What Counts as a Matter

What Counts as a Matter

Model Rule 1.11(a)(2) bars a former government lawyer from representing 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.¹ The noun carries the rule. The participation inquiry asks what the lawyer did in a matter, the connection inquiry compares the new engagement with a matter, and the agency’s consent is consent to work on a matter. Until the government work qualifies as a matter, none of those inquiries has anything to measure.

The rule reaches only government work that involved some particularized position, action, or disposition with respect to a specific person, entity, or group, as distinct from governmental activity or policymaking of more general scope.² That limit follows from the harms the rule targets: a lawyer exploiting a public position to look attractive to future private employers, later subverting a decision made or a position advocated in public service, and abusing confidential information obtained in office.³ Each harm needs an identifiable party to favor, to oppose, or to learn secrets about.

Three questions organize this section. What qualifies as a matter? Why do regulations, general policy, and legislation fall outside the term? And when does a later private engagement count as the same matter as the earlier government work? Exam writers favor the second question, because rulemaking looks weighty and public yet does not trigger the bar.

Particular Matters With Parties

Rule 1.11(e) defines “matter” for the whole rule, and the definition has two prongs.⁴ The first prong is a list: “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.”⁵ Sorted by what the government is doing in each item, the list falls into five groups:

• Proceedings, whether judicial or of some other kind, such as a lawsuit or an administrative hearing.
• Requests for a determination, such as an application or a request for a ruling.
• Commitments, meaning the contracts the government makes.
• Disputes, meaning claims and controversies.
• Enforcement steps, meaning investigations, charges, accusations, and arrests.

Each group marks a point where government business touches identifiable parties. A lawsuit has a plaintiff and a defendant, an application has an applicant, a contract has a counterparty, a claim has a claimant, and an investigation has a target. No item is a regulation, a statute, a policy, or a body of law, and the closing catch-all, “other particular matter involving a specific party or parties,” extends the list only by resemblance.

The decision in re Sofaer reads the list the same way. It draws on the observation that, although a precise definition is hard to formulate, the term “seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties,” and that examples best show its scope.⁶ Professors Hazard and Hodes state the same line as a distinction between “matters of general policy, on the one hand, and specific matters involving identifiable parties and particularized facts on the other.”⁷

The other side of the line holds work whose subject is the law rather than a set of parties. The committee view quoted in the same decision holds that drafting, enforcing, or interpreting government or agency procedures, regulations, or laws, and briefing abstract principles of law, does not disqualify a lawyer from later private work involving the same regulations, procedures, or points of law. That work lacks discrete, identifiable transactions or conduct involving a particular situation and specific parties.⁸

The object of the work decides the question, and the label on it does not. An investigation of a named company is on the list of matters, while enforcing or interpreting an agency’s regulations in the abstract falls on the other side of the committee’s line.⁹ The converse also holds. A matter need not be a lawsuit and need not have an adversary, because applications and contracts are listed matters whether or not anyone opposes them. A fact pattern that stresses how weighty or public the earlier work was therefore asks the wrong question. The right one is whether specific parties stood behind the work.

The second prong brings in any other matter covered by the conflict of interest rules of the appropriate government agency.¹⁰ It adds to the first prong and removes nothing from it. When a stem says the agency’s own conflict rules cover the earlier work, the work counts as a matter under Rule 1.11 even if it fits none of the listed categories neatly.

Policymaking and Rulemaking

Drafting a regulation, developing a general policy position, or working on a bill ordinarily is not a matter, so it never triggers Rule 1.11(a)(2). Comment [3] to the rule, as quoted in Sofaer, says that “[t]he making of rules of general applicability and the establishment of general policy will ordinarily not be a ‘matter’ within the meaning of Rule 1.11.”¹³ Because the bar attaches only to a matter, showing that the earlier work was general rulemaking is the first argument to make against it.¹⁴

The exclusion rests on the harms the bar targets. A government employee who proposes, drafts, or enacts legislation or rules, or who develops general policy positions, is less likely to curry particular favor with specific private interests, and the rule is concerned with that kind of favor. Such activities fall outside the special regulation of conflicts in Rule 1.11(a).¹⁵ A rule that binds a whole class also takes no side against any named party, so the drafter has no side to switch when she later represents one affected client.

Both lawyers worked for the same agency in the same field of tax law, so neither the employer nor the subject area explains the different results. The object of the work does. The drafter’s regulations spoke to every taxpayer who incurs business travel expenses, and the later action over their meaning is a fresh proceeding in which he took no part on the government’s side. The litigator’s work was directed at one taxpayer, and the new engagement would put her back in the proceeding she handled for the government. The committee view quoted in Sofaer draws the same line: work on regulations does not disqualify a lawyer from later private work involving them, because the discrete transaction between identifiable parties that makes up a matter is missing.¹⁶

The exclusion is harder to apply when one party’s conduct prompted the rule, and an exam writer can build that pressure into a fact pattern.

Two features of that scenario support the answer. The amended regulation binds every party in its class, so the attorney’s work product was a rule and not a position taken about that union. The enforcement action is also a separate proceeding from the rulemaking, and the attorney took no part in it for the government. The result would change if he had acted on the union’s own affairs, for instance by leading an investigation of the union’s conduct or by deciding the union’s request for a ruling, because an investigation and a request for a determination are listed matters involving a specific party. The dividing line is therefore between general rulemaking and action in a particular proceeding. A stem that stresses how closely the rule was tied to one party’s conduct does not by that fact alone turn the rulemaking into a matter.

The word “ordinarily” in the comment leaves room for edge cases, and the treatment of a lawyer who later challenges the validity of her own rule is less settled.¹⁷ That conduct resembles the harm of turning one’s public work against the public, even though no specific party stood behind the drafting. Anchor the analysis on classifying the earlier work. General rulemaking, policy, or legislative work is not a matter, and the bar does not apply. Action in a particular proceeding involving specific parties is a matter, and the bar applies unless the agency consents. Concluding that the work was not a matter answers only the Rule 1.11(a)(2) question, because the former government lawyer’s separate duty not to use or reveal confidential information from the public work continues, as a later section explains.¹⁸

The Same Matter Later

Once the government work is a matter, Rule 1.11(a)(2) bars only a later representation “in connection with” that matter.²⁰ Sofaer states the link in two parts. The government lawyer participated as a public employee in a matter, both personally and substantially, and then left government and accepted employment in another matter that is the same as, or substantially related to, the original matter.²¹ The words “substantially related” measure closeness to the original transaction, so a later engagement can be connected to the government matter without carrying the same caption.

The link matters because the harms attach to a transaction. A lawyer who was intimately involved in adopting a policy, making a decision, or advocating a position on a discrete matter involving identifiable parties may not later convert that public work to a private end or use the confidences received in public service for a private client.²² In Sorci v. District Court, the Iowa Supreme Court affirmed the disqualification of a former assistant county attorney and explained that the prohibition prevents “the treachery of switching sides” in an ongoing matter, protects confidential information, and removes any suspicion that a lawyer conducted government work to win future employment. Public trust would also suffer if a lawyer could play different roles for different parties in the same ongoing matter.²³ Switching sides requires a side already taken in a particular dispute, so when the later work belongs to a different transaction, that harm has nothing to attach to.

Sameness is judged by the underlying transaction or dispute. The committee view quoted in Sofaer gives two anchors: “The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter.”²⁴ A later engagement can therefore carry a new client and a new posture and still be the same matter, if it carries the same dispute forward.

The harder question concerns a later client who is adverse to the same party the lawyer dealt with in government but wants something different from it.

In that scene the party stayed constant and the transaction changed. The statute named in the complaint is not the test either. If the citizens group had sued over the very discharges the enforcement case covered, the suit would involve the same issue of fact among the same parties and the same conduct, and it would be the same matter under any statute. A stem that stresses the sameness of the defendant is pointing at the wrong variable, because the question is whether the later work is tied to the same basic transaction.

Stopping at “different matter” clears only the Rule 1.11(a)(2) question. The former EPA lawyer still may not use or reveal confidential information she obtained about CleanCo in the enforcement case, because Rule 1.11(a) separately forbids that for any former government client.²⁵ An answer that clears the new suit without asking what she learned about CleanCo in office has missed the point where the confidentiality duty takes over, a duty taken up in a later section.