Personal and Substantial Participation

Model Rule 1.11(a) bars a former government lawyer from representing a client in 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 previous section asked what counts as a matter. This one asks which of the people who worked on a matter carry the bar into private practice. An agency has many lawyers and officials, and they touch any one matter in very different ways. The two adverbs do the sorting. "Personally" asks whether this lawyer took part in the matter at all, and "substantially" asks whether that part weighed enough to count.

The rule itself defines neither word. One District of Columbia disciplinary decision noted that the comments to Rule 1.11 do not address personal and substantial participation and that no local case had interpreted the phrase in a disciplinary proceeding.² The working meaning therefore comes from commentary, from a few judicial statements, and from the federal conflict statute, all discussed below.

The rule uses two filters because of the harms it targets. It stops a lawyer from exploiting a public position to look more attractive to future private employers, from later subverting a decision made or position advocated in public service, and from abusing confidential information obtained in government employment.³ Each harm requires that the lawyer have had a real hand in the matter. A lawyer who never took part had no decision to subvert and no position to reverse. A lawyer whose contact was incidental had little to exploit.

Both filters must be cleared before the bar applies. A lawyer who fails either one is free of the bar on representing a client in the matter. Her separate duty not to use or reveal confidential information from the government work continues, as a later section explains.⁴

Personal Participation

The first adverb points at the individual lawyer and not at her office. The bar attaches only when the lawyer participated "personally," that is, directly in the matter while serving in a public position. It does not attach merely because she served in the same governmental office as other officers or employees who handled the matter.⁵ An agency's involvement in a matter is therefore a fact about the agency. The rule looks inside the agency and asks who touched the matter, so working in the agency and working on the matter become two different things.

Tying the bar to the individual follows from what each of the rule's concerns requires. A lawyer can use a public post to attract employers only by exercising influence over some decision. She can turn a position against the public only after taking that position, and she can misuse confidences only after receiving them on the matter. A colleague down the hall satisfies none of those conditions, because the decision was not hers to shade, the position was not hers to reverse, and the file never reached her desk. An office-wide bar would also sweep in lawyers who present none of the dangers the rule exists to prevent. Drawing the line at direct participation keeps the restriction on lawyers whose own work and knowledge the rule concerns.

Because the text and comments say so little, the working meaning of "personally" is the ordinary one: the lawyer's own hands were on the matter.

Several facts in that scene might tempt a reader to bar her: the same office, the same years, and a lawsuit she now defends against. All of them point at the wrong variable. The question is whether she touched the matter. Had her colleague asked her for advice on the case, she would have participated personally, and the analysis would move on to the second filter, whether her participation was substantial.

Substantial Participation

Once a lawyer is shown to have taken part in a matter directly, the second adverb asks how much she contributed. Participation must be "substantial," something beyond routinely forwarding a document or taking a purely ministerial action that involved no exercise of discretion.⁷ The rule thus sorts a lawyer's contacts with a matter into those that carried judgment and those that carried only paper, and only the first kind triggers the bar.

The dangers behind the bar explain the line. A lawyer can bend a decision toward a future employer, undo a position taken for the public, or exploit confidences only if she made choices in the matter or learned something that mattered. A lawyer who passed a document along, or sat in a meeting where the matter came up, had no discretion to shade. She took no position that a later private client could ask her to reverse, and she gained little that could give a new client an advantage. A lawyer who appeared in court, interviewed witnesses, drafted pleadings, or discussed strategy shaped the matter and learned its confidences, so each of the rule's concerns is live.

The work that clearly counts has one feature in common: each task calls for the lawyer's own judgment about the matter. The recognized examples are these:⁸

Court appearances on behalf of the government in the matter.
Interviews of clients or witnesses.
Preparation of litigation documents.
Discussions of strategy about how the matter should be handled.

Each of these either commits the government to a course of action, as when a lawyer appears in court or prepares a pleading, or exposes the lawyer to confidences, as when she interviews a witness or joins a strategy discussion.

The Iowa Supreme Court's decision in Sorci shows the same logic. The court affirmed a disqualification that turned on the former assistant county attorney's past governmental duties, and it said that "[a]dvising a client, authoring correspondence or reports, signing a pleading, and appearing at a hearing each involve substantial responsibility."⁹ The court explained that the prohibition prevents "the treachery of switching sides" in an ongoing matter, protects confidential information from being jeopardized, and removes any suspicion that a lawyer conducted government work in a way that would help her acquire future employment.¹⁰ One qualification matters before an exam answer leans on the quotation. The court was applying a prohibition framed in terms of "substantial responsibility." Its list therefore illustrates the kind of government work that counts, and it does not construe the Model Rules' phrase "participated personally and substantially."

At the other end of the range is work that moves a matter along without engaging the lawyer's judgment.

Hypothetical Illustration

A lawyer in a city law department attends a weekly staff meeting at which a supervisor mentions a pending contract claim against a vendor. She says nothing and takes no assignment. A few weeks later she is asked to pass the vendor's demand letter to the colleague handling the claim, and she does so with no comment and no decision about what should be done with it. Years afterward, in private practice, she is retained by the vendor to defend that same claim. The claim is a matter, and the new work is connected to it. But a silent presence at a meeting and a routine forward of a document involve no exercise of discretion, so her participation was not substantial and the bar does not apply. A colleague who read the same letter, decided that the department would contest the claim, and drafted the answer would stand differently, because deciding and drafting are discretionary work of the kind that counts.

The two lawyers in that scene worked in the same department and handled the same demand letter, so neither the employer nor the document explains the different results. The deciding variable was whether the lawyer made any choice about the matter. The lawyer who forwarded the letter arguably touched the matter and may satisfy "personally" in a thin sense. But the two adverbs are separate screens, and the second filters out contact that involved no discretion.

A stem that stresses seniority, length of agency service, or a name on a routing slip is therefore pointing at the wrong fact. The listed examples are defined by the kind of act: appearing, interviewing, drafting, and strategizing. A single act of that kind, such as signing a pleading, can qualify. A conclusion that the participation was not substantial ends only the representation analysis, because the former government lawyer's separate duty not to use or reveal confidential information from the government work continues.¹¹

The federal conflict statute supplies parallel guidance. The District of Columbia decision noted above looked for insight to the regulations implementing 18 U.S.C. § 207, a criminal statute banning conflicts of interest by government employees.¹² Section 207 uses the same phrase. It permanently bars a former federal employee from representation in a particular matter involving specific parties in which the United States has a direct and substantial interest and in which the employee participated "personally and substantially."¹³ The statute overlaps with Rule 1.11 but is stricter and is often enforced by criminal penalties. It informs the phrase's meaning without displacing the professional rule, a point the last section of this chapter takes up. A statement from outside the disciplinary setting points the same way. In Ponnapula, a civil contract action, the Sixth Circuit said that "[a] statute aimed at preserving the integrity of the decisionmaking process does not need to extend to employees who have no discretion to affect that process."¹⁴