Agency Informed Consent

Agency Informed Consent

Rule 1.11(a)(2) offers a former government lawyer exactly one way past the bar: the lawyer may represent a client in connection with the matter if “the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”¹ Each phrase of that clause screens out a different kind of approval. Who consents, what that person knows, and how the agreement is recorded each have their own answer, and a lawyer who lacks any one of the three has no consent in the rule's sense.

The consenting party must be the agency, and the reason lies in what the bar protects. A lawyer who takes on public responsibilities assumes duties of fidelity and confidentiality to the public. The bar keeps those continuing duties intact by forbidding the lawyer to convert work done in the public interest to a private end, or to use confidences received in public service for a private client.² The rule thereby stops a lawyer from exploiting a public position to attract private employers, from seeking to subvert the decision made or position advocated in public service, and from abusing confidential information gained in government employment.³ Those interests belong to the public, and the agency speaks for the public. The private client who wants to hire the lawyer holds none of them and gains from the lawyer's inside experience, so the client's approval would let the beneficiary bless the arrangement. A private party on the other side of the old matter is no better placed, because the confidences at stake relate to the government client and not to that party. The lawyer's own conclusion that the later work is harmless does not count either, since the rule asks for the agency's consent and not the lawyer's judgment.

Consent is informed only when the agency knows what it is approving. That requires two disclosures: what the lawyer actually did in the matter while in public service, and what the lawyer now proposes to do for a private client. The first shows the agency what influence and confidential knowledge the lawyer carries, and the second shows whether that role could be turned against the position the government took. An agency that agrees without learning that the lawyer ran the investigation of the party she now wants to represent has accepted a risk it never saw.

The writing requirement does its own work. An agency official who says yes on the telephone, however well informed, has not satisfied the clause until the agreement is confirmed in writing. A document fixes that the agency agreed and what it agreed to, so a later dispute can be settled by reading the page instead of comparing memories.

Each approval in that scene meets a different phrase of the clause. The owner is not the agency, so the first phrase fails. The deputy's call carried no account of Okafor's earlier role and no writing, so the second and third phrases fail, and the bar still applies to him. Reyes's exchange of letters satisfies all three at once, and Rule 1.11(a)(2) no longer prevents her from taking the case.

Consent helps only where the governing rule treats the conflict as waivable. In Iowa Supreme Court Attorney Disciplinary Board v. Johnson, a lawyer who had left government service obtained the written consent of the state agency, DHS, to her representation of juveniles in the cases behind the ethical complaint, and she argued that the consent should defeat any violation of the disciplinary rules.⁴ She pointed to Iowa's new rule 32:1.11, which expressly authorizes a former government lawyer to represent a client when the appropriate agency gives informed written consent.⁵ The court answered that the new rule was not controlling. Under the rules prevailing when she acted, it held, the conflict was not subject to waiver, a position consistent with a formal opinion of the state's ethics board and with the court's earlier decision in Sorci.⁶ A document that would satisfy the Model Rule today was therefore worth nothing under a rule that treated the conflict as unwaivable.

The court did treat Johnson's care as relevant, but to the sanction and not to the finding of a violation. It imposed a public reprimand instead of the suspension the Commission had recommended, and it said that choice was strongly influenced by her lack of a prior disciplinary record and by the steps she took to avoid potential conflicts before starting her employment.⁷ That division follows from what each question asks. Whether a violation occurred turns on what the lawyer did and on whether the agency's release was effective under the rule then in force. How severely to punish a violation turns on the lawyer's record and conduct. Care and a clean record can soften the punishment, but they do not turn a non-waivable conflict into a waivable one.

The Model Rule itself has changed over time. The version quoted in a footnote in Ryan-Walsh, Inc. v. M/V Ocean Trader provided that a lawyer “shall not represent a private client” in a matter the lawyer handled personally and substantially as a public officer or employee “unless the appropriate government agency consents after consultation.” The portion quoted contains no requirement of a writing.⁸ The current text asks instead for “informed consent, confirmed in writing.” Because versions differ, an answer should state the Model Rule's current formulation and then check whether the governing jurisdiction's own wording departs from it.

A fact pattern that mentions consent therefore calls for four checks: who gave it, what that person knew, whether it was recorded in writing, and whether the governing rule treats the conflict as waivable at all.