Overlapping Federal Statute

Overlapping Federal Statute

A former government lawyer who clears Rule 1.11 has answered only the question the professional rule asks. The rule bars the 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 consents in writing.¹ But Rule 1.11 is a standard of lawyer ethics, enforced through professional discipline, and it does not supersede government ethics statutes. Those statutes are often enforced by criminal penalties, and they may place similar or additional restraints on former government employees.² A single move from public service to private practice can therefore fall under two bodies of law, each with its own enforcer and its own sanctions. Compliance with one does not excuse a violation of the other.

The federal statute that regulates conflicts of interest for persons who have left federal service overlaps with Rule 1.11 in language but is stricter. Among its limitations are two tiers that a student should be able to contrast:

• A permanent bar on representation by a former federal employee 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.”³
• A two-year restriction on representation by the former federal employee in matters that fell within the broader scope of the employee’s “official responsibility as such officer or employee.”⁴

The tiers differ in what triggers them and in how long they last. The permanent bar demands the same hands-on connection that the rule demands, and it never expires. The two-year restriction reaches the broader class of matters within the employee’s official responsibility, and it expires after two years. A lawyer who escapes the rule because she never participated personally in a matter may therefore still fall under the statute’s shorter tier.

Because the statute and the rule share the phrase “personally and substantially,” the regulations that implement 18 U.S.C. § 207 offer a natural resource for interpretation. One opinion says they “provide some insight” on the issue before it, while noting that they arise in the distinct context of guiding interpretation of a criminal statute banning conflict of interest by government employees.⁵ A court that borrows from them is borrowing from a different enforcement system.

Two former officials show how the tiers separate from the rule’s single filter.

The absence of personal participation cleared Marsh under the rule and spared her the statute’s permanent tier. It did not spare her the second tier, which asks only whether the matter was within her official responsibility. Dunleavy’s hands-on work triggered both systems at once, and clearing one would have left the other open. When Rule 1.11 comes out in a former government lawyer’s favor, the analysis is therefore incomplete until the applicable government ethics statute has been checked.