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RE: Advisory
Opinion 2002-01
DATE: June 26, 2002
SUBJECT: FORMER GOVERNMENT ATTORNEY APPEARING AS
EXPERT WITNESS
Facts: During the mid
1980s, the attorney was employed by a federal administrative
agency. He served in a number of senior administrative
positions, including enforcement counsel. In those
positions he reviewed major enforcement actions, agency
policies, proposed regulations and documents. Since
that time he has been engaged in the private practice
of law.
In
2002 the agency commenced a lawsuit against corporate
defendants in federal court in another jurisdiction.
The attorney has now been asked to be an expert witness
on behalf of the corporate defendants. His testimony
will include statements as to the enforcement policies
followed during his time with the agency, general
comments on enforcement strategy, and discussions
on particular enforcement actions and refusals to
act. Much of this testimony will be based on his six
years with the agency, and his discussions at that
time with others in the agency.
Discussion:
Arkansas Rule of Professional Conduct 1.11(a) governs
lawyers who leave the public sector and enter private
practice. Limitations are placed on their ability
to represent private clients in matters in which they
participated personally and substantially as a public
officer or employee. Arguably that rule is not applicable
here because the attorney will not be an attorney
of record, but merely an expert witness. But the policy
of that rule and the intent behind it suggests that
the same analysis should apply.
Several
issues must be addressed:
1)Is the lawyer/expert
witness participating in the same "matter"
that he particpated in as a public officer 15 years
earlier? Rule 1.11(d) defines matter as:
"(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."
The
lawsuit commenced in 2002 was not the subject of an
agency investigation pending in 1987. Nor does the
subject matter of the lawsuit appear to have been
a claim or controversy or accusation during the time
the lawyer/expert witness was with the agency.
2)The
rule requires disqualification when a former government
officer or employee participated "personally
and substantially" in the matter. In the absence
of the same matter being present in the agency 15
years ago and in the current litigation, an examination
of whether the attorney personally and substantially
participated is not relevant.
3)Arkansas
Rule of Professional Conduct 1.11(b) bars a former
government attorney from using "confidential
government information" to the material disadvantage
of the subject of that information. Again, that rule
on its face may not be at all applicable. The attorney
is not representing a private client; he is merely
a witness. He is not using the information against
a third person, but on behalf of a person and against
the government. The general intent behind the rule
however, requires, some consideration.
Rule 1.11(e)
defines the term:
"(e)
As used in this rule, the term "confidential
government information" means information which
has been obtained under governmental authority and
which, at the time this rule is applied, the government
is prohibited by law from disclosing to the public
or has a legal privilege not to disclose, and which
is not otherwise available to the public."
The
general statements that the attorney intends to make
do not fall within these parameters. It is not information
obtained under governmental authority.
4)Arkansas
Rule of Professional Conduct 1.6 sets forth a
broader sense of confidentiality; broader in that
it includes all attorneys, all information received
by the attorneys regardless of the source, all information
relating to the representation even if not privileged,
and all information regardless of the passage of time
or the death of the client. The comment to the Rule
is clear: "The confidentiality rule applies not
merely to matters communicated in confidence by the
client but also to all information relating to the
representation, whatever its source."
Indeed
the language is equally clear with regard to government
lawyers: "The requirement of maintaining confidentiality
of information relating to representation applies
to government lawyers who may disagree with the policy
goals that their representation is designed to advance."
Our
conclusion is that the intent behind these rules is
not to cover information that is general in nature,
not directed toward a particular client or matter,
and not recent in its derivation. An element of practicality
must be applied in such a situation. For example,
if the attorney were to write a book describing his
experiences, his conversations and his insights acquired
at the agency 15 years ago, it is inconceivable that
the Arkansas Supreme court Committee on Professional
Conduct would bring disciplinary charges.
5)Finally,
we note that the Arkansas Supreme Court, unlike other
jurisdictions, has continued to apply the rubric of
the "appearance of impropriety". In First
American Carriers, Inc. v. Kroger Co., 302 Ark. 86,
787 S.W.2d 669 (1990) and Burnette v. Morgan, 303
Ark. 150, 156, 794 S.W.2d 145, 148 (1990), the Arkansas
Supreme Court applied that method of analysis in relation
to the former client issue: "the principle is
a rock in the foundation upon which [are] built the
rules guiding lawyers in their moral and ethical conduct.
This is a factor that should be considered in any
instance where a violation of a rule of professional
conduct is at issue." The Court has applied that
language in instances involving lawyers opposing former
clients in violation of Rule 1.9.
Admittedly
the passage of time is not a barrier. The court has
disqualified an attorney who was, 17 years earlier,
in a firm that represented the opposing party. Norman
v. Norman, 333 Ark. 644, 970 S.W. 2d 279 (1998). However,
the Court has not used that language in other situations
and we conclude that given the combination of factors
here, it does not appear improper for the attorney
to now give expert testimony of this type.
Conclusion:
For the reasons stated, the attorney may appear as
an expert witness on the general enforcement strategies
and policies of the agency during his tenure 15 years
earlier.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of the attorneys
licensed to practice in the State of Arkansas, and
reliance thereon is voluntary and relieves any Association
member from liability for the content hereof. This
opinion is intended to be the Association's best interpretation
of the Model Rules of Professional Conduct as promulgated
by the Supreme Court of Arkansas as that code applies
to the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By: ____________________________
Howard W. Brill
Reporter for Professional
Ethics
Committee
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