Conflicts of Interest · 12-18% of the exam
9.2.1Rule 1.11: Lawyers currently or formerly in government service
On this page
- Rule 1.11(a) — Government-to-private
Why
Rule 1.11 prevents former government lawyers from converting privileged public access into a private-practice advantage while keeping government service attractive.
Plain English
Except as law may otherwise expressly permit, a lawyer leaving government can't represent a client in connection with a matter they participated in personally and substantially without the appropriate government agency's informed consent, confirmed in writing. A current government lawyer, again except as law may otherwise expressly permit, can't participate in a matter they handled personally and substantially in private practice or nongovernmental employment without that same informed consent, confirmed in writing, and can't negotiate for private employment with a party, or a party's lawyer, in a matter the lawyer is participating in personally and substantially — except a law clerk to a judge, other adjudicative officer, or arbitrator, who may negotiate for private employment with a party or counsel in the matter after first notifying the judge or officer.
Rule
Rule 1.11(a) — Government-to-private
Except as law may otherwise expressly permit, a lawyer who formerly served as a public officer or government employee:
Remains subject to Rule 1.9(c) — no use or disclosure of the former client's information; and
Shall not otherwise represent a 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 gives informed consent, confirmed in writing.
"Matter" is defined by the rule itself, and the list is open: it includes 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 any other matter covered by the conflict-of-interest rules of the appropriate government agency (Rule 1.11(e)). General rulemaking or the enactment of legislation does not qualify — no specific party is involved.
"Personally and substantially" means actual, meaningful participation. A supervisor who signed off on files without real involvement did not personally and substantially participate in each case.
Rule 1.11(b) — Imputation and screening When a former government lawyer is personally disqualified under Rule 1.11(a), other firm lawyers are also disqualified unless all three conditions are met:
- The disqualified lawyer is timely screened from any participation;
- The disqualified lawyer receives no part of the fee; and
- Written notice is promptly given to the appropriate government agency.
Screening under Rule 1.11(b) does not require the agency's advance consent. Notice is sufficient.
Rule 1.11(c) — Confidential government information Except as law may otherwise expressly permit, a lawyer who knows they hold confidential government information (information obtained under governmental authority that the government is prohibited or privileged from disclosing, and that is not publicly available) about a person may not represent a private client adverse to that person in a matter where the information could be used to that person's material disadvantage. The imputed disqualification is cured by timely screening and no fee apportionment. Written notice to the agency is not required for this sub-rule — that absent notice requirement is the critical difference from Rule 1.11(b).
Rule 1.11(d) — Currently in government Except as law may otherwise expressly permit, a current government lawyer:
Is subject to Rules 1.7 and 1.9;
May not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives informed consent, confirmed in writing; and
Shall not negotiate for private employment with any person who is a party or counsel for a party in a matter in which the lawyer is participating personally and substantially.
Law clerk exception (Rule 1.11(d)): A law clerk serving a judge, other adjudicative officer, or arbitrator may negotiate for private employment with a party or counsel in the matter, but only after notifying the judge or officer first.
Example 1
Ex. 1
Ray spent eight years as a federal prosecutor, personally signing charging decisions on three drug-trafficking investigations. A defense firm later asked him to represent Dan, a defendant in one of those investigations. Ray had approved Dan's indictment and attended witness interviews on that specific case. Without the appropriate government agency's informed consent, confirmed in writing, he is personally disqualified. The firm may continue only by timely screening Ray, apportioning no fee, and giving written notice to the agency. Sort Ray's eight years down to the single investigation Dan was charged in — the rest of the caseload isn't in play.
The exam will merge Rule 1.11(b) with Rule 1.11(c). Under (c), the cure is screening plus no fee apportionment; notice to the agency isn't required, which is the critical difference from (b).
Government-to-private runs through Rules 1.11(a), (b), and (c). Private-to-government runs through Rule 1.11(d). Which way is this lawyer moving?
Questions · 2
Q 01ch09-e03
Question 1 of 2 · Rule 1.11(a)
Attorney served four years as a deputy director of a state environmental agency. In that post Attorney took weekly status briefings on every open enforcement file and signed enforcement orders that staff lawyers had drafted, including one order in a proceeding against a fertilizer plant. Attorney never read the underlying evidence in that proceeding, never attended an interview or hearing in it, and made no substantive decision about how it would be handled. Attorney has since entered private practice and now represents the plant's owner in civil litigation arising from the same discharges. Attorney never asked the agency for consent before taking the case. Is Attorney subject to discipline?
Keys 1 to 4 choose.