The Information-Based Conflict

Confidential Government Information

The Information-Based Conflict

A lawyer who leaves public service may carry away what the government learned about private people: a taxpayer's finances, a licensee's inspection history, a company's confidential filings. Model Rule 1.11(c) stops the lawyer from turning that knowledge against the people it concerns. Unless other law expressly permits otherwise, a lawyer who has information the lawyer knows is confidential government information about a person, acquired as 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 that person's material disadvantage.¹

The rule defines its key term. Confidential government information is information obtained under governmental authority that, when the rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public.² The next section takes that definition apart element by element.

The bar does not stop with the lawyer. Rule 1.11(c) also prohibits the lawyer's firm from undertaking or continuing the adverse representation.³ The firm may proceed, however, if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee.⁴ The firm-protection sections below develop that exception.

Knowledge, Not Participation

Paragraph (a) of the same rule shows what makes paragraph (c) distinctive. It governs a lawyer who has formerly served as a public officer or employee,⁵ and it asks what the lawyer did in office. The former government lawyer may not represent a client in connection with a matter in which the lawyer participated personally and substantially, unless the appropriate government agency gives informed consent, confirmed in writing.⁶ Participation is 'personal' when the lawyer took part directly, not merely by serving in an office where others handled the matter. It is 'substantial' when it goes beyond routinely forwarding a document or taking a ministerial step; court appearances, interviews of clients or witnesses, preparation of litigation documents, and strategy discussions all qualify.⁷

Paragraph (a)(1) also subjects the former government lawyer to Rule 1.9(c),⁸ so the lawyer may not use or reveal confidential information relating to the representation of the government as a former client.⁹ Both of those protections look back at the lawyer's work for the government, and under paragraph (a) the agency holds the power to consent. Paragraph (c) looks instead at what the lawyer holds today, and the party it protects is the person the information concerns.

Because the trigger is knowledge, paragraph (c) can bar a representation even when the lawyer never worked on any matter involving that person. The lawyer's government role does not matter either. The rule reaches information the lawyer acquired while serving as a public officer or employee,¹⁰ so a licensing agency's deputy director who never gave legal advice is covered as fully as the agency's counsel. Rule 1.11 guards against abuse of confidential information obtained in government employment,¹¹ and a lawyer in any government post can obtain such information. Other adversaries of the person cannot, because the government may not disclose it and it is not otherwise public.¹²

Exam stems exploit this difference. A stem that says the lawyer never worked on any matter involving the adverse party answers paragraph (a) only, and paragraph (c) stays open until you ask what the lawyer knows.

Two Questions, Not One

Because the paragraphs have different triggers, ask two questions separately. Did the lawyer participate personally and substantially in a particular matter? Does the lawyer hold confidential government information about the person now adverse to the client? A fact pattern can raise either question, both, or neither.

Paragraph (c) is also narrower than it first appears. It requires information that meets the rule's own definition of confidential government information, a client whose interests are adverse to the person, and a matter in which the information could be used to that person's material disadvantage. The screening exception then keeps one lawyer's disqualification from closing the whole firm to the work.

Variations Among Rules

Versions of Rule 1.11 do not all treat knowledge alike. The version quoted in Ryan-Walsh, Inc. v. M/V Ocean Trader bars a private-client representation in a matter (1) in which the lawyer participated personally and substantially, (2) about which the lawyer acquired knowledge of confidential information as a public officer or employee, or (3) for which the lawyer had substantial responsibility.¹³ That version frames the knowledge ground around the matter rather than around a person who could be harmed. Unless a problem names a particular jurisdiction's rule, apply the Model Rule's text.