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ETHICAL CONSIDERATIONS FOR TRANSITIONING GOVERNMENT LAWYERS

ETHICAL CONSIDERATIONS FOR TRANSITIONING GOVERNMENT LAWYERS. Legal & Ethics Conference Indiana Office of Inspector General & State Ethics Commission November 27, 2012. IT’S THE COURT’S PRACTICE OF LAW.

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ETHICAL CONSIDERATIONS FOR TRANSITIONING GOVERNMENT LAWYERS

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  1. ETHICAL CONSIDERATIONS FOR TRANSITIONING GOVERNMENT LAWYERS Legal & Ethics Conference Indiana Office of Inspector General & State Ethics Commission November 27, 2012

  2. IT’S THE COURT’S PRACTICE OF LAW Indiana Constitution, Article 7, Section 4 – original jurisdiction over admission and discipline of lawyers

  3. IT’S THE COURT’S PRACTICE OF LAW Employment Ethics v. Professional Licensing Ethics (officer of the court)

  4. GOV’T LAWYER MISCONDUCT: COST OF REPRESENTATION Should Cost of Lawyer Misconduct Representation of Gov’t Attorney Be Paid From Public Funds?

  5. GOV’T LAWYER MISCONDUCT: COST OF REPRESENTATION • Prohibited by statute for prosecutors and judges • IC 33-38-12-1 (judges) • IC 33-39-9-1 (prosecutors) • Wrongly accused or w/in scope of duties • IC 33-2.1-9-1: Allows AG or STAD to defend pros. or judge civil suits w/in scope of duties • IC 36-1-17-3: Allows defense counsel reimbursement for municipal/county EE. • See Clinton County v. Clements, 945 N.E.2d 721 (Ind. App. 2011) • Home rule for municipal/county to pay costs of discipline counsel???

  6. GOV’T LAWYER MISCONDUCT: COST OF REPRESENTATION • Guilty of ethical misconduct • Presumed beyond scope of employment or scope of official duties • Per se interest contrary to gov’t entity • Cost of representation = Benefit to attorney • Is it reported as W-2 benefit? • If paid in advance, does attorney reimburse gov’t entity? • See IC 36-1-17-3 regarding defense in criminal action • See State v. Evans, 810 N.E.2d 335 (Ind. 2004)

  7. CONFLICT OF INTEREST FOR GOVERNMENT LAWYERS Prof. Cond. R. 1.11

  8. Prof. Cond. R. 1.11(a) • Applies to FORMER service as public officer or government employee • Standard of Review – PERSONALLY AND SUBSTANTIALLY participated • Standard of Conduct – SHALL NOT REPRESENT a client IN CONNECTION WITH the prior matter • Informed consent from gov’t agency

  9. Prof. Cond. R. 1.11(b) • Applies to LAW FIRM of former public officer or gov’t employee • Prerequisite – subsection (a) already in play • Standard of Conduct • Law firm NOT automatically excluded. • Disqualified lawyer screened from participation and fees • Written notice to gov’t agency

  10. Prof. Cond. R. 1.11(c) • Applies to “CONFIDENTIAL GOVERNMENT INFORMATION” about a person. Phrase defined in rule • Standard of Conduct – • Acquired by lawyer while in gov’t service • SHALL NOT REPRESENT a private client whose interests are adverse to the other person’s confidential gov’t information and used to MATERIAL DISADVANTAGE of other person

  11. Prof. Cond. R. 1.11(d) • Applies to CURRENT SERVICE as public officer or government employee • Standard of Review – PERSONALLY AND SUBSTANTIALLY participated in matter while in private practice • Standard of Conduct • SHALL NOT PARTICIPATE in the matter unless • Informed consent from former client AND gov’t agency

  12. G. Michael Witte, Executive SecretaryIndiana Supreme Court Disciplinary Commission 30 S. Meridian Street, Suite 850 Indianapolis, IN 46204

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