Revolving door provisions typically do two things: prohibit attorneys who go from the public sector into the private sector from appearing before the governmental body for which they worked for a set amount of time (usually one or two years); and impose a lifetime ban on appearances before a governmental agency on any specific matter worked on in the public sector. The lifetime ban, depending upon its interpretation, could prove problematic for law firms who serve as municipal attorneys on retainer. For example, if an attorney drafted a local subdivision law or ordinance fifteen years ago, and no longer represents the municipality, is the lawyer or her firm prohibited from ever representing an applicant for a subdivision approval? Unless the population represented by the local government is substantial, the majority of municipalities simply employ legal counsel on retainer from local law firms (as opposed to full-time salaried employees). The political nature of the job of municipal attorney means that from election year to election year, the appointment of the local government attorney may also be up for grabs. Should municipal attorneys be prohibited from ever doing work in the jurisdiction which pertains to land-use laws that may have been drafted or written by them or their firms in the past? If this is so, it may have a chilling effect on the number of lawyers interested in municipal work.
The Code of Professional Responsibility in DR 5-108 specifically addresses conflicts of interest with respect to former clients. The Rule provides that, absent express consent upon full disclosure to a former client, a lawyer shall not, "1. Thereafter represent another person in the same or a substantially related mater in which that person's interests are materially adverse to the interests of the former client. 2. Use any confidences or secrets of the former client...." Recently, a New York appellate court, relying on DR 5-108, held that where a law firm had been retained by a municipality for approximately twenty-five years, first as counsel to the planning board and later as counsel to the village, and during that time it had been involved in the site plan law which was developed and in effect, it was precluded from representing a client before the planning board for a site plan review six years later. [FN25] The court found that given the long-standing prior representation of the village in matters which directly related to zoning and site plan review (including the fact that the law firm had drafted a recodification of the code), this was a, "... substantial related matter in which ... [petitioner's] ... interests are materially adverse to the interests of the former client."
This case has a significant impact on practitioners who retain public sector clients, especially when their retainer agreement may be terminated at will and their prior work and advice may preclude any later representation in an area where they have built a practice concentration
In reaching a somewhat different conclusion, a Virginia court held that a law firm would not be disqualified from representing a client for a rezoning before the county where the firm employs a former county attorney who was involved in land-use matters during her employ as a county attorney. [FN26] The Court determined that there was no conflict with DR 5-105 [FN27] since the citizen taxpayers who brought the suit were not clients of the former county attorney, and her former client, the county, did not challenge the representation. Furthermore, the Court found that DR 9-101 which provides that, "a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee," did not apply in this case since there was no evidence that the former county attorney was involved in rulemaking or policymaking. [FN28]
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