RULE 1.11 SUCCESSIVE GOVERNMENT
AND PRIVATE EMPLOYMENT
(a) Except as law may otherwise expressly permit, a lawyer
shall not represent a private 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 consents after consultation. No
lawyer in a firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless who has formerly served as a public officer
or employee of
the government:
(1)The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefromis subject to Rule 1.9(c); and
(2)Written notice is promptly given to the appropriate government agencyshall 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 consents to the representation.
(b) Except as law may otherwise expressly permit, a lawyer
having information that the lawyer
knows is confidential government information about a person acquired when the lawyer was a
public
officer or employee may not represent a private client whose interests are adverse to that person
in
a matter in which the information could be used to the material disadvantage of that person. A
firm
with which that lawyer is associated may undertake or continue representation in the matter only
if
the disqualified lawyer is screened from any participation in the matter and is apportioned no
part
of the fee therefrom When a lawyer is disqualified from representation under
paragraph (a), no
lawyer in a firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer
serving as a public officer or employee
shall not negotiate for private employment with any person who is involved as a party or as
attorney
for a party in a matter in which the lawyer is participating personally and substantially except as
provided by Rule 1.12(b) a lawyer having information that the lawyer knows is
confidential
government information about a person acquired when the lawyer was a public officer or
employee
may not represent a private client whose interests are adverse to that person in a matter in which
the
information could be used to the material disadvantage of that person. As used in this Rule,
"confidential government information" means information that has been obtained under
governmental authority and which, at the time this Rule 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. A firm with which that lawyer is associated may undertake or continue
representation in the matter only if the disqualified lawyer is timely screened from any
participation
in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer
currently serving as a public officer
or employee: shall not participate in a matter in which the lawyer participated
personally and
substantially while in private practice or nongovernment employment, unless under applicable
law
no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter
and,
all persons and entities involved in the former representation consent. If these conditions cannot
be
met, the lawyer must resign public office or employment
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) 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 its consent; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this rule, the term "matter" includes, in addition
to the definition in Rule 1.7(e), any
matter covered by the conflict of interest rules of the appropriate government agency
:
(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.
(f) 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.
Comment
This Rule prevents a lawyer from exploiting public office for the advantage of a
private client. It
is a counterpart of Rule 1.10(b), which applies to lawyers moving from one firm to
another.
[1] A lawyer representing a government agency, whether employed or
specially retained by the
government, who has served or is currently serving as a public officer or
employee is subject to
these Rules, including the prohibition against representing adverse interests
stated in Rule 1.7 and
the protections afforded former clients in Rule 1.9. In addition, such a lawyer
is may be subject to
Rule 1.11 and to statutes and government regulations regarding conflict of
interest. Such statutes
and regulations may circumscribe the extent to which the government agency may give consent
under this Rule.
[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.
[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.
[4] Where This Rule represents a balancing of interests. On
the one hand, where the successive
clients are a public government agency and a private
another client, public or private, the risk exists
that power or discretion vested in that agency public authority might
be used for the special benefit
of a private the other client. A lawyer should not be in a position
where benefit to a private the other
client might affect performance of the lawyer's professional functions on behalf of
public authority
the government. Also, unfair advantage could accrue to the private
other client by reason of access
to confidential government information about the client's adversary obtainable only through the
lawyer's government service. However On the other hand, the rules
governing lawyers presently
or formerly employed by a government agency should not be so restrictive as to inhibit transfer
of
employment to and from the government. The government has a legitimate need to attract
qualified
lawyers as well as to maintain high ethical standards. Thus a former government lawyer is
disqualified only from particular matters in which the lawyer participated personally and
substantially. The provisions for screening and waiver in paragraph (b) are
necessary to prevent the
disqualification rule from imposing too severe a deterrent against entering public service.
The
limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party
or
parties, rather than extending disqualification to all substantive issues on which the lawyer
worked,
serves a similar function.
[5] When a lawyer has been employed by the client is an agency of one
government agency and
then moves to a , that second government
agency should be treated it may be appropriate to treat the
second agency as a private another client for purposes of this Rule
if the lawyer thereafter represents
an agency of another government, as e.g., when a lawyer
represents is employed by a city and
subsequently is employed by a federal agency. However, because the conflict of interest is
governed
by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires
a
law firm to do. The question of whether two government agencies should be regarded as the
same
or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule
1.13
Comment[9].
[6] Paragraphs (a)(1) and (b) and (c) contemplate a screening
arrangement. See Rule 1.0(n)
(requirements for screening procedures). These paragraphs do not prohibit a lawyer from
receiving
a salary or partnership share established by prior independent agreement. They
prohibit, but the
lawyer may not receive compensation directly relating the attorney's compensation to the
fee in the
matter in which the lawyer is disqualified.
[7] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, should be given as soon as practicable after the need for screening becomes apparent.
Paragraph (a)(2) does not require that a lawyer give notice to the government
agency at a time when
premature disclosure would injure the client; a requirement for premature disclosure might
preclude
engagement of the lawyer. Such notice is, however, required to be given as soon as practicable
in
order that the government agency will have a reasonable opportunity to take appropriate action if
it believes the lawyer is not complying with this Rule.
[8] Paragraph (b) (c) operates only when the lawyer in
question has knowledge of the information,
which means actual knowledge; it does not operate with respect to information that merely could
be imputed to the lawyer.
[9] Paragraphs (a) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.
Paragraphs (c) and (d) do not disqualify other lawyers in the agency with which the
lawyer in
question has become associated.
The term "matter" is defined by Rule 1.7(e). That definition may be expanded for
the purposes of
this Rule by government agencies' conflict of interest rules.
Reference: Minutes of the Professional Conduct Study Subcommittee of the Attorney Standards Committee on 04/26/85, 01/10/86 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 11/14/03, 11/19/04, 06/14/05, 09/09/05.