access to disciplinary counsel files and data base.
We are unaware of any other state that has adopted the proposed amendment to Rule 1.11. The current rule is derived from the model rules and reflects a national standard. It reflects a careful balancing of interests. There simply is no evidence that the current Rule 1.11 is problematic. There is no reason to believe that such attorneys affected by Rule 1.11 do not properly self- police themselves by identifying matters in which they have a conflict of interest. Rather, there is reason to believe that they have been acting properly because there are no reported problems and such attorneys are acutely familiar with issues involving conflicts of interest. The Connecticut Bar Association have consistently opposed the proposed amendment in one version or another. We similarly oppose the proposed amendment.
Yes, we are self- regulated profession. That does not mean we have to need to be an overly regulated profession. Rule 1.11 over regulates. The Rules Committee of the Superior Court should reject the proposed amendment to Rule 1.11 of the Rules of Professional Conduct.